Mansfield v The State of Western Australia
[2015] WASC 190
•27 MAY 2015
MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 190 | |
| 27/05/2015 | |||
| Case No: | INS:255/2014 | 22 MAY 2015 | |
| Coram: | HALL J | 22/05/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | BEN MICHAEL MANSFIELD THE STATE OF WESTERN AUSTRALIA DANIEL MICHAEL MARCHESANO |
Catchwords: | Criminal law Application for trial by judge alone Pretrial publicity Whether prejudicial Whether directions can overcome the risk of prejudice Whether trial by judge alone in the interests of justice Whether consent of co-accused required |
Legislation: | Criminal Procedure Act 2004 (WA), s 118 |
Case References: | Arthurs v The State of Western Australia [2007] WASC 182 LFG v The State of Western Australia [2015] WASCA 88 The State of Western Australia v Evans [2012] WASC 87 The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 The State of Western Australia v Schmidt [2012] WASC 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
DANIEL MICHAEL MARCHESANO
Second Respondent
Catchwords:
Criminal law - Application for trial by judge alone - Pretrial publicity - Whether prejudicial - Whether directions can overcome the risk of prejudice - Whether trial by judge alone in the interests of justice - Whether consent of co-accused required
Legislation:
Criminal Procedure Act 2004 (WA), s 118
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant : Mr H Sklarz
First Respondent : Mr L E Christian
Second Respondent : Mr P J Urquhart
Solicitors:
Applicant : Sklarz Lawyers
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Philip Urquhart
Case(s) referred to in judgment(s):
Arthurs v The State of Western Australia [2007] WASC 182
LFG v The State of Western Australia [2015] WASCA 88
The State of Western Australia v Evans [2012] WASC 87
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Schmidt [2012] WASC 172
1 HALL J: Ben Michael Mansfield and Daniel Michael Marchesano are jointly charged that on 26 October 2013 they murdered Michael Paul Pruiti. Their trial has been listed for 22 July 2015 to 6 August 2015.
2 By an application dated 29 April 2015 Mansfield has applied for orders that he be tried separately and that he be tried by judge alone. Both applications were heard on 22 May 2015. I dismissed the application for a separate trial and gave oral reasons for that decision. I also dismissed the application for trial by judge alone and said that reasons for that decision would be provided in due course. What follows are my reasons for dismissing the application for trial by judge alone.
The prosecution case
3 The prosecution case is that on Saturday, 26 October 2013 Mansfield and Marchesano agreed to lure the deceased to a bush location and kill him. Mansfield obtained a rifle from his father's house for that purpose. Later that evening Marchesano spoke to the deceased on a pretext and an arrangement was made for them to meet at Marchesano's house. Marchesano and the deceased then drove to the bush location where, unknown to the deceased, Mansfield was waiting.
4 It is alleged that Mansfield then shot and killed the deceased and Marchesano assisted in moving the body into the bush to prevent it from being discovered. After returning to Marchesano's home, he and Mansfield burnt clothing and parts of the firearm. The deceased's car was also cleaned and covered with a tarpaulin to prevent its discovery. They were assisted in this regard by an associate, Christian Gillmore. The following day Marchesano and Mansfield drove the deceased's car to a bush location where it was set on fire.
5 It is alleged that approximately ten days after the deceased's death Gillmore and Mansfield drove to a bush location in Karragullen where they dug a large hole. They then picked up Marchesano and drove to the location where the body of the deceased had been disposed of. The body was wrapped up, placed in the back of a utility vehicle and driven to Karragullen. At that location the body was set on fire and buried. Gillmore was subsequently charged with being an accessory after the fact, a charge to which he has pleaded guilty and he will be a witness for the prosecution at the trial.
The application - publicity
6 The grounds upon which Mansfield seeks a trial by judge alone is that there has been publicity, including in online news publications, in regards to Mansfield and Marchesano's involvement in the crime, Marchesano's assistance in the investigation, Gillmore's plea of guilty to being an accessory after the fact to the alleged murder and in relation to a prior conviction of Mansfield for a racially motivated violent offence. It is submitted that this information is likely to prejudice a jury to such an extent as to make a trial by jury an unfair one.
7 The prejudice is said to arise, in particular, from information regarding Mansfield's prior offence and information pertaining to Gillmore's plea of guilty. As to the former, it is submitted that a jury may be unable to put aside prejudice arising from knowledge that Mansfield has previously displayed violent conduct. As to the latter, it is submitted that knowledge that Gilmour has pleaded guilty to a charge of being an accessory after the fact of the alleged murder is likely to overwhelm the jury and cause them to conclude that Mansfield is guilty without having heard any evidence.
8 The application was not supported by an affidavit, however copies of a number of online media articles were annexed to the written submissions filed on behalf of Mansfield. No objection was made to me receiving the information in this form. Where there is reference in the articles to an unnamed 19-year-old man from Pickering Brook I have taken this to be Marchesano. The articles are as follows:
1. An article from the ABC News website dated 29 October 2009 with the headline 'Man jailed over racially motivated glassing'. This is the article that refers to a previous conviction of Mansfield. The article is very brief. Its total content is as follows:
A South Hedland man has been found guilty of a racially motivated attack which left his victim with head injuries. Last year, a group of Muslim families were celebrating the end of Ramadan at Cemetery Beach Park when they were verbally abused by three men. The local Magistrates Court heard Ben Michael Mansfield, 28, threw a glass at a man's head, leaving him with injuries that required four stitches. Mansfield was convicted of aggravated assault occasioning bodily harm. He was sentenced to 16 months jail.
2. An article from the Perth Hub website dated 18 December 2013 with a headline 'Police forensic officers at the site where Michael Pruiti's body was found'. The article refers to two men having been charged in respect of the death of the deceased and a third man, a 19-year-old from Pickering Brook, remaining in custody and being questioned by the police. The article includes photographs of the deceased and bushland in the Karragullen area.
3. An article from the West Australian website dated 19 December 2013 with the headline 'Case adjourned for murder accused'. This article is very brief. It refers to Mansfield and Gillmore being charged and appearing in court. It also refers to a '19-year-old Pickering Brook man' helping police with their enquiries.
4. An article from the News.com.au website dated 20 December 2013 with the headline 'Third man charged in WA over Pruiti death'. This article refers to a '19-year-old Pickering Brook man' being charged with murder and that Mansfield had also been charged with that offence. It refers to Gillmore being charged with being an accessory after the fact to murder.
5. An article from the WA Today website dated 29 January 2014 with the headline 'Man on bail after guilty plea over Michael Pruiti death'. This article refers to Gillmore having been granted bail after pleading guilty to being an accessory after the fact to murder. It notes that Marchesano and Mansfield have been charged with the murder but that they had not at that stage entered pleas.
6. An article from the ABC News website dated 29 January 2014 with the headline 'Pruiti murder accessory granted bail after guilty plea'. This article also refers to Gillmore pleading guilty to his involvement and being granted bail.
7. An article from the Australian Herald website dated 30 January 2014 with the headline 'Pruiti murder accessory pleads guilty'. This article refers to Gillmore pleading guilty to his involvement in the murder. It also refers to Mansfield and Marchesano and states that they had not yet entered pleas to the charges.
8. An article dated 13 October 2014 from the PerthNow website with the headline 'Two men accused of murdering Michael Pruiti, whose body was found in the Perth hills, to stand trial'. The article is a brief one. It notes that the deceased's body was found in bushland at Karragullen in December 2013 and that Mansfield and Marchesano are accused of his murder. It states that they are fighting the charge and that a trial date has been set.
Submissions of the co-accused and the State
9 The application for trial by judge alone is opposed by Marchesano. It was submitted on his behalf that on a proper construction of s 118(8) of the Criminal Procedure Act 2004 (WA) all co-accused in a joint trial must consent before an order can be made for trial by judge alone. It is said that the absence of consent from Marchesano means that the application should be refused. Alternatively, it is submitted that the lack of consent by Marchesano is a relevant consideration and that, in any event, the publicity referred to by Mansfield falls well short of creating an unacceptable risk of an unfair trial.
10 The State also opposes an order for trial by judge alone. The State submits that the pretrial publicity in this case has been minimal and not such as would create an environment in which the applicant could not receive a fair trial. The pretrial publicity is said to be no more than would occur in most other cases where a person is charged with murder. A suppression order is in effect in relation to Gillmore's sentencing so there has been no publicity about the basis on which he was sentenced.
11 In regards to the publicity relating to Mansfield's previous conviction the State says this is not a case where the applicant is so notorious that members of the community are likely to remain aware of that conviction. Furthermore, the jury will be instructed not to make any enquiries of their own and it should be assumed that they would follow such a direction.
12 The State also submits that the trial is likely to involve factual issues that require the application of objective community standards, in particular because during his interview Marchesano states that he was acting subject to threats from Mansfield and this may form the basis of a duress defence. Such a defence would require consideration of whether any response to threats was reasonable in the circumstances that Marchesano believed to exist and whether there were reasonable grounds for his beliefs as to the circumstances and the necessity of his actions.
Relevant law
13 Section 188 of the Criminal Procedure Act provides as follows:
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.
14 Section 118 has recently been considered by the Court of Appeal in LFG v The State of Western Australia [2015] WASCA 88. In that case Buss JA said that whilst s 118(5) and s 118(6) set out some specific circumstances in which a court may make or may refuse to make an order neither of those subsections limits the generality of the expression 'in the interest of justice' in s 118(4). Neither an accused person nor a prosecutor has a right to elect a trial by judge alone, an application must be made and can only be granted if the court considers it is 'in the interests of justice' to do so. On an application by the prosecution the consent of an accused person is also required.
15 In LFG Buss JA went on to say:
Although s 118(4) confers a power on the court to make an order that an accused, who is committed on a charge to a superior court or indicted in a superior court on a charge, be tried by a judge alone, the court may only make that order 'if', relevantly, it considers it is 'in the interests of justice' to do so. In other words, the court may not make an order that the trial of the charge be by a judge alone unless the court considers, relevantly, that it is in the interests of justice to do so. Accordingly, the court's power to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so.
The phrase 'in the interests of justice' has a broad connotation. It is not defined in s 118 or elsewhere in the Criminal Procedure Act. The phrase takes its meaning in s 118 from the context in which it is used.
The concept of 'in the interests of justice', in s 118, includes not only the interests of the accused but also the public interest. 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.
It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. This is a fundamental (but not, of course, the only) issue with which s 118 is concerned. It will be 'in the interests of justice', within s 118(4), to order a trial by a judge alone if that is necessary to ensure the accused receives a fair trial according to law. That will be necessary if there is 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 by or before a jury. See Coates v The State of Western Australia [2009] WASCA 142 [104] (Buss JA, Martin CJ agreeing).
It is apparent, at least from s 118(5), that the legitimate interests of jurors is an aspect of the public interest within the concept of 'in the interests of justice' in s 118.
It is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is 'in the interests of justice' to order that there be a trial by a judge alone.
The phrase 'in the interests of justice', in s 118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under s 118(1). They will vary from case to case and must be determined on a case-by-case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances.
In my opinion, on a proper construction of s 118, in the context of the Criminal Procedure Act as a whole, the stipulation in s 118(4) that the court may make an order that the trial of the charge be by a judge alone if (and only if) the court considers it is in the interests of justice to do so, requires that:
(a) a process of evaluation be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone; and
(b) the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury [318] - [325].
16 Later in his reasons Buss JA referred to a number of types of cases where applications for trial by judge alone have been granted:
It may be 'in the interests of justice', within s 118(4), to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:
(a) pre-trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside (The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);
(b) the nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance (Bell v The State of Western Australia[No 2] [2014] WASC 260); and
(c) the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact (The State of Western Australia v Brown[No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147).
See also, for example, the facts in Arthurs v The State of Western Australia [2007] WASC 182 and Schmidt v The State of Western Australia [No 3] [2014] WASC 156.
Plainly, the examples to which I have referred are not exhaustive [337] - [338].
17 In those cases where pretrial publicity has been the basis for an order for trial by judge alone careful consideration has been given to the nature, timing and amount of publicity and how it relates to the matters likely to be an issue in the trial: Arthurs v The State of Western Australia [2007] WASC 182, The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383, The State of Western Australia v Evans [2012] WASC 87 and The State of Western Australia v Schmidt [2012] WASC 172.
18 The mere fact of publicity will not itself justify a trial by judge alone. Some cases, particularly perhaps those involving charges of murder, will inevitably attract some pretrial publicity. Juries are invariably warned against having any regard to such publicity and such directions are generally assumed to be effective. Any argument based on unfairness arising from publicity has to recognise that jurors are capable of understanding and applying the directions that they are given. However, there will be cases where the prejudice is likely to be so ingrained as to be resistant to directions. Whether this is such a case depends upon the quantity, content and timing of the publicity.
Is it necessary for the co-accused to consent?
19 Unlike the former s 651A(6) of the Criminal Code (WA), s 118 does not provide that an election by one accused for trial by judge alone is ineffective unless each other accused who is to be jointly tried also makes the same election. As has been noted above, s 118 does not provide accused persons with a right to elect trial by judge alone at all. It operates on the basis that an application must be made to the court and the court must then determine whether a trial by judge alone is in the interests of justice.
20 Section 118(8) does not imply that a co-accused has a veto, rather it merely ensures that where a court on an application by an accused person reaches the conclusion that it is in the interests of justice for there to be a trial by judge alone then that order must apply to all of the accused who are to be jointly charged. This is obviously to prevent the undesirable and confusing situation of a joint trial where one accused would have their guilt determined by the jury and another accused by the judge alone. Section 118(8) ensures that at any joint trial all of the accused will either be tried by jury or by judge alone.
21 The issue that then arises is what is to occur where one of two co-accused applies for trial by judge alone and the other co-accused opposes that application. The power of the court to make an order for trial by judge alone against any accused person is predicated on an application being made by the prosecutor or the accused: s 118(1). The use of the singular 'the accused' in this context may be significant. No such application is made in respect of the co-accused who opposes. If this means that no order for trial by judge alone can be made in respect of the co-accused who opposes does he, notwithstanding what has been stated above, have an effective veto?
22 In my view, the appropriate interpretation of s 118(1) is that wherever one accused makes an application the court's power to make an order for a trial by judge alone in respect of all accused is enlivened. There are a number of reasons for that conclusion. First, if it was intended that other co-accused would have a veto then it would be expected that s 118(8) would have been framed accordingly. The legislature did not incorporate a requirement for consent despite one being included in the former legislation. It must be presumed that this was a deliberate decision.
23 Secondly, if a court on the application of one co-accused came to the conclusion that the interests of justice did require that that accused had a trial by judge alone, then it would be extraordinary if the opposition of a co-accused could prevent such a trial occurring. The interests of justice may require a trial by judge alone because the risk of an unfair trial could not be obviated by directions to a jury. It is improbable that a court would be required to compel a co-accused to participate in a jury trial that had a high risk of being unfair. Such an outcome would appear to be contrary to the evident purpose of s 118. Of course I recognise that this may mean that another accused may be forced to have a trial by judge alone when they do not want it, but that is a consequence that cannot be avoided (unless that other accused successfully applies for a separate trial).
24 Thirdly, s 118 does provide a circumstance where the consent of an accused to a trial by judge alone is required; that is, where the application has been made by the prosecution: s 118(4). That provision is not applicable where the application is made by a co-accused. That tends to support the conclusion that consent by one co-accused to an application by another co-accused is not a requirement.
25 For the above reasons, in my view where an application for trial by judge alone is made by one of two co-accused the attitude of the other co-accused is not a determinative consideration. However, in the circumstances of this case it is unnecessary to consider the position of Marchesano in any event. That is because on the basis of the information provided by Mansfield I am not satisfied that the interests of justice require that he be tried by judge alone.
The interests of justice
26 The publicity that refers to Mansfield and Marchesano being charged with murder is not prejudicial on its face. It is entirely typical of factual reports that precede a trial. None of the reports suggest or imply that Mansfield is guilty of the offence that he is charged with. None of the reports contain any opinion, rumour or commentary. I do not accept that there is any prejudice arising from those articles that could not be adequately prevented by appropriate directions to the jury.
27 The articles that refer to Gillmore being charged and pleading guilty to being an accessory after the fact do not refer to the factual basis upon which his plea was entered. Clearly there is an implication in him pleading guilty that Mr Pruiti was murdered, but it does not follow from that that Mansfield is necessarily guilty of that murder. The sentencing proceedings in respect of Gillmore have been supressed and, accordingly, no members of the public summonsed as jurors are likely to be aware of the factual basis upon which Gillmore has been dealt with. In any event, Gillmore will be called as a prosecution witness. It is extremely unlikely that the fact he has pleaded guilty and been sentenced will not be brought out at the trial.
28 I accept that the article relating to Mansfield's previous conviction in 2009 has the potential to be prejudicial. However, that article appeared over five years ago and it is unlikely that any members of the jury will recall it, even assuming that they read it. I note that there is no evidence regarding what prominence the article had at the time or where it appeared on the relevant website. At the hearing of this application counsel for Mansfield said that he discovered the article by doing a search of his client's name. He suggested that jurors who did the same thing could easily discover it. However, there is no reason to suppose that potential jurors (who would not know in advance what trial they would be involved in) would have any occasion to do such a search before being empanelled. After empanelment jurors would be specifically warned against undertaking searches of that type and it can be assumed they would follow such a direction.
29 The interests of justice must take into account that juries properly directed are capable of ignoring prejudicial publicity and returning a true verdict on the evidence: Schmidt. In the present case I am not convinced that any prejudice is likely to be 'widespread or entrenched' (Rayney [88]), or that the views of potential jurors are likely to be 'preconceived as to guilt' (Rayney [92]). In my view this is a case where appropriate directions to a jury would be effective in obviating the risk of potential prejudice from publicity.
Conclusion
30 For the above reasons I was not affirmatively satisfied that it is in the interests of justice for Mansfield to be tried by judge alone instead of by a judge and jury. The grounds advanced on the application do not, when evaluated, support such a conclusion. Accordingly, the application was refused.
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