MJL v Tasmania
[2022] TASSC 70
•7 September 2022
[2022] TASSC 70
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | MJL v Tasmania [2022] TASSC 70 |
| PARTIES: | MJL |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 834/2020 |
| DELIVERED ON: | 7 September 2022 |
| PUBLISHED ON: | 2 May 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 September 2022 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Criminal Law - Procedure - Trial had before judge without jury – Election – Trial on indictment – Application for trial without jury – Meaning of "interests of justice" – Persistent sexual abuse of a child – Tendency evidence – Defence of immature age – Process of evaluation required to determine where the interests of justice lie – Application refused.
Criminal Code Act 1924, ss 18, 361AA and 383 and Criminal Procedure Act 2004 (WA), s 118.
Fleming v The Queen (1998) 197 CLR 250; R v Stanley [2013] NSWCCA 124; Gilbert v The Queen [2000]
HCA 15, 201 CLR 414; Arthurs v Western Australia [2007] WASC 182; R v Belghar [2012] NSWCCA 86,
217 A Crim R 1; R v Gittany [2013] NSWSC 1503; R v Abrahams [2013] NSWSC 729; R v Simmons (No 4)
[2015] NSWSC 259, 249 A Crim R 120; R v McNeil [2015] NSWSC 357, 250 A Crim R 12; Doney v The
Queen [1990] HCA 51, 171 CLR 207 and State of Western Australia v Edwards [2018] WASC 419,
considered.
Aust Dig Criminal Law [3165]
REPRESENTATION:
Counsel:
Appellant: K Baumeler Respondent: L Ogden
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 70 |
| Number of paragraphs: | 101 |
Serial No 70/2022 File No 834/2020
MJL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | ESTCOURT J 7 September 2022 |
| The application |
1 On 6 July 2022 the accused MJL, who is charged on indictment 206/2021 with one count of persistent sexual abuse of a child or young person contrary to s 125A(2) of the Criminal Code, has filed an application pursuant to s 361AA of the Code seeking an order that the trial of the indictment be conducted by a judge sitting alone.
2 The State opposes the application.
3 Section 361AA of the Code provides, relevantly, as follows:
"361AA Trial by judge alone
(1)
Despite section 361, a party to proceedings in respect of a crime may apply to the court for an order to have the trial in respect of the crime be determined by a single judge in place of a trial by jury.
(2) An application for an order under subsection (1) in respect of a crime –
(a)
may only be made within the 3 month period immediately after the accused person, in respect of the crime, has been committed to trial for the crime.
(3) Despite subsection (2)(a), the court may consider an application made outside of the period specified in that paragraph if the court is satisfied that the applicant has provided a reasonable explanation for the delay in the making of the application. (4) In determining whether to make an order under subsection (1), the court may
inform itself in any manner it thinks appropriate.(5) The court must not make an order under subsection (1) in respect of a crime
unless the court is satisfied that –
(a) the accused person, in respect of the crime, has given informed consent in accordance with subsection (6) to the proposed order; and (b) it is in the interests of justice for the order to be made. (6) For the purposes of subsection (5)(a), the court may only be satisfied that an accused person has given informed consent under this section to a proposed order if the court is satisfied of each of the following in respect of the accused person: (a)the accused person understands the nature of the proposed order and the
effect of an order under this section, if made;(b) the accused person – (i) has been provided with legal advice on the effect of the proposed order, if made; or
(ii) has been offered, or advised to obtain, such legal advice and has refused the offered legal advice or to obtain the legal advice;
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(c) if the accused person has been provided with legal advice in
accordance with paragraph (b)(i), the legal practitioner who provided the
legal advice to the accused person has certified in writing –
(i) that the legal advice was provided; and
(ii) whether the legal practitioner believes that the accused person has freely given the informed consent."
4 Section 361AA commenced operation on 8 June 2022.
5 The accused was committed to this Court for trial on 8 October 2020 and first appeared thereafter on 1 February 2021. The application was therefore made well outside the three month time period.
6 This is the first of two bases upon which the State opposes the making of the order sought.
7 Section 361AA(7) provides, relevantly, as follows:
"(7) In determining whether it is in the interests of justice for an order to be made under this section as required under subsection (5)(b), the court –
(a) is to take into account whether the crime to which the order relates involves an element or a question of fact that –
(i) is more appropriate to be determined by a jury to ensure that
community standards and opinions are reflected in its determination;
and
(ii) includes, but is not limited to, an element relating to, or a
question of, reasonableness, dangerousness, indecency, negligence or
obscenity…"
8 As will be seen, this section is productive of the central thrust of the State's second basis of opposition to the application, namely that it is not in the interests of justice that an order for a judge alone trial be made.
9 Although s 361AA does not contain a defined list of factors relevant to the question of whether an order for a judge alone trial would be in the interests of justice, the State points in its submissions to positive reasons why the order sought would not be in the interests of justice and also points to an absence of features which might make it so.
10 The parties have agreed that I may have regard to the following materials in determining the
application:
(a)
The two volumes of State papers filed with the Court (the first volume on 4 August 2021 and the second on 10 June 2022);
(b) The notice of tendency, filed with the Court on 2 June 2022; (c)
The particulars of the unlawful sexual acts relied upon as proof of the charge, filed with the Court on 10 June 2022;
(d) A proof of evidence of LS (the complainant), filed with the Court on 10 June 2022; and (e)
Supplemental proofs of evidence of LP, filed with the Court on 14 June 2022 and NY filed with the Court on 10 June 2022.
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The State's case on the indictment
11 Counsel for the State, Mr Ogden, has very helpfully summarised the case against the accused in his written submissions. It is, broadly, as follows.
12 In respect of the single charge on the indictment, the State asserts that the accused engaged in unlawful sexual activity with the complainant between 28 December 2002 and 31 December 2005.
13 The complainant is the accused's sister. She was aged between 10 and 13 during the period of the indictment. The accused is eight years and three months the complainant's senior. He was between 14 and 17 during the period of the offending alleged in the indictment.
14 During the period of the offending the accused and the complainant lived together in the family home. The alleged offending either occurred there or, on one occasion, while the accused and complainant were staying at their grandmother's house in Glenorchy or, on another occasion, during a family trip to Launceston where the accused and the complainant stayed at the Olde Tudor Motor Inn.
15 Details of each of the unlawful sexual acts relied upon as proof of the charge on the indictment are contained in the particulars of the unlawful sexual acts relied upon by the State. There are four occasions identified, two involve alleged indecent assault alone, one involves alleged rape alone and one involves allegations of both rape and indecent assault.
16 The State alleges that the offending occurred when the accused and the complainant were both physically removed from other adults but where there was nonetheless a risk of detection by other people, (for example, the incident at the Olde Tudor Motor Inn is alleged to have taken place in close proximity to LP, the youngest of the accused's siblings.)
17 The State's case against the accused in relation to the charge relies heavily on direct evidence provided by the complainant herself.
18 The tendency notice details the other evidence that is said to be capable of supporting the allegations and which is sought to be led on the trial from, DS (older sister), LP (younger brother), LB (mother) and LM (father). With the exception of LP this evidence is evidence of the later complaint.
19 LP's evidence also describes an incident where he, the accused and the complainant were playing downstairs in the family home as children. The complainant and the accused went into the accused's bedroom downstairs and emerged with the complainant wearing her jumper the wrong way around. That is said to be corroborative of an incident described by the complainant in her proof of evidence.
20 The accused denies the allegations said to comprise the crime charged in the indictment.
21 He admitted in two interviews conducted in 2018 (before the complainant went to the police herself) and in 2019 (after the complainant spoke to the police), that there was some form of sexual contact between him and the complainant when they were both "really young", but that that conduct was essentially consensual or mutual when it did occur and it did not continue for as long as the complainant says it did.
22 Specifically, in the 2019 interview the accused said:
• He was probably 10 years of age when those things happened. •
There was no sexual penetration of any kind. He did, however, agree that he had touched her between the legs (contradicting what he said in 2018 in the sense that he had not mentioned that then).
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• They stopped when he knew what the sexual acts were. • He said they would have stopped long before he was 16, suggesting that it had "well and truly stopped" by the time he was 12 or 13 and in high school. • When asked how it would happen he said "she'd come down to my room to watch a movie with me and then yeah… I don't know… I don't really know how it all started". 23 That last admission is said to be notable because the complainant's account of many of the early incidents is consistent with this.
24 In the 2018 interview (undertaken in relation to child exploitation material offending by the accused), he said that when he was 8 or 9 "some weird shit happened like touching and kissing and shit. And then you sort of grow up and realise that shit was fucked".
25 The claims the accused makes regarding his age at the time of the alleged offending are relevant because the State asserts that the accused began participating in sexual activity with his sister when he was approximately 10 years old (and when the complainant was approximately six years old) and that it continued from that point continuously throughout the period of the indictment.
26 The State seeks to adduce tendency evidence of:
• Uncharged sexual acts by the accused against the complainant before he turned 14 years old; and •
Communications between the accused and young female children between January 2017 and May 2018 that were located when a Samsung tablet and Samsung mobile phone belonging to him were seized by the police in April and May 2018 respectively.
The delay
27 The State first submits that any application for a judge alone trial should have been made on or very soon after 8 June 2022 when s 361AA commenced operation and that any delay after that point has not been reasonably explained by the accused.
28 It is conceded by the State that much of the delay in the making of the application was attributable to the fact that s 361AA did not commence until it was proclaimed on 8 June 2022. However, by that stage the State says that the matter had already been listed for a jury trial.
29 The matter was first listed for trial in the June 2022 sittings of the Court. A tendency notice was filed by the Crown on 2 June 2022. A call-over of matters listed for trial in that grid was conducted before the Chief Justice on 6 June 2022. On that day there was a general discussion about whether defence counsel was in funds to conduct the trial. No mention of a judge alone trial was made on that occasion.
30 On 16 June 2022 a directions hearing was held before Porter AJ to determine whether the matter could be reached in the second week of the sittings. On that occasion there was no mention of an application for a judge alone trial.
31 On 20 June 2022 the matter was adjourned to 27 June 2022. Again, there was no mention of an application for a judge alone trial.
32 On 27 June 2022 the matter was adjourned to 29 June 2022. Again, there was no mention of an application for a judge alone trial.
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33 On 29 June 2022 the matter was adjourned to 4 July 2022. Again, there was no mention of an application for a judge alone trial.
34 On 4 July 2022 the matter was adjourned to 6 July 2022 for a legal argument to be had in respect of the tendency notice filed by the Crown.
35 It is conceded by the State that it was informally indicated by counsel for the accused to counsel for the State on and from 20 June 2022 that the accused was entertaining the idea of making an application for a judge alone trial. However, that was not formalised until the application now before the Court was filed on 6 July 2022.
36 Counsel for the accused, Ms Baumeler, explains in her written submissions:
"5 Due to the requirements as to informed consent, provided for in s 361AA(5)(a) and s 361AA(6) of the aforesaid legislation, MJL was provided with legal advice and given time to consider his position. It should also be noted that MJL is privately funded and did have some difficulty in accessing the money needed to support legal counsel. This meant that little work could be done while this was resolved. Such difficulties were first mentioned at the directions hearing on June 6. Until funds were secured it was only possible to raise the prospect of a judge-alone trial with Crown Counsel on an informal basis. It was impossible to say what MJL's decision would be once advice had been provided to him. He might well have instructed that he wished to proceed with a jury trial which would have made all considerations relating to a judge-alone trial academic.
6 Final instructions were taken on the 5th of July 2022, and the application for a judge-alone trial was filed with the court on the 6th of July 2022.The application was in the form of a Solicitors letter, and Certificate of Legal Advice, which was signed by Mrs Philippa Willshire and the Accused MJL attesting to the legal advice given."
37 As there is no demur by the State as to the substance of the explanation for the delay offered, I am satisfied that the short period of delay from 8 June 2022 until 6 July 2022 has been satisfactorily explained and should not prevent the accused from obtaining the order he seeks if it is in the interests of justice to make the order.
Interests of justice
38 The State submits that it was specifically contemplated by the legislature when introducing s 361AA that juries play an important role in Tasmania's criminal justice system, particularly in cases which involve an element or question of fact more appropriately determined by a jury with reference to community standards.
39 There can be no doubt about that. Section 361AA(7) so provides, including in cases involving an element relating to, or a question involving, indecency.
40 The State says that, as can be seen from the particulars of the unlawful sexual acts relied upon, at least three of the alleged unlawful sexual acts constitute, if proved, the crime of indecent assault, contrary to s 127 of the Code, and the finder of fact will be required to make an assessment as to whether the acts charged are indecent in all of the circumstances of their commission, as found on the evidence.
41 The State says that further, if the finder of fact was not satisfied of the commission of at least three unlawful sexual acts during the period of the indictment then verdicts of guilty of the crime of indecent assault would be open as alternative verdicts pursuant to s 337B of the Code. Again, in those circumstances the State submits that an assessment of the issue of indecency would need to be made.
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42 Counsel for the defendant contends in her written submissions:
"The primary issues at trial will have two elements – did the acts occur and/or at what age did they occur. There is no question of a community standard in play – if the acts occurred, there is no discretionary aspect that would lead to anything less than a conviction. Unlike the submissions of the Office, it is suggested here that sex with a sibling does not have a grey area that could need the considerations of lay members of the community. There is no community lens that needs analysis or contribution. With respect to the submissions of the Office, it is difficult to understand why they (paras 34-37 of their submissions) could reasonably believe this to be the case. This can be contrasted with, for example, a self-defence argument, or where there is a question of whether words said were obscene – in these instances the views of 12 independent members of a community may lead to an outcome more akin to the interests of justice as represented by a community of one's peers. In the instant matter there is no question of credibility that could involve a jury application."
43 As to that submission, the State says that while it may be the case that the indecency of the acts alleged is "not a matter in particular dispute" in the trial, it remains a necessary element of the unlawful sexual acts alleged and is still a matter for the jury, as the ultimate decision-maker in the trial, to consider as the arbiters of community standards.
44 In carrying out what, in my view, is the evaluative judgment called for on this application in order to determine where the interests of justice lie, I prefer the submission of the State on this question arising under s 361AA(7).
45 It is overly simplistic with regard to the fact finding necessary in the present case to say that "sex with a sibling does not have a grey area that could need the considerations of lay members of the community". Indecency is unquestionably an element of the crime of indecent assault as defined by s 127 of the Code and s 361AA(7)(a)(i) and (ii) are engaged.
46 In my consideration of this factor it is important to observe that whilst, on the facts asserted by the State, the indecency of any assault might not present a great deal of difficulty to the fact finder, nonetheless (and leaving to one side the defence of immature age, for the moment), the matters raised by the accused in his police interviews could conceivably cause the fact finder to examine the question of indecency quite closely.
47 In his 2018 interview the accused told police "that there was some form of sexual contact between him and he complainant when they were both 'really young'". And in his 2019 interview he told police that he was probably 10 years of age when those things happened and that there was no sexual penetration of any kind but that he had "touched her between the legs". He told police that "[t]hey stopped when he knew what the sexual acts were". He said they would have stopped long before he was 16, suggesting that it had "well and truly stopped" by the time he was 12 or 13 and in high school.
48 The State does not disagree with the accused's statement that he was "probably 10 years of age" when relevant conduct occurred. The State simply does not accept the accused's assertion as to when the conduct ceased.
49 In these circumstances I cannot rule out that the finder of fact might legitimately conclude that the conduct occurred when the accused and the complainant were both "really young" and didn't understand the nature of their acts. In those circumstance a jury would be better placed, in my view, than a judge alone, to discern community standards related to indecency.
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Immature age
50 Counsel for the accused submits that as the State intends to lead evidence of uncharged acts said to have occurred when the accused was between the ages of 10 and 14 years of age, he will seek to rely upon his immature age at that time and argue that evidence of the acts alleged to have occurred are inadmissible against him.
51 Section 18 of the Code provides as follows:
"18 Immature age
(1) No act or omission done or made by a person under 10 years of age is
an offence.(2) No act or omission done or made by a person under 14 years of age is an offence unless it be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make."
52 Evidence of uncharged acts led as tendency or relationship evidence do not have to amount to "an offence" before the evidence is potentially admissible. Questions of unfairness might be raised as to the use in evidence of uncharged acts that cannot by operation of law amount to offences, but the availability of any objection based on fairness is to my mind a neutral factor in my evaluation, (leaving aside the question of the length of the trial). The objection can be made and ruled upon whether the trial is conducted with a jury or before a judge alone.
53 The possibility that if the accused's account given in his two interviews were to be accepted by the finder of fact and all acts found to have occurred at a time when he could claim the benefit of immature age as a defence, is immaterial in my view to the question of whether it is in the interests of justice to grant the accused's application. If the defence provided by s 18 of the Code is engaged by the evidence as it emerges at trial, it matters not whether a jury is directed as to the effect of the defence by the trial judge of whether the judge alone applies the law to the facts as found.
54 And there is little substance, in my view, in the submission made on behalf of the accused on this issue, that the interests of justice are better served by a judge alone trial because, "reasons will need to be given on the admissibility of the evidence as well as any use that is made of the evidence in terms of the ultimate verdict." Whatever the forum, there will be a ruling on any objection as to the admissibility of evidence of the uncharged acts and if ruled admissible, the finder of fact will be instructed, or will self-instruct, as to the permissible use that maybe made of the evidence.
55 Section 383(6) of the Code provides as follows:
"(6) If an indictment is tried by a single judge in accordance with an order under
section 361AA –
(a)
the judge may return any verdict or make any finding under this section that a jury may have made if the indictment had been tried by a jury; and
(b)
before returning a verdict or making a finding under this section, the judge is to –
(i)
take into account any warning that would have been given to a jury before returning the verdict or making the finding; and
(ii)
as far as is practicable, use the same principles of law and procedure as would be used by a jury in returning the verdict or making the finding; and
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(c) if the judge returns a verdict or makes a finding under this section, the judge is to record in the judgement for the trial the principles of law applied, and the findings of fact relied on, by the judge when returning the verdict or making the finding."
56 When dealing with a similar provision in the Criminal Procedure Act 1986 (NSW) in Fleming v The Queen (1998) 197 CLR 250 the High Court said at 264 [34]:
"The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account."
57 However, if the requirement for the provision of written reasons by a trial judge as to the use actually made of tendency or relationship evidence was to be determinative of the question of the interests of justice, then there would arise a de facto entitlement to trial by judge alone in every case where such evidence was proposed to be led. I observe no such presumption arising from the text or purpose of s 361AA.
58 The provision of reasons by a judge sitting alone is a procedural consequence of the provision of that alternative mode of trial. It cannot be the sole determinant in every case of the question of the interests of justice. In my view the consideration is only likely to be a factor of significance in cases where there is a far greater risk of unfairness arising from the misuse by the jury of prejudicial evidence, notwithstanding the giving of the required and customary directions, than there is in the present case.
Tendency evidence
59 Counsel for the accused submits that, as with the proposed evidence raising the question of immature age, the evidence of communications between the accused and young female children between January 2017 and May 2018 will be challenged as inadmissible.
60 It is submitted that possession of what might amount to child exploitation material some 15 years after the alleged offending the subject of the indictment is not evidence of a tendency. It is submitted that if the challenge to the evidence is unsuccessful there will be a real risk that a jury may use impermissible reasoning in considering the charge in the indictment. Counsel for the accused argues in her written submissions:
"A judge-alone trial will cure this risk. Reasons will need to be given as to the admissibility of any of the evidence challenged and reasons given as to the use that was made of the evidence. This will not occur in a jury trial."
61 The State concedes that a trial by judge alone might be a preferred course where the evidence to be adduced was so abhorrent that an emotional response by a jury to it was inevitable, but counsel for the State argues that this is not such a case. He submits that the present case is, "unfortunately", no different to any other involving an allegation of a sexual offence committed against a child and that juries are routinely required to deal with difficult subject matter in such cases.
62 Further, counsel submits that a subjective apprehension or concern on the part of the accused that jurors will be prejudiced is insufficient to justify an order for trial by judge alone.
63 In R v Stanley [2013] NSWCCA 124, Barr AJ with whom McFarlan JA and Campbell J
agreed, said at [42]:
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"In deciding whether or not to make an order for trial by judge alone the Court must decide where the interests of justice lie. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. The Court should not assume that either form of trial is more desirable than the other: Arthurs v State of Western Australia [2007] WASC 182 at [75]; R v Belghar at [49]. The interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made: R v Belghar at [96]. An applicant bears no burden of proof. However, the applicant does bear an evidentiary burden. The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96]- [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40]-[46].
64 Counsel for the State submits that there is no reason to suggest that such evidence could not appropriately be dealt with by directions to the jury. He contends that the provisions of the Evidence Act 2001 which govern the admission of tendency evidence were designed with juries in mind and that they balance the interests of the accused with the need for the jury to have before them relevant and probative evidence of the accused's guilt. If the evidence sought to be admitted as tendency evidence does not meet the tests outlined in ss 97 and 101 of the Evidence Act, which include a consideration of the risk of unfair prejudice and whether any prejudicial effect is outweighed by the probative value of the evidence, then it will not be admitted.
65 Moreover counsel submits that an accused must be able to point to some particular part of the evidence which would incite or invite inappropriate or impermissible reasoning, the risk of which cannot be cured by judicial direction, which it must be presumed that a jury will follow.
66 For that latter proposition counsel for the State cites Gilbert v The Queen [2000] HCA 15; 201 CLR 414. In that case McHugh J, dissenting as to result said at [31]:
"31 The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong'." (Emphasis added.)
67 To a similar effect, Hayne J in that case, also dissenting as to the result said at 52:
"52
The trial to which the appellant was entitled was a trial according to law. There were two questions for the Court of Appeal. First, was there a trial according to law (and all agreed that there was not). Second, and no less important, was the question whether a substantial miscarriage of justice had actually occurred. That second question is not concluded by pointing to the fact that there was a misdirection and that there was, therefore, not a trial
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according to law. The existence of the proviso denies that the fact of misdirection will, in every case, require an order for retrial. Nor can this second question be answered by making an assumption that the jury might have chosen to disregard what they were told by the judge. Such an assumption is unwarranted. It is an assumption which suggests that emotion (whether induced by the eloquence of counsel or otherwise) might have supplanted the collective common sense and careful reasoning that jurors bring to bear upon a difficult task. It is an assumption which, if effect is given to it, turns the judge's charge to a jury into a ritual incantation which appellate courts must examine for formal correctness but which appellate courts are free (if not bound) to assume a jury may have disregarded."
68 Whilst found in the judgments of the two dissenting judges in Gilbert, those statements are of the highest authority. As statements of principle they were not doubted, much less contradicted, expressly or impliedly by the plurality or by Callinan J in allowing the appeal. In my view they have application to the present case.
69 I add, that while the provision of the reasons required to be given by a judge sitting alone would, if faithfully given, lessen the possibility of the misuse of evidence, it must be remembered, as was said by Martin CJ in Arthurs v Western Australia [2007] WASC 182 at [89]:
"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."
70 Finally, counsel for the State submits that to the extent that the accused's concern arises from the uncharged nature of the acts that are the subject of the tendency notice, such evidence is often placed before a jury and there are many bases upon which that occurs. But, counsel contends, while every case of alleged sexual abuse of a young female is likely to provoke a strong emotional response in a jury, provided clear direction is given to a jury about how that evidence may permissibly be used, then any prejudicial effect of the evidence can be ameliorated to a significant degree by appropriate directions from the trial judge
71 Again, I accept the submissions made by counsel for the State. There is no reason to suggest that, if admitted, the proposed tendency evidence could not appropriately be dealt with by directions to the jury, which directions the jury must be presumed to follow. Nothing more than an apprehension of impermissible reasoning on the part of the jury has been advanced. And, I have already dealt with the question of the potential advantage to the accused of the requirement of s 361AA(7) for a judge sitting alone to give reasons, in my reasons relating to the accused's submissions concerning immature age.
Length of trial
72 Counsel for the accused submits that should the trial be conducted with a jury there would be the need for a voir dire to be conducted on a number of occasions, thus lengthening the trial "significantly". She submits that if the trial were to be conducted as a judge-alone trial the impugned evidence could be taken de bene esse during the trial and a ruling given at the time of the verdict. This, counsel says, would significantly shorten the length of the trial "as the original time estimate for the legal argument was approximately two days even if conducted on the papers".
73 Counsel for the accused submits that the cost involved in a trial, particularly where the defence case is privately funded, is a relevant factor in support of a judge alone trial.
74 Counsel for the State concedes that the length of the trial may be a relevant consideration but says that the State's best estimate is that this trial will take less than one week. Counsel concedes that
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there might be some additional convenience or efficiency associated with not needing to co-ordinate a jury as part of the proceedings and/or the ability to deal with the legal issues in a more efficient manner (for example, potentially taking the impugned tendency evidence de bene esse), but the State submits those considerations without more would not justify a trial by judge alone if it was not otherwise in the interests of justice.
75 This proposition counsel says derives support from McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1, who said at [111]:
"I would not accept that the interest of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but … they are not relevant to the interests of justice in the particular case."
76 I agree, with respect. Obviously the efficiency in not needing to assemble a jury panel and empanel a jury would exist in every case of a judge alone trial. However it is clear that judge alone trials are intended to complement the jury trial system in cases which test the adequacy and fairness of the jury system. Section 361AA does not legislate the displacement of the jury system. On the contrary judge alone trials are, in my view, targeted at those specific cases in which a jury trial might be less effective in ensuring a just outcome and protecting the rights of the accused than a trial before a judge sitting alone.
77 I do not accept that legal argument as to the admissibility of the proposed tendency evidence would occupy anything like two days. One argument is an orthodox challenge to both the areas of evidence set out in the tendency notice and the other involves two uncomplicated questions of law, namely the application of the defence of immature age and whether evidence of convictions 15 years after the conduct alleged in the indictment qualifies as tendency evidence. The resolution of these objections could be had prior to trial on an application under s 361A of the Code and in my view, having looked at the material and the scope of the objections, would take hours, not days.
78 As to the relevance of the fact that the accused is funding his own defence, his counsel relies on the authority of R v Gittany [2013] NSWSC 1503. In that case, in circumstances where evidence had been presented that the accused had been refused legal aid and had not been able to borrow more money after being surprised by an increase in the estimated costs of the trial, McCallum J said at [41]:
"41 I consider that it is in the interests of justice to order a trial by judge alone. I am satisfied on the evidence before me and having regard to the estimates provided by two very experienced counsel that the accused's present legal team has a proper basis for apprehending that a trial with a jury would probably exhaust the accused's available funds well before its conclusion. In that circumstance, I accept unequivocally Mr Strickland's statement to the Court that, if the application were refused, the accused would not have representation for the trial presently listed to commence a week from today."
79 Nothing approaching that factual scenario has been presented to me and as I have said already I do not accept that any time saved by a judge alone trial would be significant.
Other factors
80 Counsel for the accused submits that publicity concerning the accused's convictions for possession of child exploitation material in 2019 is a relevant factor. Counsel relies on the authority of R v Abrahams [2013] NSWSC 729 in which Harrison J said at [52]:
"52
The uncontested evidence in this case shows that the events giving rise to the charges against the accused and Robert Smith have attracted considerable publicity. That has not been limited to the traditional news media outlets but
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has also extended to electronic publicity in the form of Internet posts and on- line exchanges. These questionable sources of (so- called) information thrive in circumstances and at a time in our development in which everybody must be taken to have unlimited access to them. They survive beyond the range of any appropriate regulation or monitoring capable of ensuring either their accuracy or their reliability. Their authors remain anonymous and unaccountable: their motives are unknown and often manifestly mischievous or malevolent. Regrettably in very many instances the ability of the authors of these questionable publications to express rational views about anything at all cannot be known or assessed and certainly cannot ever be assumed. The material referred to already in this case only serves to confirm and reinforce these concerns."
81 Counsel for the accused submits that a search on any of the major internet search engines will reveal the defendant's convictions and that although it is accepted that the jury will be told not to do so, there is no mechanism to ensure that a member of the jury will not undertake an internet search of the accused's name to find out details of the previous offending.
82 Such publicity would undoubtedly be relevant where the accused was publicly known or where there has been extensive pre-trial publicity in respect of the case. However, whilst my own Google search of the accused's full name provided me 62,000,700 results in 0.56 seconds, only one link concerned the accused prior convictions. That was a link to the Supreme Court website and the comments on passing sentence of Blow CJ on 18 September 2019 made when sentencing the accused on the child exploitation charges. This is something that will be common to every accused person who has been convicted and sentenced in this Court and cannot be determinative of the accused's application or any other application for a judge alone trial.
83 Counsel for the State traversed two other matters that might be of relevance to the evaluation of the interests of justice.
84 First he noted that the nature of the case, and the anticipated facts in issue on the trial, are relevant matters to be taken into account. He submits that the case against the accused is "word-on- word", although supported by some corroborative evidence, evidence of complaint and, subject to a ruling, tendency evidence of both prior and subsequent conduct of the accused. Counsel for the State submits that the case will ultimately involve an assessment of whether the complainant is an honest and reliable witness. I add, so too the defendant, although I acknowledge the customary direction given where the State's case relies wholly or substantially on the evidence of the complainant.
85 Accepting that different minds might differ as to this, it is my view that the fact that a trial involves the determination of issues of credibility is at worst a neutral factor in considering whether a trial by judge alone is in the interests of justice. At best the fact that a case involves at its heart the assessment of credibility is a factor favouring a trial by jury.
86 As counsel for the State submits, there is no reason why a jury cannot properly conduct the fact finding exercise in the circumstances of this case and bringing the combined wisdom of twelve randomly selected members of the community to bear on the question of what evidence is truthful and what is not is one of the fundamental purposes of the jury system.
87 I note that in R v Simmons (No 4) [2015] NSWSC 259; 249 A Crim R 120 at 136-137 [73]-
[75] Hamill J said:
"Credibility issues
73 Lord Devlin was of the firm opinion that the jury was the most appropriate tribunal to determine issues of credibility:
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'[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers.'
—Lord Devlin, Trial by Jury, (rev ed) (1966) at 14, Cited in AK v The State of
Western Australia [2008] HCA 8; 232 CLR 438 at [94] and R v Belghar at [24].74 In Doney v The Queen [1990] HCA 51; 171 CLR 207 the High Court
referred (at 214) to:
'...the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.'
75 However, it is difficult to discern a clear consensus in the Australian
authorities in support of a proposition that where credibility issues are central to a
trial, that is a factor that militates strongly in favour of a jury trial."
88 However, in R v McNeil [2015] NSWSC 357; 250 A Crim R 12, Johnson J said at 32-33
[101]-[102]:
"101 It is true that the word credibility does not appear within s.132(5). 102 Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence."
89 In my view the reasoning adopted by Johnson J is in line with the observations of the High Court in Doney (above) and with the traditional wisdom of Lord Devlin. Moreover that reasoning is not displaced by s 361AA(7) of the Code and may even be embraced by the concept of community standards.
90 The second matter raised by counsel for the State is the nature and complexity of the evidence to be adduced on the trial.
91 In R v Simmons (No 4) (above) Hamill J said at 136 [71]-[72]:
"71 Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]. In Kingswell v R [1985] HCA 72; 159 CLR 264 Deane J said at 302-303: 'There is, for example, obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible
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judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial or upon the detailed technical questions which may be involved in the trial of white collar and computer crime.'
72 Further, it may often be in the interests of justice for the reasoning process of the tribunal of fact to be exposed in cases involving an assessment of competing and complicated expert evidence: Arthurs v Western Australia at [90]."
92 As to this I note there is no evidence to be adduced on the State's case that would be unduly complex or difficult for a jury to understand and use. And, the State has not been served with any expert opinion evidence proposed to be relied on by the accused, as required pursuant to s 368B of the Code.
Conclusion
93 There is no presumption in the Code in favour of a jury trial. However, the accused cannot have trial by judge alone "for the asking": see R v Stanley (above), at [42] per Barr J. The defendant who asks the court to make the order carries an evidentiary onus but not a legal one. See R v Simmons (No 4) (above) at 132 [55]-[57].
94 The phrase "interests of justice" has been interpreted broadly in similar interstate legislation. It includes both the interests of the accused and the interests of the public: see R v Simmons (No 4) (above) at 132 [54].
95 The public interest is concerned with the integrity and proper functioning of the criminal justice system, as well as ensuring that the accused receives a fair trial according to law. As already noted this requires a process of evaluation to determine where the interests of justice lies in the circumstances of the particular case
96 Noting the textual differences between s 361AA and s 118 of the Western Australian Criminal Procedure Act (2004) (WA), there is a very useful summary of the relevant considerations, (garnered from two Western Australian Court of Appeal cases) by Corboy J, in State of Western Australia v Edwards [2018] WASC 419 at [9]-[11]:
"The power to order trial by judge alone
9 Section 118 of the CPA provides that:
(1)
If an accused is committed on a charge to a superior court or indicted in the 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
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(a)
That the trial, due to its complexity or length or both, is likely to be unreasonably be burdensome to a jury; or
(b)
That it is likely that acts 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 two 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 two 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 make 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 judges known to the parties.
97 The principles to be applied in determining whether an order should be made under s 118 were recently summarised by the Court of Appeal in Steele v The State of Western Australia [2018] WASCA 133. The summary was taken from the reasons of Buss JA (as his Honour then was) in LFG v The State of Western Australia [2015] WASCA 88. The Court of Appeal identified the following principles:
(a) Neither the prosecutor nor the accused has a right to elect a trial by judge alone. (b) The court must be affirmatively satisfied that it is in the interests of justice to make an order under s 118. That requires the court to undertake a process of evaluation to ascertain where the interests of justice lie. (c) The expression "in the interests of justice" includes not only the interests of the parties but also the public interest. There is a public interest in maintaining the proper functioning and integrity of the criminal justice system as administered by the courts. (d) It is apparent from s 118(5) of the CPA that the legitimate interests of jurors is an aspect of the public interest that is encompassed by the concept of "in the interests of justice". (e) The requirement that an accused person receive a fair trial according to law is fundamental to the application of s 118. It will be in the interests of justice to order a trial by judge alone if the order is necessary to ensure the accused receives a fair trial according to law. (f) An order for trial by judge alone will be necessary if there is a real and substantial (as distinct from a remote) doubt about whether, in the particular case, the accused will receive a fair trial according to law by or before a jury. 98 As Buss JA emphasised in LFG, whether it is in the interests of justice to make an order under s 118 of the CPA it must necessarily be determined according to the particular circumstances of the case. However, his Honour observed in LFG:
"It may be 'in the interests of justice', within s 118(4), to order a trial by 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:
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(a)
pre-trial publicity has created a public climate of hostility or prejudice to the accused which the 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 as (sic) 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.The fact that the ordinary mode of trial on indictment is a trial by a judge and jury, and that this is the mode of trial unless the court makes an order under s 118(1), provides part of the context within which s 118 of the CPA is to be interpreted and applied. However, the section is concerned with the interests of justice; it requires a process of evaluation to determine where the interests of justice lie. A jury has certain advantages in fact finding that a trial judge does not have and a trial judge has the advantage of experience in making findings of fact that a jury does not possess. It is necessary to balance those competing considerations. An order should be made pursuant to s 118 if the court is positively satisfied that, in a particular case, it is in the interests of justice for the accused to be tried by judge alone." (Endnotes omitted.) (Emphasis added.)
99 I am not so satisfied. As can be seen from the foregoing reasons, in carrying out the evaluative process, I have not found one argument advanced on behalf of the accused that militates, in any significant way, in favour of ordering a judge alone trial in this case. The closest to a cogent argument in favour of so ordering is the fact that a judge sitting alone must provide reasons showing the principles of law applied, and the findings of fact relied on, where a jury is not so required. Whilst this fact might provide further protection against the misuse of prejudicial evidence by a finder of fact, I have already explained my reasons as to why that fact alone cannot be decisive of the interests of justice in the present case. It might well be in another case where the risk of a jury misusing evidence might be greater and where the question of community standards was not a feature of the case.
100 I am satisfied, as I must be, as a matter of fact, of the existence of informed consent given by the accused as required by the provisions of s 361AA(6) of the Code. I am satisfied that the accused has provided a reasonable explanation for his delay in making this application. I am not satisfied that it is in the interests of justice to grant the application.
101 The application is dismissed.
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