R v Adams (No 2)

[2016] NSWSC 1359

Supreme Court

New South Wales

Medium Neutral Citation:	R v Adams (No 2) [2016] NSWSC 1359
Hearing dates:	22 September 2016
Date of orders:	23 September 2016
Decision date:	26 September 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), I order that the accused be tried by judge alone.
Catchwords:	CRIMINAL – application for trial by judge alone – whether in the interests of justice – where accused has limited access to funds – whether complexity of expert evidence will affect jury comprehension – whether the need for multiple directions will affect jury comprehension – potential prejudice of tendency evidence in a murder trial – application granted
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 132, 132(4), 132(5), 132A(1) Evidence Act 1995 (NSW), ss 137, 165B
Cases Cited:	AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72 R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729 R v Adams [2015] NSWSC 1960 R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 R v Christie [1914] AC 545; (1914) 10 Cr App R 141 R v Dean [2013] NSWSC 661 R v Gittany [2013] NSWSC 1503 R v Matonwal & Amood [2016] NSWCCA 165 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 R v Stanley [2013] NSWCCA 124 Redman v R [2015] NSWCCA 110 RKF v The Queen [2016] NSWCCA 116
Category:	Procedural and other rulings
Parties:	Regina Robert John Adams
Representation:	Counsel: M Hobart SC (Crown) C Parkin (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Murphy’s Lawyers (Accused)
File Number(s):	2013/382738

Judgment

Introduction

1. On Thursday 22 September 2016, I heard an application by the accused that his trial – which is listed to commence on Monday 26 September 2016, with the jury to be empanelled on the following day – be heard by judge alone.

2. On Friday 23 September 2016, due to the urgency of the situation, and with the consent of both counsel, I made an order that the trial proceed in that way, having indicated to the parties that I would provide my reasons for doing so today. This judgment constitutes those reasons.

3. I considered it important that this judgment be delivered urgently, so that, if the unsuccessful party wished to appeal to the Court of Criminal Appeal, that could occur without the trial being unduly disrupted. As a result of that urgency, this judgment is concise.

4. The relevant legislation is s 132 of the Criminal Procedure Act 1986 (NSW) (the Act), which is as follows:

132 Orders for trial by Judge alone

(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers 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.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b) the risk of those acts occurring may not reasonably be mitigated by other means.

[emphasis added]

5. The application was filed on 23 August 2016. Accordingly, the question of leave pursuant to s 132A(1) of the Act does not arise.

6. As well as that, I am satisfied that the applicant has received advice about the application from an Australian lawyer.

7. The Crown opposed the application. It follows that, pursuant to s 132(4) of the Act, the question for my evaluation is whether it would be “in the interests of justice” for the trial to proceed without a jury.

8. An affidavit of the solicitor for the accused filed 16 September 2016 was read in support of the application. The Notice of Prosecution Case of 29 July 2016 was also relied upon by the accused, my understanding being that that was a convenient way for the expected Crown case to be placed before me.

9. Although the Crown did not tender evidence on the application, from the Bar table I was informed that evidence from the witness to whom I have referred and will refer by the pseudonym of Ms Susan Hartman would no longer be part of the Crown case.

Background

10. The context of this application is to be found very largely in my judgment of 18 December 2015: see R v Adams [2015] NSWSC 1960. I shall not repeat that judgment to any extent; the brevity of this judgment is a function of my assumption of familiarity with my earlier judgment on the part of the reader.

11. In summary, my earlier judgment resolved two objections. The first was with regard to a number of hairs said to have been found many years ago in the boot of the car of the accused. They are said to have an identical mitochondrial DNA profile to that of the deceased. I rejected the proposition that that evidence should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW).

12. Secondly, I also rejected the proposition that evidence of sexually and physically violent assaults alleged to have been committed by the accused on a number of young women many years ago did not pass the test of admissibility of tendency evidence. As can be seen from my earlier judgment, at trial the Crown proposes to rely upon that evidence to ask the tribunal of fact to infer that, in accordance with his tendency in the late 1970s and early 1980s to strangle young women (whom he had met in bars and other places) in order to force them to engage in sexual intercourse with him, the applicant had inflicted the same violence upon the deceased (a young woman whom he had met in the evening of 23 September 1983), thereby murdering her.

13. The Crown case will be that, when alone with the deceased – another young woman whom he had met one evening in a bar on the Lower North Shore of Sydney – one can infer that he strangled her in order to force her to engage in sexual intercourse with him against her will, but on this occasion he killed her. The Crown case is that, thereafter, he disposed of her body, and the hairs found in the boot of his car permit one to infer that he stored her body in the boot for a time, in order to facilitate that disposal.

Submissions of the accused

14. Counsel who will be junior at the trial made submissions in the absence of his leader in the interests of expediting the resolution of this interlocutory question. Both in writing and orally, he submitted that the application has four discrete bases, the combined force of which, he submitted, would lead me to conclude that it is in the interests of justice for there to be a trial by judge alone.

15. The first basis was the proposition that a trial by judge alone would be quicker and cheaper than a trial by jury, for the simple reason that it is notorious that the latter is slower than the former. He also invited my attention to the affidavit of his instructing solicitor, which suggests that, if the trial were extended or needed to be recommenced, the accused would be without funds, and there could be significant disruption as a result. Although counsel accepted that the circumstances here were not nearly as powerful as those that played a part in the determination of McCallum J in R v Gittany [2013] NSWSC 1503 – indeed, he explicitly accepted that this is “not a Gittany case” – nevertheless, he submitted that those factors have some role to play.

16. Secondly, he submitted that the mitochondrial DNA evidence will be the subject of dispute, and may well call for a tribunal of fact to resolve difficult questions of expert scientific opinion. As well as that, noting the break of many years in the chain of custody with regard to the hair (a break conceded by the Crown), he submitted that there could well be scientific evidence about possible degradation or alteration of the sample. In short, he submitted that the likelihood of the tribunal of fact needing to resolve complex scientific evidence militates in favour of trial by judge alone.

17. Thirdly, he submitted that the Crown case will feature a central “trial” with regard to the events surrounding the alleged murder. But it will also feature three other “mini-trials”, with regard to each of the alleged sexually violent incidents that is relied upon by the Crown as tendency evidence. Referring to the line of authority derived from HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16, and culminating most recently in R v Matonwal & Amood [2016] NSWCCA 165 at [92], he submitted that each of those “tendency allegations” would need to be proven beyond reasonable doubt before it could be used by a jury in aid of a verdict of guilty of murder. That will in turn require, he submitted, very many directions, not only about the murder, but also about each of the tendency allegations.

18. As well as that, he invited attention to the fact that the murder is said to have occurred in the early 1980s, and the tendency events are said to have occurred even earlier. All of that, he submitted, will call for directions reflecting the age of the allegations; by way of example, he pointed to s 165B of the Evidence Act.

19. In short, in the unusual circumstances of this case, he submitted that a vast number of directions will need to be given by me to a jury, and comprehension on its part may suffer as a result.

20. Fourthly and finally, relying upon what I said in my earlier judgment at [134]-[135]; [152]-[155]; and [159], he submitted that the course of the trial may be summarised as follows.

21. The jury will hear the primary allegation that the accused inveigled an intoxicated young woman into his car, sexually assaulted her, strangled her to death, and heartlessly disposed of her body. But the jury will also hear far more: namely, that on three separate occasions he allegedly inflicted severe sexual violence upon other defenceless young women.

22. Counsel accepted that directions could be given as to the proper use of those other allegations. He also accepted that the criminal justice system proceeds on the assumption that, speaking generally, juries obey the directions of trial judges. Nevertheless, he submitted that there comes a point when evidence is so overwhelmingly prejudicial that that general expectation about the intellectual honesty and conscientiousness of jurors no longer holds.

23. In short, he submitted that one can infer that here the mind of more than one juror will be so clouded by an emotional reaction to the prosecution case – bearing in mind the multiplicity of alleged victims, the brutality of the repeated alleged acts of violence, their sexual flavour, and the fact that the count is murder – that, in order to avoid that unfair prejudice, the question of the guilt or lack thereof of the accused should be determined by a judge and not a jury.

24. As I have said, counsel concluded by submitting that it is not a case of assessing each factor individually, but rather assessing their cumulative force in combination.

Submissions of the Crown

25. Senior counsel for the Crown submitted that the first three factors relied upon by counsel for the accused are of no great moment, whether analysed individually or in combination.

26. First, he accepted that the factors of speed and efficiency of the trial has some role to play, albeit a very limited one, in my ultimate evaluation. The potential financial difficulties as revealed in the affidavit of the solicitor for the accused are, he submitted, in the scheme of things neither here nor there.

27. Secondly, as for the asserted difficulty about expert evidence, he submitted that juries are constantly called upon to assess quite complicated expert evidence in criminal trials, such as DNA evidence, autopsy results, ballistic evidence, and the like. He submitted that the strengths and weaknesses of mitochondrial DNA said to be obtained from hair that was allegedly seized by police over 30 years ago can be readily explained by experts, readily addressed upon by counsel, and readily understood by a jury.

28. Thirdly, as for the asserted multiplicity of directions, he submitted that, in truth, there is nothing particularly complex about the facts of this case, nor about the influential reasoning that the Crown will ask the jury to undertake, nor about the directions that would need to be given by me as a result.

29. Fourthly and finally, he accepted that the evidence in the Crown case may cause an emotional reaction on the part of one or more jurors. Indeed, as I recorded in my first judgment at [121], at the hearing about the admission of tendency evidence the Crown accepted the proposition that the evidence would be prejudicial. But he invited me to the proposition that juries are commonly called upon to determine far more horrific allegations; for example, mass murder. And, he submitted, the foundational assumption of the criminal justice system that, even in such circumstances, jurors undertake their duty as judges of the facts conscientiously must be given full weight by me.

30. In short, he submitted that there was no basis upon which I would find that it is in the interests of justice that the usual mode of trial be displaced in these proceedings.

Relevant legal principles

31. In light of the exigencies of the matter, I shall not set out a detailed discussion of the principles that apply to applications such as this. Suffice to say that, since the statute permitting trials by judge alone of State offences was substantially amended in 2011, there has been a deal of elucidation of the meaning of “the interests of justice” in this context, both by judges at first instance and the New South Wales Court of Criminal Appeal. There is also some assistance to be gained from the decisions of other courts of criminal appeal within Australia, and from the High Court of Australia.

32. I have taken the following broad principles into account.

33. First, there is not a “default” position” of trial by jury: see R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [96] (although McClellan CJ at CL was in the minority on this point, his approach has subsequently been endorsed by the New South Wales Court of Criminal Appeal in RKF v The Queen [2016] NSWCCA 116 at [39]).

34. Secondly, and on the other hand, the accused bears what has been described as an “evidentiary onus” with regard to an application for trial by judge alone: see Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [57]; and Redman v R [2015] NSWCCA 110 at [13].

35. Thirdly, there has been some controversy about whether proof of an intention calls for the application of a community standard, and therefore should be regarded as broadly analogous to the matters enumerated in s 132(5) of the Act: see in favour of the proposition: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [95]; and R v Stanley [2013] NSWCCA 124 at [56]-[59]; see against the proposition: R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729 at [73]-[77]; and R v Dean [2013] NSWSC 661 at [57]-[58]. Without delving deeply into that controversy, I prefer the view expressed by Hamill J in R v Simmons; R v Moore (No 4) at [65] that it does not.

36. Fourthly, it is true that impecuniosity and resultant lack of representation played a role in the decision of McCallum J in R v Gittany. Having said that, that factor has not been given prominence in other decisions at first instance, or in the New South Wales Court of Criminal Appeal.

37. Fifthly, the fact that the tribunal of fact will be called upon to resolve complex scientific evidence may argue in favour of a judge alone trial: see R v Belghar at [112]; Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72 at [53].

38. Sixthly, on the one hand, trial by jury has its well-known advantages, which have been famous for centuries. On the other hand, in some circumstances a reasoned judgment, as opposed to an inscrutable verdict of either one word or two, can be desirable: see R v Belghar at [112].

39. Seventhly and finally, the fact that an accused person facing an extremely serious charge is advisedly prepared to forego the protections that trial by jury afford him or her is a relevant factor: see R v Belghar at [99]; R v Simmons; R v Moore (No 4) at [58]-[60].

Determination

40. Turning to my determination, I respectfully think that the first three factors relied upon by the accused have very little weight, whether considered individually or by way of their cumulative force. I say that for the following reasons.

41. First, as for the greater efficiency of trial by judge alone, I believe that, if this trial proceeded with a jury, it would do so steadily and efficiently with the benefit of two counsel highly experienced in criminal law. And whether a murder trial takes a few weeks more or a few weeks less is, to my mind, of little importance in the assessment of the interests of justice.

42. Secondly, as to the asserted financial problems of the accused, the evidence is that he will be able to be represented for the entirety of the trial. Possible financial problems that could arise if there were a discharge of the jury or a re-trial are so remote as to be virtually irrelevant.

43. Thirdly, as for jury comprehension of expert evidence, I am confident that, so long as the evidence is properly presented and explained (both by expert witnesses and by counsel in their addresses) there will be no difficulty in comprehension. I also have a more general confidence that lay people are well able to understand complicated scientific matters, so long as they are explained appropriately.

44. Fourthly, as for the alleged multiplicity of directions, it is true that the proceedings may well be a primary dispute about what the accused allegedly did to the deceased, with a number of satellite disputes about what the accused allegedly did to other women. But I do not accept that the necessary directions will present a difficulty to the jury, whether conceptually or by way of their sheer quantity. Certainly, the potential directions posited by counsel for the accused in his written submissions at paras 24 to 26 are, to my mind, unremarkable.

45. In short, each of those individual factors considered separately argues only very weakly for trial by judge alone. Even when taken in combination, the most that can be said is that they argue weakly for that alternative.

46. That leaves the question of potential prejudice to the accused by way of the combined effect of what the Crown alleges about the murder of the deceased, and what the Crown alleges about the conduct of the accused towards three other young women.

47. I respectfully think that this factor is in a very different category.

48. As can be seen from my first judgment, I accepted that the tendency evidence foreshadowed would give rise to a very significant possibility of prejudice on the part of a jury: see in particular at [159]. And although I expressed myself in terms of “a very real possibility of significant prejudice”, I did so because that reflected the statutory test then under consideration by me.

40. To be clear about my previous phraseology: I do not consider that prejudice against the accused in the circumstances of this case is a possibility; I regard it as a virtual certainty. And I am of that view even bearing in mind that the jury will not hear of his alleged conduct towards the woman known as Ms Hartman.

41. To give but a few examples: the accused is alleged to have strangled a vulnerable and intoxicated woman aged 33 years to death in order to achieve his own sexual gratification, and thereafter stored the body in the boot like a piece of refuse requiring disposal.

42. With regard to the woman known as Ms Hyde, then aged 28 years, after inveigling her into his home on a pretext, he allegedly strangled her to the extent that she struggled to breathe. Thereafter, without her consent, he had penile/vaginal intercourse with her, forced her to perform oral sex on him, and attempted to have penile/anal intercourse with her. He allegedly did all of that although she had informed him that she had recently undergone an abortion and was experiencing bleeding as a result.

43. With regard to Ms Moon, then aged 32 years, he allegedly inveigled her into his car late one evening. Thereafter he allegedly threatened to choke her, and duly applied pressure to her throat. He also allegedly insisted that she have sexual intercourse with him whilst alive, otherwise he would murder her, and thereafter have sexual intercourse with her dead body. Ultimately, he allegedly had penile/vaginal intercourse with her without her consent.

44. With regard to Ms Brown, then aged 20 years, he allegedly inveigled her into his motor vehicle and drove to an isolated spot where she was defenceless. He allegedly strangled her to the point where she was in fear of death. Thereafter he allegedly had penile/vaginal intercourse with her without her consent. After that, she was allegedly held captive by the accused at a suburban home for a period of some hours, during which she was allegedly repeatedly sexually assaulted.

45. That very short summary of the most deplorable aspects of the alleged behaviour of the accused shows why I consider that any jury would have great difficulty in analysing the tendency evidence calmly and objectively. And it must be borne in mind that the jury will be hearing that evidence in the context of a primary allegation not only of further sexual violence, but also one of murder.

46. It is undoubtedly true that the criminal justice system proceeds on the assumption that juries obey direction about all manner of things, including pre-trial publicity, information on the internet, the exercise of the right to silence, and the criminal standard of proof. But as Gleeson CJ and Gummow J said in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], there must also be recognition that that rule is not an absolute one. There, their Honours said:

[13] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

56. Furthermore, for over a century both the common law and Parliament have accepted the proposition that juries will not always analyse probative evidence without emotion: the common law by way of the discretion first identified in R v Christie [1914] AC 545; (1914) 10 Cr App R 141, and Parliament by way of the analogous evaluative judgment contained in s 137 of the Evidence Act.

57. In short, I am satisfied that the Crown case, taken as a whole, will inevitably lead to a prejudicial reaction against the accused on the part of a jury. By that I mean, I am certainly satisfied that it will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to analyse the evidence against the accused dispassionately, objectively, and judicially.

58. Indeed, I consider that members of a jury would recoil in dismay and abhorrence when they hear the details of the many things the accused is alleged to have done to four separate women. That compelling factor leads me to the view that it is in the interests of justice for this trial to proceed by judge alone.

Order

59. It is for those reasons that I made the following order on Friday 23 September 2016:

1. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), I order that the accused be tried by judge alone.

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Decision last updated: 26 September 2016