R v Abdaly; R v Hosseinishoja (No 3)

[2022] NSWSC 1511

Supreme Court

New South Wales

Medium Neutral Citation:

R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511

Hearing dates:

25-31 October 2022, 1-3 November 2022

Date of orders:

07 November 2022

Decision date:

07 November 2022

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

(1) Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial of Sayed Anush Abdaly and Sayed Amirmohammad Hosseinishoja for the murder of Nikola Srbin will be conducted by a judge sitting without a jury.

(2) The trial will commence on Wednesday, 9 November 2022.

Catchwords:

CRIMINAL LAW – trial by judge alone – relevant considerations – prejudicial media coverage – gangland crime – where co-accused subject to extensive media coverage – multiple murders – drug deal gone wrong – glitches in dealings – Rebels – capacity of jury to follow directions – extensive delay in trial – one accused refused bail for six years – need for trial to be completed – risk of discharge of jury – where significant issue of credibility of principle witness – witness criminal concerned in the offence – whether assessment of credibility involves community standards – whether significant factor in favour of a jury trial – stirring exaltation of jury system – context – where both accused elect for trial by judge order – finely balanced application – interests of justice – order for trial by judge made

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 132, 132A

Jury Act 1977 (NSW), s 68C

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Alameddine v R [2022] NSWCCA 219

Arthurs v The State of Western Australia [2007] WASC 182

Coats v Western Australia [2009] WASCA 142

Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197

Director of Public Prosecutions v Lehrmann(No 5) [2022] ACTSC 296

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453

R v Abdaly; R v Hosseinshoja(No 2) [2022] NSWSC 1510

R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1

R v David Peter Cain (No.1) [2001] NSWSC 116; 121 A Crim R 365

R v Dawson [2022] NSWSC 552

R v Dawson [2022] NSWSC 1131

R v Gittany(No 4) [2013] NSWSC 1737

R v GSR (No 3) [2011] NSWDC 17

R v Hutchison & Wilkinson [2018] NSWSC 1759

R v JH (No 3) [2014] NSWSC 1966

R v McNeil [2015] NSWSC 357; 250 A Crim R 12

R v Qaumi & Ors(No 14) [2016] NSWSC 274; (2016) 265 A Crim R 575

R v Qaumi & Qaumi [2016] NSWSC 1473

R v Qaumi & Qaumi(No 12) [2017] NSWSC 134

R v Simmons and Moore(No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120

R v Sio(No 3) [2013] NSWSC 1414

R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37

R v Stanley [2013] NSWCCA 124

Redman v R [2015] NSWCCA 110

Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325

The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16

Texts Cited:

J O’Leary, “Twelve angry peers or one angry judge: An analysis of judge lone trials in Australia” (2011) 35(3) Criminal Law Journal 154

Lord Devlin, Trial by Jury, (rev ed, 1966)

M Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5

Category:

Procedural rulings

Parties:

Rex (Plaintiff)
Sayed Anoush Abdaly (Defendant)
Seyed Amirmohammad Hosseinishoja (Defendant)

Representation:

Counsel:
D Patch (Rex)
M Cunneen SC (Abdaly)
G Brady SC with M Ayache (Hosseinishoja)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Tohi Lawyers (Abdaly)
OneGroup Legal (Hosseinishoja)

File Number(s):

2020/306132; 2020/306616

Publication restriction:

Except for publication on legal websites, there is an interim non-publication order over the names of the two accused and Abuzar Sultani

Judgment

1. By separate notices of motion, each of the accused seeks an order under s 132 of the Criminal Procedure Act 1986 (NSW) (the CP Act) that they be tried by judge alone, sitting without a jury. The Director of Public Prosecutions (DPP) opposes the application. The accused are charged jointly with the murder of Nikola Srbin at Redfern on 5 June 2013. Up until Wednesday 26 October 2022, a third man (Abuzar Sultani) was also jointly charged with that crime.

2. The application is governed by ss 132 and 132A of the CP Act. The notices of motion were filed more than 28 days prior to the trial date and leave is not required under s 132A(1). Each of the accused, including Mr Sultani, applied for a trial by judge alone and the prohibition in s 132A(2)(a) does not apply.

3. I am satisfied that each of the accused has received the advice of Australian legal practitioner: CP Act, s 132(6).

4. Subject to two matters, the Prosecutor does not contend that “the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness:” see s 132(5). The first matter referred to is the possibility that an alternative verdict of manslaughter by unlawful and dangerous act may arise if the tribunal of fact is not satisfied the accused (or either one of them) is guilty of murder. However, the nature of the evidence in support of the allegation and the anticipated defence means that it is extremely unlikely that there will be a live issue of “dangerousness” in the trial. The Prosecutor, very properly, did not rely on the possibility that the alternative verdict (and thus the issue of dangerousness) may arise, observing that it was more of a theoretical possibility, rather than a practical one. [1] The second matter is that the Prosecutor contends that the assessment of the credibility of witnesses is a matter involving the application of community standards. As will be seen, I do not accept that submission.

   1. Tcpt, 1 November 2022, p 155.

5. Because “the prosecutor does not agree to the accused person being tried by a Judge alone”, the question for the Court is whether “it is in the interests of justice” that they be so tried: s 132(4).

6. It is necessary briefly to recount the facts as the prosecution will allege them to be and to state what I understand the defence case is likely to be.

The facts and cases of the parties

7. The killing of Nikola Srbin had its genesis in a drug deal that went wrong. A man referred to in the material as “Witness A” purchased drugs from some dealers including Mr Srbin but failed to pay for them. Mr Srbin, his father and an associate made robust attempts to be paid. This included making several demands for payment and then, shortly before the killing, they detained Witness A and assaulted him. The assault included holding a knife to his eye and threatening to torture him. When he was released, Witness A spoke to the former co-accused Mr Sultani. Mr Sultani was a member of a motorcycle club called the Rebels. He had a number of criminal associates and was to become the President of the “Burwood Chapter” of the Rebels. At the time he was designated “the Sergeant at Arms”.

8. The prosecution case will be that Mr Sultani took action on behalf of Witness A. On 16 May 2013, the day that he became aware of the glitch in the dealings between Witness A and Srbins, he summoned a number of members of the Burwood Chapter of the Rebels to some premises which were to become their club house. It will be alleged that a group of about 10 people, including Witness A, Mr Sultani and the two accused men entered a joint criminal enterprise to inflict unlawful violence on Mr Srbin and to cause him (at least) grievous bodily harm. The prosecution will rely on an alternative case based on what is often called, in Australia, extended joint criminal enterprise. That is, it will be contended that the accused entered a joint criminal enterprise to commit some less serious crime but that it was within their contemplation that the members of the group may, between them, commit all of the elements of murder; and they did.

9. At Mr Sultani’s instigation and direction, the group collected weapons and travelled to Redfern, where they located Mr Srbin and assaulted him. He sustained severe injuries and died on 5 June 2022.

10. The foregoing is a simplified account of the prosecution case. However, it suffices for present purpose save as to one detail. The prosecution case is that Mr Abdaly and Mr Hosseinishoja involved themselves in the enterprise because of their association with the Rebels and Mr Sultani. Through the evidence of some former gang members, or “registered source” witnesses, the prosecution will seek to establish that the associations between the men and the group was close and sustained, and continued over something like three or four years, during which Mr Sultani became the President of the Burwood chapter of the Rebels.

11. While it is not anticipated that the graphic details will form part of the prosecution case, during those years (basically from 2013 to 2016) Mr Sultani became the leader of a criminal group which committed many notorious and horrendous crimes. This included the commission of multiple counts of murder. This undisputed fact, and the publicity surrounding it, forms part of the basis of the application for a judge alone trial. The prosecution also sought to adduce evidence of the involvement of Sultani and the “group” in a diverse range of criminal offending including trading in guns and drugs, dealing in stolen cars and making large investments in the illegal importation of border-controlled goods. However, that evidence was excluded. [2]

    2. See R v Abdaly; R v Hosseinshoja (No 2) [2022] NSWSC 1510.

12. The case that each of the accused is expected to run at trial is that, while they do not dispute their membership of the Burwood Chapter of the Rebels or their association with Mr Sultani, they were not part of the group of men who gathered at the club house and went on to kill Mr Srbin. They will dispute the “identification” – or, in any event, the evidence – of their participation expected to be given by Witness A. There will be a sustained attack on Witness A’s credibility. It is also foreshadowed that there will be a substantial attack on the credibility of other “registered source” witnesses, although the forensic purpose of that attack is a little mysterious at this stage. Much of the evidence goes to identify the two accused men by reference to their nicknames and, it seems, that evidence is not disputed. However, as discussed in the argument the lawyers appearing for the accused are not required, in advance of the trial, to disclose the basis upon which the credibility of these men (I assume they are men) will be put in issue.

Evidence and submissions on the application

13. The applicants read three affidavits:

1. An affidavit of Harry Howard, Mr Sultani’s solicitor (MFI 8);

2. An affidavit of Jessica Tohi, Mr Abdaly’s solicitor (MFI 9);

3. An affidavit of Michael Ayache, Mr Hosseinishoja’s solicitor (MFI 10).

14. After Mr Sultani entered his guilty plea, the remaining parties confirmed that they continued to rely on Mr Howard’s affidavit.

15. A revised prosecution case statement was tendered as Ex VD-1. A hard copy of the results of a “Google search” for the name “Sayed Abdaly” was tendered as Ex VD-2. In the course of other pre-trial applications, including an application for orders that various witness give evidence remotely and the objection to the “criminal group” evidence, other documents were tendered on the voir dire. This included Ex VD-4, which comprised of a series of statements by a few of the witnesses. This evidence was relevant to some of the arguments made by both sides on the application for a judge alone trial. I have taken that evidence into account in reaching my conclusion as to where the interests of justice lie for the purpose of s 132(4) of the CP Act.

16. I have read but disregarded the written submissions filed in advance of the hearing by counsel for Mr Sultani. Mr Sultani’s position was somewhat different to that of the other accused because he has been the focus of a media storm following his sentencing for multiple murders and being a victim of a stabbing by an equally notorious gangster while being held in the high-risk management unit at Goulbourn.

17. Mr Brady, Senior Counsel for Mr Hosseinishoja, filed written submissions in advance of the hearing (MFI 6) and then three sets of written submissions during the hearing (MFI 15, 17 [3] and 19), although he was largely absent during the two weeks of the pre-trial hearing as a result of a very unfortunate diary clash. Mr Brady was able to attend by video link for part of Friday 28 October 2022 and Mr Hosseinishoja was ably represented by his solicitor, Mr Ayache. Ms Cunneen SC, appearing for Mr Abdaly, adopted the written submissions of her colleague and made oral submissions on the issue. The Prosecutor provided written submission (MFI 7) and made oral submissions.

    3. These submissions were largely concerned with the admissibility of the “criminal group” or association evidence.

18. Due to the chaotic nature of the pre-trial hearing, which was caused by Mr Sultani’s last minute plea, the availability of counsel, and the matters of which I complained in my judgment concerning the admissibility of the “criminal group” evidence, the submissions were scattered over a number of days. [4]  Further, the legal and evidentiary landscape changed as a result of Mr Sultani’s plea and the decision to exclude almost all of the evidence the Prosecutor sought to tender on the issue of criminal activities of Mr Sultani’s criminal group(s).

    4. Tcpt, 25 October 2022, pp 14-15; Tcpt, 26 October 2022, pp 35-40, 48-50; Tcpt, 28 October 2022, pp 54-60, 62-68, 78-81, 83-84; Tcpt, 2 November 2022, pp 162-172, 173-178, 188; Tcpt, 3 November 2022, pp 189-192.

Relevant considerations and the authorities

19. The leading authority in the New South Wales Court of Criminal Appeal remains R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1. A persuasive and important interstate authority is the decision of Martin CJ in Arthurs v The State of Western Australia [2007] WASC 182. I have taken into account the relevant considerations I identified in three previous judgments: R v Simmons and Moore(No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120, R v Qaumi & Ors(No 14) [2016] NSWSC 274; (2016) 265 A Crim R 575 and R v Qaumi & Qaumi [2016] NSWSC 1473. These authorities have been considered for various reasons by the Court of Criminal Appeal in Redman v R [2015] NSWCCA 110, Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 and Alameddine v R [2022] NSWCCA 219.

20. Two of the matters upon which judges have taken differing positions are whether (i) intention is a matter that raises community standards and (ii) whether a jury is the more appropriate tribunal to determine issues of credibility. I identified those controversial issues in my earlier decisions referred to above and, as I understand it, neither issue has been subject to conclusive consideration by the appellate courts. I maintain the views expressed in my earlier decisions.

21. Given the limited time in which I must make this decision, I do not propose to repeat the detailed analysis I have undertaken in earlier cases. However, I will state some of the general propositions that have guided my decision making in the present case:

1. There is no presumption in favour of a trial by jury, thereby casting an onus on the accused. However, the accused bears an evidentiary burden on the issue. See R v Belghar at [96].

2. The expression “interests of justice” is one of very wide import and involves balancing a diverse range of considerations which may point in different directions.

3. Each form of trial has advantages and disadvantages. A decision made by a jury has the advantage of unanimity (or near unanimity) following a period of confidential discussions and debate by twelve members of the community. However, the verdict of a jury is inscrutable and interested parties cannot know the precise process of reasoning engaged by the group or individual members of the group. A verdict reached by a Judge is transparent and must be accompanied by adequate reasons. The public and interested parties will know the legal principles applied, the factual findings made and the process of reasoning that led to the verdict, be it guilty or not guilty. See, generally, AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [90], [93]-[97] and R v Belghar at [23]-[37], [112].

4. It has been said that an accused person “cannot have a trial by judge alone for the asking”: R v Stanley [2013] NSWCCA 124 at [42]; but see R v Simmons & Moore (No 4) at [58]-[59]. However, the fact that the accused have taken legal advice and elected to be tried by judge alone is a relevant consideration in deciding whether it is in the interests of justice that the trial be by judge alone.

5. There is no rule that certain kinds of cases, because of their seriousness or notoriety, ought to be determined by a jury: R v Qaumi & Qaumi at [17], Arthurs v Western Australia at [82]. I do not accept the Prosecutor’s submission to the contrary. [5] Many such cases, including murder cases of notoriety, are determined by a Judge sitting without a jury: see, for example, R v Gittany (No 4) [2013] NSWSC 1737, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, R v Qaumi & Qaumi (No 12) [2017] NSWSC 134, R v Hutchison & Wilkinson [2018] NSWSC 1759 and, most recently, R v Dawson [2022] NSWSC 1131.

   5. Prosecutor’s written submissions: applications for a judge alone trial, 24 October 2022, at [20] (MFI 7).

6. It is generally accepted that juries can and will put prejudicial material out of its collective mind and will follow the directions provided by the Judge. This includes directions forbidding the jury or individual members from undertaking research, interrogating the internet and conducting its own inquiries during the trial. See, for example, The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, Gilbert v The Queen (2000) 201 CLR 414 at 425; [2000] HCA 15 and Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20.

7. However, that rule is not absolute and a number of cases show that jurors sometimes disobey clear and repeated directions not to conduct its own inquiries. See Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453, R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37, Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325, R v Sio (No 3) [2013] NSWSC 1414, R v JH (No 3) [2014] NSWSC 1966, Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296.

8. I accept the Prosecutor’s submission that the strength of such directions in New South Wales is increased because amendments to the Jury Act 1977 (NSW) (see: s 68C) have created an offence where a juror conducts their own inquiries. However, in Sio (No 3), Adamson J explained that the jury had written instructions that researching the internet constituted a criminal offence and yet one of the jurors disobeyed the direction.

9. Further, while the system proceeds on the assumption that jurors can disregard prejudicial material and will obey the Judge’s directions, academics have questioned the validity of the assumption, and in some cases, it has been accepted that the extent of publicity can be such that more than jury directions is required to cure the potential for prejudice. See R v GSR (No 3) [2011] NSWDC 17, Arthurs v Western Australia at [87]-[92], R v Dawson [2022] NSWSC 552. See also M Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 and J O’Leary, “Twelve angry peers or one angry judge: An analysis of judge alone trials in Australia” (2011) 35(3) Criminal Law Journal 154.

10. While the general efficiencies of the different modes of trial may be considered as “part of the mix”, those efficiencies are of very little weight in assessing where the interest of justice lies. See R v Belghar, [110]-[111] and R v Simmons; R v Moore (No 4) at [67]-[69]. I am compelled to reject a large part of Mr Brady’s submissions which seemed to be predicated on the contrary proposition. [6] McLellan CJ at CL provided clear guidance on this issue in R v Belghar when his Honour said at [111]:

“However, I would not accept that the interests 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, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.”

6. Submissions on behalf of the accused Seyed Hosseinishoja: application for a judge alone trial, 20 October 2022, at [3(d)], [35]-[39] (MFI 6); Submissions on behalf of the accused Seyed Hosseinishoja: application for a judge alone trial, 26 October 2022, at [4(d)] (MFI 15); Submissions on behalf of the accused Seyed Hosseinishoja: application for a judge alone trial, 1 November 2022, at [1(c)-(g)] (MFI 19).

The evidence and submissions

22. The evidence established that there have been, and continue to be, several criminal proceedings involving Mr Sultani and members of groups with which he was associated and of which he was the leader. He pleaded guilty to three counts of murder which were committed in what can generally be described as a gangland setting and other members of his group have been tried and convicted of involvement in those murders. There are, and have been, many other trials involving Mr Sultani, the Rebels and members of his criminal cohort.

Prejudicial media coverage

23. There has been a substantial amount of media coverage surrounding the criminal proceedings. Some of the publicity has been sensational, if not hysterical. Mr Sultani has been described as “Sydney’s ultimate hitman”, a “mass murderer” and a person running “a black ops killing squad”. Google searches annexed to the affidavits provide some insight into the extent of the publicity. There has also been a lot of reportage of the Rebels which has been called the “largest outlaw motorcycle club in Australia” and reported to be involved in drugs, violence, homicide and other gang related activities.

24. The applicants submitted that the factual circumstances and evidence to be tendered in their trial is such that the prejudice arising from the publicity will create a real risk that the trial would be unfair. The submission was that some members of the jury panel are likely to be aware of the publicity and will almost inevitably have a prejudiced response to the evidence because of the accused’s association with Mr Sultani, membership with the Rebels and the allegation of murder committed in the context of organised criminal activity (drug dealing).

25. It was further submitted that should any member of the jury disobey directions and undertake a search of the internet, the prejudice would be incurable.

Efficiency

26. As I said earlier, I do not accept the submissions made concerning the “efficiencies” of a trial by judge alone. Greater emphasis was placed on this aspect of the application after Mr Sultani pleaded guilty and the evidence of other criminal activities of the “group” was excluded.

27. With respect, some of these submissions were something of a stretch. For example, it was submitted in writing:

“d. There are numerous statements that the defence agree can be read. They can be the subject of a tender bundle in a judge alone trial or alternatively the subject of extensive agreed facts. There is far less capacity for this approach in a jury trial.” [7]

7. Submissions on behalf of the accused Seyed Hosseinishoja: application for a judge alone trial, 1 November 2022, at [1(d)] (MFI 19).

28. Contrary to this submission, it is common for juries to be presented with substantial tender bundles in complex criminal trials. It is also common for extensive agreed facts and admissions to be provided to juries. Ms Cunneen accepted this in argument and Mr Brady was not available at the time of the argument to explain why it would not be possible to provide the jury with tender bundles in this case. While there may be some saving of time in the court room if the statements are not read aloud (which is the custom in a jury trial), the trial judge will still be required to read the statements. Any saving in court time would be minimal or illusory.

29. It was also submitted:

“f. Fourth, there is a real prospect that, even if the jury trial were to run smoothly, it will run into [the] end of term. The jury trial, even if it runs smoothly is likely to run 4 to 5 weeks before the jury retires. The jury is very likely to be deliberating through the end of term.” [8]

8. Ibid at [1(f)].

30. The commencement of the trial was delayed by several factors. First, Mr Sultani’s plea took a couple of days to facilitate, largely because of the failure of Corrective Services to co-operate in facilitating AVL conferences. Secondly, a significant admissibility argument (concerning the so-called criminal group evidence) was not identified or notification given to the court in advance, and was not subject to discussion between the parties until the argument commenced. Those first two matters meant that the pre-trial hearing, originally listed for two days, and then four days, occupied two weeks. Third, the prosecution served a substantial amount of additional material and Ms Cunneen argued successfully that a jury trial should start somewhat later than a judge alone trial as a result. Fourth, Mr Brady was not available due to a commitment to another court case which started late and took longer than expected.

31. As a result of those delays, I indicated that a jury trial would commence on Wednesday 9 November 2022; if the jury retired to consider its verdict after a full five weeks (which seems an extremely long estimate given the limited issues to be agitated in the trial), it would be mid-December and unlikely to interfere with the Christmas break, even if the deliberations went beyond the scheduled end of the law term (Friday 16 December).

32. It was also submitted that if the jury trial did not end this year “there is a real question whether the matter can run as a jury trial this year” and “it is not likely to be listed until 2024.” [9] This echoed an observation made by the Prosecutor and arises because each of the accused have two other trials listed next year. However, I was provided with a list of dates for those trials and consulted with the list Judge and there appears to be a number of dates available next year.

    9. Ibid at [1(g)].

33. I will also add, as I suggested in argument, that there is an unfortunate, not to say unseemly, appearance in the parties causing delay of the kind that occurred in the pre-trial hearing and then relying on that delay and consequent listing difficulties as part of their argument in favour of a judge alone trial in a contested application.

34. Subject to a matter raised on behalf of Mr Abdaly to which I will return immediately – which is not so much about “efficiency” than it is about the risk of jury trial aborting – I have given the “efficiency of the trial” little to no weight in assessing whether it is in the interests of justice for the trial to be by judge alone.

Mr Abdaly’s custodial status and the risk of a jury trial aborting

35. Ms Cunneen drew attention to the fact that her client has been in custody since 2016. He has three pending trials including this one. The two other trials were listed earlier this year but, for reasons that were not identified, those trials were not completed and have now been listed next year. Mr Abdaly has not been granted bail (as Mr Hosseinishoja has) and has been in custody for around six years. Ms Cunneen submitted if the trial proceeds by judge alone, “[o]ne way or another, whether it be guilty or not guilty, there will be an end to that matter and this year with almost [certainty], which just cannot these days be said to be the case with a jury trial.” [10]

    10. Tcpt, 2 November 2022, p 163(18-21).

36. Ms Cunneen acknowledged that this situation was “peculiar to [her] client” but maintained that the issue “very much advances we would submit the interests of justice”. [11]

    11. Ibid, p 163(16-17).

37. I accept that this issue is a significant one. The rights of an individual litigant may also be relevant to an assessment of the interest of justice. Further, as Sperling J famously said in the context of deciding a bail application: [12]

“The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.”

12. R v David Peter Cain (No.1) [2001] NSWSC 116; 121 A Crim R 365 at [9].

38. The failure of the justice system to reach conclusion in these cases has a capacity to bring that system into disrepute and I accept Ms Cunneen’s submission that, even though it is a matter personal and peculiar to Mr Abdaly, it is a matter relevant to an assessment of “the interests of justice” for the purpose of s 132(4) of the CP Act.

Forensic decision by accused to introduce the evidence of Mr Sultani’s other murder convictions

39. Mr Brady submitted there may be prejudice to the accused in the introduction, or non-introduction, of evidence of Mr Sultani’s involvement with other offenders in several other killings. It was suggested that this evidence may be introduced (by the accused) to prove that Mr Sultani had other confederates he could have summoned to commit this crime. It was suggested this could cause prejudice one way or the other. The Prosecutor submitted, in effect, that this submission was fanciful and speculative. It was submitted that a vast amount of evidence would be introduced by the prosecution if defence counsel followed that course. That evidence would go to establish (so it is said) the accused’s involvement with Sultani in other murders.

40. On one level, the Prosecutor’s response had a capacity to support the submission; it is difficult to see how a jury would be able to decide the case without prejudice if there was other evidence that the accused was involved in other homicides. On another level, it demonstrates that the submission was based on speculation that the accused would make a particularly courageous, not to say unwise, forensic choice. Mr Brady almost acknowledged this in argument.

41. It is difficult to make an assessment of this submission and I have given it very little weight.

Witnesses causing the trial to abort by raising prejudicial material

42. Ms Cunneen suggested that some “junior” [13] police officers and some of the civilian witnesses may, deliberately or otherwise, blurt out prejudicial information about other offences committed by the two accused men, Mr Sultani or the groups with which they are allegedly associated. Concerns were raised over the former gang member (registered source) witnesses and the father of the deceased, who was also, on the prosecution case, involved in criminal offending.

    13. Tcpt, 2 November, pp 163-164.

43. While there is always a risk of such prejudicial material emerging, particularly when witnesses are emotional, and while I have taken the submission into account, the risk is impossible to assess and I am unable to give it a great deal of weight, except in the context of the submission concerning Mr Abdaly’s custodial status and the need to ensure that his trial reaches conclusion.

The Prosecutor’s position

44. The Prosecutor’s submissions were appropriately restrained. While the DPP opposed the application, the Prosecutor properly conceded that it was a “finely balanced decision”. [14]

    14. Ibid, p 178(42-43).

45. He placed considerable reliance on the strong line of authority to the effect that juries will follow directions and can put prejudicial material aside and decide the case on the true issues. He pointed to the fact that the prejudicial media coverage came in waves (first, when there was a series of arrests, then, after a non-publication order expired following Mr Sultani’s sentencing and the trials of other men for previous murders, and then again after Mr Sultani was stabbed in prison). He said the media coverage had died down in the months since that stabbing. However, he accepted that there had been substantial, potentially prejudicial, reporting on Mr Sultani and his criminal activities. He also accepted there is likely to be significant publicity during the trial and resulting from the evidence expected to be adduced.

46. The Prosecutor disputed the concerns raised about witnesses causing a jury trial to miscarry. While acknowledging to some degree the risk of prejudice arising from subject matter of the trial and the media interest in this and previous cases, the Prosecutor submitted these concerns can be managed by appropriate directions. He disputed that the case was so unusual that it constituted an exception to the general rule that the jury will obey directions and submitted that this matter did not justify an order for a judge alone trial.

47. The Prosecutor stressed that the onus (in the sense of an “evidentiary burden” as described in R v Belghar) was on the applicants to establish that the interests of justice favoured a judge alone trial.

Credibility issues

48. As I understand it, the case will turn to a large degree on an assessment of the credibility of Witness A. His evidence that the two accused men were part of the group that bashed Mr Srbin is disputed. While that evidence may receive some circumstantial support, the outcome of the case may turn on whether the tribunal of fact accepts that Witness A as a witness of truth and that his evidence is reliable.

49. Witness A was criminally concerned in the events and has served a sentence of imprisonment for manslaughter. There will be a significant attack on his credibility. The parties made diametrically opposed submissions as to the significance of this issue to the question of whether it was in the interests of justice for the accused to be tried by a judge alone.

50. Senior Counsel for Mr Hosseinishoja submitted in writing (reproduced as written):

“In a case where the main attack of credibility will be on a criminally informed witness, it is submitted that a judge would be best placed to make assessments of credibility…”. [15]

15. Submissions on behalf of the accused Seyed Hosseinishoja: application for a judge alone trial, 20 October 2022, at [33] (MFI 6).

51. Reliance was placed on a passage from Owen JA’s judgment in Coates v Western Australia [2009] WASCA 142 at [10]-[11] and reference (by way of footnote) was made to the fact that I considered that judgment in Simmons and Moore (No 4).

52. This submission was adopted and expanded on in the in the oral submissions of Ms Cunneen. The joint position of the accused was that a “trained and experienced judge” was in a better position than a jury to assess the credibility of a witness who was involved in the crime. The same applied to a number of other witnesses expected to give evidence who were involved in the criminal milieu and some of whom may be seeking to obtain a benefit by giving evidence on behalf of the police.

53. The Prosecutor submitted that “the difficulty with this submission is that (even if it were correct, which the Crown disputes) it ignores the fact that questions of credibility require the application of community standards.” [16] A passage from the judgment of Johnson J in R v McNeil [2015] NSWSC 357; 250 A Crim R 12 was set out and relied upon. The Prosecutor submitted that a jury, properly directed and warned as to the danger of the evidence given by people such as Witness A, is better position to determine these issues.

    16. Outline of Crown Submissions: application for a judge alone trial, 24 October 2022 at [24] (MFI 7).

Consideration and determination

54. I will address the submissions concerning credibility first.

Credibility

55. I am unable to accept the submissions of either party on the credibility issue.

56. As to the accused’s submission, the Court of Appeal’s judgments in Coates v Western Australia and my judgment in Simmons and Moore (No 4) pointed to the advantages of both modes of trial. On the one hand, a judge has more experience, especially with witnesses such as those to give evidence against the accused here, because judges assess credibility every day. Further, a Judge is required to expose their reasoning, factual findings and the principles of law they apply. On the other hand, the jury has the advantage of unanimity and the opportunity of robust discussion amongst its members. The latter matter was specifically adverted to by the trial Judge in Coates v Western Australia: see the judgment of Owen JA at [12].

57. The Prosecutor’s reliance on the judgment of Johnson J in R v McNeil must also be treated cautiously. His Honour did not decide that the assessment of credibility involved the application of community standards. At paragraph [102], his Honour specifically stated that his conclusion (that where credibility is an issue, it is a factor that may operate in favour of trial by jury) was reached “whether an assessment of credibility involves application of objective community standards or not”.

58. As the judgment in R v Simmons & Moore (No 4) makes clear, this is an issue where there are authorities going both ways. Again, this reflects the fact that there are advantages to both modes of trial. Most, but not all, criminal trials involve issues concerning one or more witness’s credibility. An accused is not to be denied a trial by judge alone because the contradictor can point to such issues. This could be why Johnson J was careful to use the word “may” in reaching his conclusion in R v McNeil.

59. I would also note that the comments made by a judge of the High Court in AK v Western Australia (cited at [103]) in R v McNeil) were made in a different context. In that case, the High Court was considering the adequacy of reasons given in a judge alone trial and the passage in question contrasted the character of a Judge alone trial with that of a jury trial. In AK v Western Australia, the Judge said at [89]:

“But the duty to give reasons has even greater significance where it is created by a provision like s 120(2), enacted as part of a particular statutory scheme of a novel and radical character regulating the substitution of trial by judge alone for trial by jury.”

60. It was in that context that the Judge went on at [90]-[98] to cite Lord Devlin’s stirring exaltation of the jury system. [17] The jury’s entrenched role as the adjudicator of serious criminal cases, the requirement of unanimity, the history of criminal defendants being judged by their peers, and the other matters referred to, meant that the “safeguards” imposed in permitting trials by a judge sitting alone had to be given their full voice. One of those safeguards was the requirement to give adequate reasons.

    17. Lord Devlin, Trial by Jury, (rev ed, 1966).

61. The most eloquent singing of the praises of the jury system cannot supplant the requirement to determine whether it is in the interests of justice that an accused be tried by judge alone, when the accused has taken the advice of experienced lawyers and applied to be so tried.

62. I have carefully considered the contrary position taken by Johnson J in R v McNeil, but I remain of the view that the fact that the credibility of witnesses is expected to be an issue in a criminal trial will be a neutral factor in most cases. In the present case, even taking into account the nature of the witnesses whose credibility is to be considered and appreciating the reasoning of the Court in Coates v Western Australia, credibility remains a neutral factor.

63. It is true that a particular judge may have more experience in dealing with such witnesses, but a jury would be given very strong warnings as to the potential unreliability of the evidence, will have the opportunity for collaborative discussion and its verdict will have to be unanimous (or, in certain circumstances, by a majority of eleven to one).

Prejudice

64. On the issue of prejudice, I generally accept the Prosecutor’s submissions that safeguards can be put in place to ensure the jury acts reasonably and not on the basis of a prejudiced reaction. I also accept that, despite the cases where jurors have failed to do so, it is most likely that the jury will obey directions and not undertake internet research into the Sultani criminal enterprises, the Rebels and the two accused men.

65. However, I accept there are real risks involved in a jury trial and that, if those risks manifest themselves, the proceedings will almost certainly miscarry. I assume this reality lies behind the Prosecutor’s submission that the decision was finely balanced.

The election by the accused

66. It is not without significance that both accused have sought to be tried by judge alone.

The consequences to Mr Abdaly of the trial aborting

67. If the risk of the jury being discharged manifests in this case, it will have unusually dire consequences. Mr Abdaly has been in custody for about six years and it is, as Ms Cunneen submitted, imperative that his trial reaches conclusion this year. If a jury trial aborts, it would not be possible to commence the trial again this year, other than (perhaps, and depending on the timing) by judge alone.

Conclusion

68. There are no strong factors pointing in favour of a trial by jury. Most of the factors are neutral when it comes to an evaluation of the interests of justice. I have considered the Prosecutor’s submissions and accepted his contention that the application is finely balanced.

69. Ultimately, I am satisfied that the following matters have satisfied the evidentiary burden that falls on the accused men: (i) the election by the accused, (ii) the risk of the trial aborting or being infected with prejudice arising from the substantial amount of media interest and the subject matter of the trial, and (iii) the consequences to an individual accused (Mr Abdaly) of the trial not concluding this year.

70. I am satisfied, in the particular circumstances of this case, it is in the interests of justice that the accused by tried by judge alone.

Orders

71. Accordingly, I make the following orders:

1. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial of Sayed Anush Abdaly and Sayed Amirmohammad Hosseinishoja for the murder of Nikola Srbin will be conducted by a judge sitting without a jury.

2. The trial will commence on Wednesday, 9 November 2022.

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Endnotes

Decision last updated: 09 November 2022