Bell v The State of Western Australia [No 2]
[2014] WASC 260
•21 JULY 2014
BELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 260 | |
| Case No: | INS:220/2013 | 21 JULY 2014 | |
| Coram: | HALL J | 21/07/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for trial by judge alone granted | ||
| B | |||
| PDF Version |
| Parties: | MERVYN KENNETH DOUGLAS BELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for trial by judge alone Whether interests of justice require a trial by judge alone Whether photographic evidence of injuries likely to be so distressing as to impede assessment Whether directions likely to be effective Turns on own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 118 |
Case References: | Arthurs v The State of Western Australia [2007] WASC 182 Coates v The State of Western Australia [2009] WASCA 142 R v Jeffrey [1967] VR 467 R v Zammit [1999] NSWCCA 65 Schmidt v The State of Western Australia [No 3] [2014] WASC 156 The State of Western Australia v Rayney [2011] WASC 326 TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for trial by judge alone - Whether interests of justice require a trial by judge alone - Whether photographic evidence of injuries likely to be so distressing as to impede assessment - Whether directions likely to be effective - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 118
Result:
Application for trial by judge alone granted
Category: B
Representation:
Counsel:
Applicant : Mr E J Myers
Respondent : Ms A L Forrester
Solicitors:
Applicant : E J Myers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Arthurs v The State of Western Australia [2007] WASC 182
Coates v The State of Western Australia [2009] WASCA 142
R v Jeffrey [1967] VR 467
R v Zammit [1999] NSWCCA 65
Schmidt v The State of Western Australia [No 3] [2014] WASC 156
The State of Western Australia v Rayney [2011] WASC 326
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
- HALL J:
Introduction
1 The accused is charged that on 20 March 2013 he murdered Charles Allan William Edward Derschow-Mullaley (the deceased). He is also charged that on or about the same date he sexually penetrated the deceased. He has entered pleas of not guilty to those charges and a trial has been set down commencing 18 August 2014.
2 An application has been filed by the accused seeking an order that the trial be by judge alone. That application is made pursuant to s 118 of the Criminal Procedure Act 2004 (WA). Any such application must be made before the identity of the trial judge is known to the parties. In this case the identity of the trial judge is not yet known.
Relevant principles
3 Section 118 provides as follows:
118. Trial by judge alone without a jury may be ordered
(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2) Any such application must be made before the identity of the trial judge is known to the parties.
(3) On such an application, the court may inform itself in any way it thinks fit.
(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5) Without limiting subsection (4), the court may make the order if it considers -
(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
5 Whilst s 118(5) provides two circumstances in which the discretion may be exercised that subsection specifically does not exclude other circumstances in which it may be in the interests of justice to make an order. The interests of justice will require a trial by judge alone when the circumstances are such that there is a real and substantial doubt that a trial by jury would be fair after taking into account any directions to the jury that could be given by the trial judge. Where the issues at trial are likely to involve consideration of community standards of the type referred to in s 118(6) then that may favour a trial by jury.
6 In Coates v The State of Western Australia Buss JA (Martin CJ & Owen JA agreed) said:
Significantly, the specific circumstances referred to in s 118(5) and s 118(6) are expressed to be without limitation to s 118(4). It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.
The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury. It is unnecessary in the present case to rule on the correctness of the different views on the application of s 118 expressed in The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 (EM Heenan J), Arthurs v The State of Western Australia [2007] WASC 182 (Martin CJ) and TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 (McKechnie J).
The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined [103] - [105].
7 In a number of cases the potential for publicity to have a prejudicial effect upon a fair trial has been a material factor in making an order for trial by judge alone: See TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183, Arthurs, Rayney and Schmidt v The State of Western Australia [No 3] [2014] WASC 156. In the present case publicity is not relied upon. In written submissions counsel for the accused accepted that 'this case has not attracted unwarranted publicity'. Nor has it been suggested that publicity during the trial would be likely to render any trial unfair.
8 The application is brought on the sole basis that the nature of some of the prosecution evidence is likely to be so graphic and upsetting as to prejudice any proper assessment of the evidence by a jury. In order to understand this submission it is necessary to say something about the prosecution case.
The prosecution case
9 The State alleges that on 19 March 2013 the accused and his de facto partner, Ms Tamika Mullaley, had a violent domestic argument. They were residing in Broome at the time and the deceased was Ms Mullaley's 10-month-old son. The State alleges that at about 11.00 pm the accused collected the deceased from a relative and then left Broome in a four wheel drive motor vehicle heading south. At that time the deceased had no significant injuries.
10 At around 2.00 pm on the following day the accused took the deceased to the Fortescue Roadhouse and sought medical assistance. An ambulance was called but it was apparent that the deceased was already dead. Post mortem examinations established that the deceased had numerous injuries. Those injuries included fractures to the left arm and left leg, multiple abrasions and bruises to the head, torso, arms, legs, hands and feet, burns to various parts of the body, bruising to the perianal area and to the scrotum and base of the penis and splits in the anal canal with evidence of bleeding within the anus. The prosecution case is that the injuries were inflicted by the accused.
11 The State case is that an inference that the injuries were inflicted deliberately and with an intention to kill the deceased or cause him a life endangering injury can be drawn from the following:
(1) the number, nature and spread of the injuries;
(2) the failure of the accused to seek earlier medical attention for the deceased;
(3) the improbability of the injuries having been caused in the manner described by the accused in the police interview; and
(4) the assertion by the accused that the mother of the deceased caused some of the injuries - an assertion that the State will submit is a lie told out of a consciousness of guilt.
12 The State intends to present the evidence of a forensic pathologist using a computer programme that depicts the injuries on an avatar image. Such an image reduces the confronting and emotional quality that photographs of the deceased's body would have. However, the State also intend to produce some photographs of the actual injuries. This is considered necessary for two reasons. Firstly, to accurately show the nature and extent of the injuries in order to support an inference that they were inflicted deliberately and with an intent to kill or to do life endangering injury. Secondly, to rebut suggestions made by the accused in his interview with the police that the injuries were caused accidently when the deceased fell out of the moving four wheel drive vehicle and was later placed on hot rocks when the accused stopped for a break and a swim at a water hole.
13 Copies of the photographs have been produced to the court for the purposes of this hearing. It is unnecessary to describe the contents in great detail. It is sufficient to note that they focus on particular injuries and have been cropped to avoid showing more of the deceased's body than is necessary. None of the photographs show the face, though they do show parts of the head. However, the size, spread and location of the injuries is such that it is readily apparent that the deceased is a very young child. Furthermore, the injuries include some to the anus and peri-anal area which are graphic in nature.
Merits of the application
14 The accused's submission is that the nature of the photographs together with the age of the deceased are likely to invoke in the jury, or at least some of its members, strong emotions that would interfere with, or prevent, a proper assessment of the evidence. The concern is that the accused would not receive a fair trial and that the jury would be so prejudiced against him because of the nature of the injuries and the age of the deceased that they would presume him to be guilty without giving any consideration to other possible explanations for the injuries. It is submitted that any directions to the jury to put aside their emotions and assess the evidence in a dispassionate way are unlikely to be effective. Even with the best of intentions to follow directions, a jury is unlikely to be able to avoid being influenced by an emotional reaction to the evidence.
15 Whilst I accept that the photographs are relevant to the issues at trial and that an effort has been made to limit the number that need to be used, they are nonetheless likely to be shocking and upsetting. The State say that the possible emotional impact would be reduced because the photographs would be produced in the course of expert medical evidence. This, it is said, would ensure the jury were provided with appropriate context and had their attention directed to the aspects of the evidence that are relevant to the issues. Whilst I accept that this context may go some way to obviating any risk of unfairness I do not think it could be safely said that emotional responses would not impede an assessment of the evidence.
16 Of course the character of the photographs will not change whether the trial is by judge alone or judge and jury. Judges are not immune from the emotional impact of evidence. However, judges are accustomed to the discipline of putting aside their emotions to apply themselves dispassionately to the evidence. That is something that may be extremely difficult for members of a jury to do.
17 The State submits that there is nothing unusual about jurors viewing graphic photographs in the context of a murder trial: R v Jeffrey [1967] VR 467. In R v Zammit [1999] NSWCCA 65 Wood CJ at CL suggested that the sensitivity of jurors to photographs can be too easily overstated and that there was no reason why photographs that had probative value should not be tendered. However, the issue in those cases was whether photographs should have been received in evidence, not whether the interests of justice required a trial by judge alone. An appeal court considering whether the admission of evidence has caused a miscarriage of justice is not applying the same test as a judge considering whether it is in the interests of justice to order a trial by judge alone. Furthermore, it is not just the graphic nature of the photographs that is relevant in this case but the age and vulnerability of the deceased and the significance of the evidence to the issues in the case. It is likely that the photographs will play a significant part in the trial. Both prosecution and defence will ask witnesses (and the jury if there is one) to pay close attention to the injuries in considering how they could possibly have been caused.
18 Another factor that favours trial by judge alone is that following such a trial a judge is required to give detailed written reasons. Where the evidence has included material of a particularly shocking type the existence of written reasons will provide an assurance that any decision has not been influenced by the emotional quality of that evidence. This was a consideration referred to by the Chief Justice in Arthurs:
The second factor which I take into account is the possible effect which the evidence as to the circumstances of the offence might have upon a jury. As I mentioned earlier, it is, I think, neither necessary nor appropriate for me to detail those circumstances other than to observe that the evidence is likely to test the emotional strength and fortitude of any person required to consider it in detail, whether juror or Judge.
Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict. That consideration seems to me to lend weighty support in this case to the proposition that trial by Judge without jury is in the interests of justice [88] - [89].
19 In this case the accused's counsel has referred to the concern of the accused as to whether he could receive a fair trial by jury. That is a relevant consideration. The provision of reasons could address that concern.
20 Having regard to the photographs on which the prosecution wishes to rely I am satisfied that the potentially shocking nature of those photographs is likely to impede the ability of potential jurors to apply their minds dispassionately to the evidence. It is probable that at least some jurors will find the photographs so upsetting that they will be unable to properly consider the relevance and significance of what they depict.
21 It is of course in the interests of justice that jurors should be able to properly consider all of the relevant evidence. In many, if not most, cases a direction to the jury in that regard is likely to be effective. However in this case I am not confident that such a direction would have the desired effect.
22 I do not mean by this to suggest that jurors are not capable, or less capable, of dealing with shocking or confronting evidence. It is in the nature of many trials, particularly those involving allegations of murder or sexual assault of children, that they will include such evidence. Experience has shown that jurors are generally able to deal appropriately with such evidence. Directions from the trial judge not to allow their judgment to be influenced by emotions are usually effective. However, in the particular circumstances of this case there is reason to doubt whether such directions would be effective. That is not only because of the nature of the photographs, it is also because the deceased was a very young and vulnerable child and the significance that the evidence is likely to have at the trial. If, as seems probable, there is a real issue as to how the injuries were caused then the photographs may require close and lengthy attention. Such attention would almost certainly be a strain on the power of jurors to remain focussed and detached.
23 The State submits that it is not reasonable to suggest that if a jury had a doubt about the involvement of the accused in the deceased's death they would resolve that doubt by prejudicial reasoning based on the nature of the photographs. The State also submits that prejudicial reasoning as to intention would be unlikely given the availability of comprehensive expert evidence as to the injuries. Those submissions may well have some merit, but they assume that the only possible prejudice that could arise from the photographs is an assumption of guilt. As I have stated earlier, the accused may be prejudiced in another way; that is jurors may find the photographs so disturbing that they are simply unable to properly consider the relevance and significance of what is depicted.
Conclusion
24 I am satisfied that in the particular circumstances of this case it is in the interests of justice to grant the application for a trial by judge alone.
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