Fawcett v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FAWCETT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 202
CORAM:   MCGRATH J
HEARD:   23 JUNE 2021
DELIVERED          :   23 JUNE 2021
FILE NO/S:   INS 67 of 2020
BETWEEN:   LUKE DAVID FAWCETT
Accused
AND
THE STATE OF WESTERN AUSTRALIA
Prosecution

Catchwords:

Criminal law and procedure - Accused's application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Whether interests of justice require a trial by judge alone - Prejudicial evidentiary material - Whether directions likely to be effective

Legislation:

Criminal Code 1913 (WA), s 279
Criminal Procedure Act 2004 (WA), s 118

Result:

Application for trial by judge alone dismissed

Category: B

Representation:

Counsel:

Accused	:	Mr S D Freitag SC
Prosecution	:	Mr J C Whalley SC

Solicitors:

Accused	:	D G Price & Co
Prosecution	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(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 & Ors [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 accused is charged with two counts of murder contrary to s 279 of the Criminal Code (WA).
The accused has pleaded not guilty to the two counts and will appear for trial between 6 September 2021 and 24 September 2021.
The accused applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), that his trial be by a judge alone.[1]
[1] Application for judge alone trial dated 3 June 2021.
The gravamen of the application is that it is in the interests of justice to grant the order for a judge alone trial given the confronting evidence that the State proposes to rely upon at trial. The accused particularises the confronting evidence as comprising a video located on the accused's mobile phone dated 29 March 2020, a handwritten list titled 'Equipment', which lists a number of items, and the photographs and the electronic recording of the crime scene and the forensic pathologist evidence concerning the nature and extent of the injuries inflicted on the deceased persons.[2] The State opposes the application.
[2] Affidavit of Mr Freitag SC sworn 3 June 2021 [14].
For the following reasons, I am not satisfied that it is in the interests of justice to order a trial by judge alone.…

CaseChat Overview and Summary

In the matter of Fawcett v The State of Western Australia, the accused applied for a trial by a judge alone under section 118 of the Criminal Procedure Act 2004 (WA). The case before the court involved the accused's request to be tried without a jury due to concerns about the potential prejudice from certain evidence. The accused argued that the presence of a jury could lead to an unfair trial, given the sensitive nature of the evidence that might unduly influence the jury's decision.

The primary legal issues before the court were whether the interests of justice required a trial by a judge alone and whether the trial judge's directions could sufficiently mitigate any prejudicial effects of the evidence. The court had to consider the potential impact of the prejudicial material on the fairness of the trial and the effectiveness of the judge's directions in addressing those concerns. The court also examined whether the accused's right to a fair trial could be adequately safeguarded by a trial before a judge alone.

In determining the application, the court considered the nature and potential prejudicial impact of the evidence in question. The court assessed whether the evidence was of such a kind that it could cause a miscarriage of justice if the accused were tried by a jury. After carefully weighing the arguments presented by both parties, the court concluded that the directions given by the judge would be effective in managing the prejudicial aspects of the evidence. Consequently, the court found that the interests of justice did not require a trial by judge alone and dismissed the application. The court was satisfied that the judge's directions would ensure a fair trial, and the accused's right to a fair trial was not compromised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established