Cooper v The State of Western Australia - [2017] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: COOPER -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 248

CORAM: MCGRATH J

HEARD: 22 AUGUST 2017

DELIVERED : 25 AUGUST 2017

FILE NO/S: INS 174 of 2017

BETWEEN: GRAEME COOPER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Accused's application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Substantial pre‑trial publicity of sentencing of co-accused

Legislation:

Criminal Code (WA)
Criminal Procedure Act 2004 (WA), s 118

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Mr S B Watters
Respondent: Mr D L S Davidson

Solicitors:

Applicant: Saupin Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Arthurs v The State of Western Australia [2007] WASC 182
Bell v The State of Western Australia [No 2] [2014] WASC 260
Chiha v The State of Western Australia [No 2] [2015] WASC 147
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Wark [2017] WASC 154
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

MCGRATH J: The applicant, Mr Cooper, is charged with wilfully and unlawfully damaging property by fire contrary to s 444 of the Criminal Code (WA), making a false statement to police with the intention of creating a false belief, namely a belief that an offence had been committed contrary to s 171 of the Criminal Code and further, with intent to defraud by deceit or fraudulent means, attempted to gain a benefit, namely a sum of money, contrary to s 409 of the Criminal Code.
Mr Cooper has pleaded not guilty to the three counts and will appear for trial commencing on 15 January 2018.
Mr Cooper applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA) that his trial be by a judge alone without a jury.
The ground of the application is that it is in the interests of justice to grant the order for a judge alone trial given the extent and nature of the pre‑trial publicity as it has created the danger of prejudice or pre‑judgment against the accused. For the following reasons, I have determined that it is in the interests of justice that Mr Cooper be tried by judge alone and therefore, exercise my discretion to so order.
In my reasons, I will consider the following matters:
(a)the nature of the State's case;
(b)legal principles relevant to an application under s 118 of the CPA;
(c)the basis for the application; and
(d)an evaluation of the interests of justice in the application.

The State case

At the time of the act of alleged arson the accused was the operator of the business at the Premier Hotel, Albany. The State case is that Mr Cooper engaged a co‑offender, Mr Gay, to arrange for the Premier Hotel to be destroyed by fire for the purpose of making a claim on an insurance policy. In turn, the State contends that Mr Gay then engaged further co‑offenders being Mr Paterson, Mr Hutchinson and Mr Hasson to deliberately set the fire at the Premier Hotel.
On 13 May 2016, the State alleges that Mr Cooper met with the co‑accused, Mr Paterson and Mr Hasson, and gave them instructions to stage a robbery on himself at the Premier Hotel, which they carried out. Mr Cooper and Mr Hasson then commenced to light fires at various locations at the hotel. Mr Hutchinson acted as the driver for the other co‑accused. The fire caused extensive damage to the interior of the premises and some structural damage causing approximately $1.5 to $2 million in damage.
The State's case is that Mr Paterson, Mr Hutchinson, Mr Hasson and Mr Gay were all paid in either money or in kind for staging the robbery and setting fire to the Premier Hotel, as requested by Mr Cooper.
On 13 May 2016, Mr Cooper made a witness statement to the police stating that he had been robbed by two men who then caused the fire at the Premier Hotel.[1] Mr Cooper presented to the police as an innocent victim of a violent attack. The State case is to the contrary - Mr Cooper was the architect of a plan to destroy the Premier Hotel in order to defraud his insurers.
[1] Prosecution brief of evidence, p 189 - 209.
The co‑offenders pleaded guilty to arson and were each sentenced on 28 July 2017 before a judge of this court.

Legal principles

Section 118 of the CPA relevantly provides:
(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.
…
The proper construction and interpretation of s 118 of the CPA has been considered in a number of decisions of the court, from which principles may be distilled. Section 118(4) of the CPA provides that the discretion of the court to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied it is 'in the interests of justice' to do so.[2] If the court is satisfied that it is in the interests of justice to do so, the court then exercises the discretion whether to make the order for trial by judge alone.[3]
[2] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [318].
[3] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21].
The phrase 'in the interests of justice' has a broad connotation and includes not only the interests of the accused but also the public interest.[4] The public interest 'in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts.'[5] The fundamental issue with which s 118 of the CPA is concerned is that the accused receive a fair trial according to law and therefore, it will be in the interests of justice to order a trial by judge alone if that is necessary to ensure that the accused receives a fair trial.[6] There must be a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law before a jury.[7]
[4] LFG v The State of Western Australia [319] - [320].
[5] LFG v The State of Western Australia [320].
[6] LFG v The State of Western Australia [321].
[7] LFG v The State of Western Australia [321].
The concept of the interests of justice, therefore, is one that should not be narrowly defined. What is in the interests of justice will vary from case to case.[8] Some guidance as to the factors that may be relevant in assessing the interests of justice is provided by s 118(5) and s 118(6) of the CPA but both subsections state that the factors listed do not limit the general operation of the concept of what might be in the interests of justice.
[8] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [17].
A number of factors have been identified and considered in other cases determining an application pursuant to s 118 of the CPA. The subjective views of the accused as to whether a judge alone trial is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[9] However, as McKechnie J observed in TVMv The State of Western Australia, to pay undue account to the subjective views of an accused person may have the result that the decision is made in the interests of the accused and not the interests of justice.[10] That is because the interests of justice are not coterminous with the interests of an accused.
[9] Arthurs v The State of Western Australia [2007] WASC 182 [79], [80]; Rayney v The State of Western Australia [26].
[10] TVM v The State of Western Australia [30] - [32].
It has been suggested that the obligation of a judge to provide reasons for decision is a relevant factor that may weigh in support of a trial by judge alone,[11] but there are differing views as to whether this is a relevant factor.[12]
[11] Arthurs v The State of Western Australia [73] - [76].
[12]TVM v The State of Western Australia [32]; The State of Western Australia v Wark [2017] WASC 154 [108].
Another factor that may be relevant to the interests of justice is the length of the trial.[13] There is not necessarily any saving in time if an accused has a judge alone trial.[14] However, a trial of extreme length may create problems for jurors who are required to forgo normal life commitments or on whom such trials may place a physical, mental or emotional burden which is too great.[15] In addition, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that the jury may be discharged for some reason without reaching a verdict.[16]
[13] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[14] Rayney v The State of Western Australia [37]; The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[15] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[16] The State of Western Australia v Rayney [37].
The fact that the State case is based upon circumstantial evidence has been considered to be a factor supporting a trial before a jury.[17] I agree with the alternative view that there is no reason why either mode of trial is preferable for the reason that the State case is based upon circumstantial evidence.[18]
[17] The State of Western Australia v Martinez [2006] WASC 25 [36].
[18] Arthurs v The State of Western Australia [61] - [67]; TVM v The State of Western Australia [15].
The nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that the jury may be unable to properly consider its relevance and significance.[19] Further, the evidence may involve intricate and disputed expert evidence or the jury may have difficulty in applying different legal principles in the context of complicated questions of fact.[20]
[19] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[20] LFG v The State of Western Australia [337]; The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147.
The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[21]
[21] The State of Western Australia v Mack[2012] WASC 127 [43].
An overarching consideration in considering whether it is in the interests of justice that an accused be tried by judge alone is whether the accused can receive a fair trial by jury.[22] Therefore, pre‑trial publicity is a significant factor. In TVM v The State of Western Australia McKechnie J outlined the extent and nature of pre-trial publicity that may create an environment in which the accused is unable to receive a fair trial. McKechnie J stated the following:[23]
…[I]t can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear.
[22] The State of Western Australia v Rayney [30].
[23] TVM v The State of Western Australia [29].
In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre‑trial publicity:[24]
The issue of pre-trial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pre-trial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527 at 532-533 per Street CJ, Yeldham and Finlay JJ agreeing; Western Australia v BLM (2009) 40 WAR 414 per Buss JA, with whom Owen, Wheeler and Pullin JJA agreed. It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM (at [70] - [73]); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J. In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (at 614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs (at [87]). Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' (at [33]).
[24] The State of Western Australia v Rayney [34].
Accordingly, the nature and extent of the pre‑trial publicity must necessarily be of such a nature that despite a detailed warning to the empanelled jury, both at the commencement and the judge's summation, the risk of prejudice or pre‑judgment could not be ameliorated.[25]
[25] LFG v The State of Western Australia; The State of Western Australia v Martinez [31] ‑ [34]; The State of Western Australia v Rayney.

The basis for the application

The gravamen of the application is that the extent and nature of the pre‑trial publicity has created a risk of prejudice and pre-judgment and accordingly, Mr Cooper will not receive a fair trial. During the hearing of this application counsel confirmed that this was the basis of the application.
The s 118 application is supported by an affidavit sworn by Mr Cooper's solicitor, Dr Saupin on 8 August 2017. Attached to that affidavit are media reports that are extensive. Those media reports may be divided into reports published in the print media and those published on online news sites. In turn, the media reports concern two relevant time periods. The first period concerns the initial reporting that the Premier Hotel had been damaged by fire, and the subsequent charging of Mr Cooper. During this period the media reports characterised Mr Cooper as a victim and then subsequently, outlined the nature of the State's allegation. The second time period embraces the media reports concerning the sentencing hearing of the four co‑accused and in particular, the sentencing remarks and findings of the sentencing judge. I will consider the media reporting for the two time periods.

Media reports prior to the sentencing of the co-accused

The initial media reports in both the print media and online publications reported the act of arson at the Premier Hotel. In the media reports Mr Cooper was represented as a victim of the robbery. The media reports were published by the ABC News online[26], the Herald Sun[27], the West Australian online news[28] and the Albany Advertiser newspaper.[29] The police released CCTV footage of Mr Cooper being attacked by two men and requested assistance from the community.[30] The CCTV footage was published in the Herald Sun online.[31] The report in the Herald Sun published the story with the title 'Albany's Premier Hotel manager robbed, bashed and historic hotel torched.'[32] The ABC reported the story with the title 'Albany hotel licensee struggles to understand motive for arson attack on historic hotel.'[33] The Albany Advertiser reported under the front page headline 'Heartbreak Hotel' that Mr Cooper's dreams were shattered after being attacked and the hotel being torched.[34]
[26] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS2 [11] ‑ [12].
[27] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS5 [17] ‑ [21].
[28] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS3 [13] ‑ [16]; Annexure MGC6 [22] ‑ [23].
[29] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS15 [42].
[30] Affidavit of Dr Marc George Saupin dated 8 August 2017 [10].
[31] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS4.
[32] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS5 [17].
[33] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS7 [24].
[34] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS15 [42].
Upon Mr Cooper being charged with the offences in the indictment, the media reports stated or inferred that Mr Cooper was the principal offender. On 19 October 2016, the ABC News online website published details of the State's case outlined at a bail application. The article referred to Mr Gay being contacted by Mr Cooper who enlisted him for the purpose of committing the act of arson due to financial issues.[35] A similar article was published on the Perth Now website[36] and a WA Today news article published online reported that the CCTV footage was staged to make Mr Cooper's claim more believable and was 'an elaborate fraud.'[37]

Media reports regarding the sentencing of co-accused

[35] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS8 [26].

[36] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS9 [27].

[37] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS10 [30].

On 28 July 2017, the four co‑offenders, who pleaded guilty to the act of arson contrary to s 444 of the Criminal Code, were sentenced. At that sentencing hearing, the sentencing judge made a number of findings of fact. Those findings were subject to public reporting both on the internet and in the print media. The reports were published in the West Australian newspaper, the West Australian online, ABC News online, Perth Now online and the Albany Examiner newspaper.
The published reporting of the sentencing remarks of the judge included publication of findings involving the actions, and hence the culpability, of Mr Cooper. The Perth Now website reported on 28 July 2017 that the sentencing judge stated that 'the hotel's licensee Graeme Roderick Cooper contacted Gay, a childhood friend, in the days before the fire, complaining that his business was struggling, and asked if he knew anybody who could "do an insurance job".'[38] The sentencing judge's further findings were then reported:[39]
He [Cooper] told Gay he needed the hotel burnt 'to the extent that he would not be able to run it anymore.' Gay recruited Paterson, telling him he would be paid $10,000 for the job, with Hutchinson and Hasson also later being enlisted. Hutchinson drove the trio from Mandurah to Albany and parked the car in the laneway at the rear of the premises while Paterson and Hasson entered the hotel and staged the robbery.
[38] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS12 [34].
[39] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS12 [35].
The sentencing judge is directly quoted as stating, as a finding of fact, 'Paterson and Hasson staged dragging Cooper into the Premier Hotel to the office, where Cooper deactivated the CCTV.'[40] The report then stated that Mr Cooper and Mr Paterson began lighting fires throughout the building.[41]
[40] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS12 [35].
[41] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS12 [35].
On 28 July 2017, the West Australian reported online on the sentencing hearing with the headline 'Men jailed after "insurance scam" arson attack at Albany hotel.'[42] That publication stated that the sentencing judge said 'the hotel's licensee Graeme Roderick Cooper contacted Gay, a childhood friend, in the days before the fire, complaining that his business was struggling, and asked if he knew anybody who could do "an insurance job".'[43] Further, it is reported that Mr Cooper told Mr Gay that 'he needed the hotel burnt "to the extent that he would not be able to run it anymore".'[44] A further finding of the sentencing judge reported was that Mr Gay was initially motivated to assist his friend Mr Cooper.[45]
[42] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS13 [37].
[43] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS13 [38].
[44] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS13 [38].
[45] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS13 [39].
On Saturday, 29 July 2017 the sentencing remarks were published in the West Australian newspaper.[46] The findings reported included that Mr Cooper made the initial arrangements by contacting Mr Gay, expressed the purpose being an insurance fraud, staged the robbery, deactivated the CCTV and with Mr Paterson began lighting fires, and then Mr Cooper handed thousands of dollars to Mr Paterson.[47]
[46] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS14 [41].
[47] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS14 [41].
On 1 August 2017, the Albany Advertiser newspaper reported the sentencing as a front page story with the headline 'Hotel Arson: Prison Time.' [48] The newspaper reported that the sentencing judge stated:[49]
[T]he hotel's licensee Graeme Roderick Cooper contacted Gay, a childhood friend, in the days before the fire, complaining that his business was struggling and asked if he knew anybody who could 'do an insurance job' telling him he needed the hotel burnt 'to the extent that he would not be able to run it anymore'.
[48] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS25 [63].
[49] Affidavit of Dr Marc George Saupin dated 8 August 2017, Annexure MGS25 [64].
The Albany Advertiser article outlined the same facts as were reported in the West Australian newspaper.

The interests of justice considered

The State's position is that it neither consents nor opposes the application.[50] At the hearing, counsel for the State did submit that the risk of prejudice could be ameliorated by directions to the jury by the trial judge.
[50] Respondent's submissions dated 18 August 2017 [16].
Counsel for Mr Cooper relied principally on the media reporting of the sentencing hearing of the four co‑accused though placing reliance on the prominent media reporting prior to that hearing. Counsel for Mr Cooper also referred to the publication of the sentencing remarks on the Supreme Court website. On 3 August 2017, the sentencing judge's remarks were made the subject of a suppression order. The applicant accepts that 'it is reasonable to assume only the keenest of those who receive a jury summons for this trial may have looked up the Supreme Court website.'[51] I agree. I do not consider that the fact that the sentencing remarks may have been published on the Supreme Court website, in itself, would provide a sufficient reason to find that the accused is unable to have a fair trial unless that trial is by judge alone. It is the media reporting which must be considered.
[51] Applicant's submissions dated 8 August 2017 [27].
In so far as the media reported the initial act of arson, Mr Cooper's public pronouncements about being a victim and then his subsequent charging which recited the State's allegation, may be regarded as publicity that may be expected to attend to a notable alleged crime. Certainly, the nature of that publicity alone does not support a conclusion that the interests of justice warrant a trial by judge alone. Any concerns regarding prejudice arising from the publicity surrounding the act of arson and the charging of Mr Cooper could be ameliorated by directions by a trial judge to a jury.
However, the nature and extent of the reporting in the first period is highly relevant when considering the publicity arising from the subsequent sentencing of the four co‑accused. The media reporting gave extensive coverage to the act of arson on an historic hotel. Mr Cooper was portrayed as a victim who was devastated and working with the police to enlist public assistance to find the culprits. The charging of Mr Cooper resulted in him being portrayed as the mastermind who orchestrated the arson for the purpose of an insurance claim. The reporting recited the proposed State case against Mr Cooper. A great deal of that State case was ventilated at a bail hearing which was reported.
It is the reporting of the sentencing remarks, with the background of the previous media coverage, from which the risk of injustice for Mr Cooper arises. There is one feature of the media publications that is of significant concern and distinguishes it from the usual range of publicity expected with a notable criminal case. That is, the widespread reporting, both in the printed media and on news websites, of the express findings made at the sentencing of the four co‑accused. Those findings were findings by the sentencing judge that Mr Cooper orchestrated and carried out the plan to destroy the Premier Hotel by arson by enlisting the assistance of the four co‑accused.
The reporting of the sentencing of the co‑accused and critically of the sentencing judge's findings concerning Mr Cooper's role results in the risk of prejudice and prejudgment and supports the conclusion that it would be in the interests of justice to proceed by trial by judge alone. In considering that media coverage, I am mindful of the entire reporting commencing with the publications concerning the initial fire and identifying Mr Cooper.
I do not consider that the risk can be ameliorated by direction by the trial judge when that direction would necessarily involve a warning to disregard findings of the sentencing judge which would, understandably, be understood by jurors as findings concerning Mr Cooper. The question that arises is whether a broad direction concerning media reporting would be sufficient to ameliorate the prejudice. Doubt must attend to whether such a direction would be sufficient. Therefore, a more specific direction would be required that necessarily must address the reporting of the sentencing of the co‑accused and the statements concerning the role of Mr Cooper. That type of direction is problematic for an accused given that it draws attention to the very prejudicial issue that it seeks to address. Mr Cooper is entitled to a fair trial and the means to achieve that is by trial by judge alone.
Accordingly, it is in the interests of justice to make an order that there be a trial by judge alone and I exercise my discretion by so ordering.