R v Bell (No 2) - [2023] SADC 19

District Court of South Australia
(Criminal)
R v BELL (NO. 2)
[2023] SADC 19
Reasons for Ruling of his Honour Judge Stretton
28 February 2023
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
The accused has applied to revoke his February 2020 election to be tried by judge alone on the basis of subsequently becoming aware of new material which he submits would be better ventilated before a jury.
Held: The test is whether the ‘forensic landscape of the trial’ has changed such that had the accused known the new information he would not have made the original election. On balance the test is satisfied and consequently the accused is authorised to revoke his election.
Juries Act 1927 (SA) ss 6, 7; Joint Criminal Rules 2022 (SA) r 94, referred to.
R v Gavare [2011] SASCFC 38, discussed.
R v Bell [2020] SADC 107; Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116; R v Bell [2022] SADC 140; R v Pacitti [2022] SASCA 108; R v Hall [2021] SASCFC 16; White v South Australia (2007) 96 SASR 581; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531; Goldsmith v Newman (1992) 59 SASR 404; R v Perry (1993) 29 NSWLR 589; AK v WA [2008] CLR 438, considered.

R v BELL (NO. 2)
[2023] SADC 19

This is an application by the accused to revoke the election he made pursuant to section 7 of the Juries Act 1927 and rule 94 of the Joint Criminal Rules 2022, for trial by judge alone. That election was made on 19 February 2020.
The charges
The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s (‘SEETA’) money without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[1]
[1] Information dated 9 October 2018.
The trial is listed to commence on 14 March 2023.
The prosecution case
The prosecution say they will allege at trial that the charges arise from the accused’s involvement with a sub-campus of the Millicent High School known as the Independent Learning Centre (‘ILC’). They will allege at trial that the accused ran the Independent Learning Centre as if it was his personal business, although the funding for it was provided by Millicent High School. They will allege that the accused invoiced Millicent High School in advance for services provided at the Independent Learning Centre, but overcharged for them, and will allege that he used funding earmarked for intended student purposes for his own personal use.[2]
[2] Per DPP written submissions paragraph 6, ‘Brief Overview of the Prosecution Case’.
Brief procedural history
As set out in prior rulings, the matter has a long procedural history, and the court has regard to the full history of the matter, without setting it all out. Much of the history is traversed in an earlier judgment of the District Court dismissing an initial application for a stay,[3] a subsequent appeal and reservation of questions of law to the Full Court,[4] and a recent judgment of the District Court dealing with a further application for a stay and related issues.[5]
[3]     R v Bell [2020] SADC 107.
[4]     Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116.
[5]     R v Bell [2022] SADC 140.
As summarized in those decisions, the offending is alleged to have occurred through a series of events between 2009 and 2013, with the Independent Commissioner Against Corruption (‘the ICAC’) commencing an investigation in 2014. In May 2017 the ICAC forwarded the matter to the DPP who decided to prosecute, filing an Information in the Magistrates Court in August 2017. The matter was committed to the District Court for trial, the DPP filing the current Information in October 2018.[6]
[6] Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 1-7.
An October 2019 trial date was vacated on 4 July 2019 due to the accused’s then counsel’s ill health, and for the accused’s current counsel to prepare the matter and be available for trial.
On 19 February 2020 the accused elected, pursuant to s 7 of the Juries Act 1927 and r 94 of the Joint Criminal Rules 2022, for trial by judge alone.
The new trial date of 8 July 2020 was vacated to allow a prior application for a stay filed by the accused on 1 June 2020 to be argued.
On 7 August 2020 the District Court delivered judgment declining to order a stay but finding that some of the ICAC’s actions had not been authorized by the ICAC Act.[7] The accused appealed the decision, and a question of law concerning the powers and functions of the ICAC was also reserved for the consideration of the Full Court.[8]
[7] R v Bell [2020] SADC 107.
[8] Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 8-12.
On 3 December 2020 the Full Court delivered judgment.[9]
[9] Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116.
The Full Court judgment was followed by an application by the accused for special leave to appeal to the High Court.
The High Court proceedings concluded on 15 March 2022 upon an undertaking given by the DPP to the High Court as to certain matters, after which leave to appeal was rescinded.[10]
[10] [2022] HCA Trans 30, prs 17-18.
Further defence applications to stay proceedings were then made to this court culminating in rulings as to the meaning and effect of the DPP undertaking to the High Court, certain ICAC transitional provisions, adequacy of prosecutorial disclosure, whether proceedings were an abuse of process, and whether consequently the accused could have a fair trial. Rulings as to those matters were delivered on 29 November 2022 in R v Bell [2022] SADC 140. The applications were unsuccessful, and a defence request to refer questions of law to the Court of Appeal was unsuccessful.
On 24 January 2023, approximately 7 weeks ahead of the 14 March 2023 trial date, the accused made the current application to revoke his election to be tried by judge alone.
The application
The application is made ‘on the grounds set out in the accompanying affidavit’ of the accused’s solicitor, Ms Shaw.[11]
[11] Interlocutory application, filed on 24 January 2023.
The accompanying affidavit of Ms Shaw dated 23 January 2023 deposed that subsequent to the accused’s 19 February 2020 election for trial by judge alone, the defence had become aware of further facts and materials giving rise to topics ‘that would be better ventilated before a jury’, and that ‘in the circumstances I am instructed that had my client been in possession of certain (sic) of the information and documents disclosed and produced since his election on February 2020, he would not have elected for trial by judge alone and so am instructed now to seek the Court’s permission to revoke trial by judge alone, which was filed on 19 February 2020’.
The application was opposed by the prosecution on the grounds that to permit the application may give the potential of an appearance of forum shopping, that the material filed in support was in part inadmissible and/or inaccurate, and that the material established neither special reasons to revoke the election nor that it would be unjust not to do so.[12]
[12] Outline of Argument In Response To Application to Revoke Election For Trial By Judge Alone, filed 3 February 2023, para 2.
The evidence
At the outset, on 2 and 3 February 2023 both the accused and the prosecution filed outlines of argument joining issue on the above basis. Each party was accordingly well aware of the other side’s stance prior to the commencement of the hearing.
The hearing ran for three days, over 3, 6 and 10 February, with a schedule for further written submissions to be submitted by 20 February.
The accused and the prosecution have filed extensive affidavit material on this application, and have provided very comprehensive oral and written submissions. The court has carefully considered it all, but in all the circumstances, and considering the imminent trial date, will not set the material out in any detail.
Ms Shaw’s affidavit deposes that in June 2020 the defence were provided information as to certain legal issues and factual material in relation to a material prosecution witness, including a supplementary statement from that witness.[13]
[13] Affidavit of Ms Shaw dated 23 January 2023 paras 3-8.
Ms Shaw’s affidavit deposes that further prosecution disclosure was made between 29 May 2020 and 3 August 2020,[14] and that at around the same time the defence elected to subpoena and accordingly received further material from both the Department of Education and the ICAC.[15]
[14] Affidavit of Ms Shaw dated 23 January 2023 paras 9-11.
[15] Affidavit of Ms Shaw dated 23 January 2023 paras 12-15.
The accused filed an affidavit indicating that at the time he had made his election for trial by judge alone he had understood that all material relevant to his decision to elect had been disclosed. The accused deposed that with reference to his solicitors’ affidavits and a schedule they had provided containing material relevant to disclosures and subpoenaed material, and adverting to that material, all of which had been provided in 2020, had he been in possession of that material he would not have elected for trial by judge alone.
The accused deposed that (although all of that material was provided in 2020) he was advised by his lawyers of his right to apply to revoke his election for trial by judge alone on or about 20 December 2022.[16]
[16] Affidavit of the accused dated 27 January 2023 para 27.
The accused’s trial counsel refer to the accused’s affidavits deposing that he was advised by his lawyers of his right to apply to revoke his election for trial by judge alone on or about 20 December 2022.[17]
[17] Written submissions by Ms Shaw KC and Mr S Joyce, para 37, lines 3-7.
Ms Shaw’s affidavit makes no reference to the topic of any advice to the accused concerning his right to apply to revoke his election.
Substantive submissions
Both the accused and the prosecution made extensive submissions, including the provision of detailed initial written submissions, and schedules wherein each party advanced itemised submissions concerning the prominence/relevance/importance or otherwise of the material disclosed in 2020 after the February 2020 election.
Mrs Shaw KC’s oral submissions on behalf of the accused took up all three of the available days of hearing time yet remained uncompleted.
Accordingly, by agreement between counsel, Mrs Shaw completed her oral submissions on behalf of the accused with further written submissions, the prosecution’s oral submissions were then made by way of further written submissions, and written submissions in reply were provided on behalf of the accused.
The law
Section 6 of the Juries Act 1927 creates a presumption that a criminal trial in the District Court will in the ordinary course be trial by jury.
Section 7 of the Juries Act 1927 provides that the accused may elect to be tried by judge alone in accordance with the rules of court.
Rule 94.5 of the Joint Criminal Rules 2022 (SA) provides that any election must be made by the first arraignment in the District Court or within such time as the court on the first arraignment orders, although, per r 94.2, that time may be extended if the court is satisfied that there are special reasons for doing so or that it would be unjust not to do so.
Rule 94.4 of the Joint Criminal Rules 2022 (SA) provides that an election for trial by judge alone is irrevocable. The rule goes on to provide that the court may however grant leave to revoke a trial by judge alone election if satisfied that there are special reasons for doing so, or that it would be unjust not to do so notwithstanding that the time for election has expired.
Rule 94.5(2) provides that a revised Information will not be a basis for a late election unless there is a new trial or there are special reasons for doing so, or that it would be unjust not to do so.
Rule 94.6 of the Joint Criminal Rules 2022 (SA) provides that after a mistrial, or a jury has been unable to reach a verdict, or if an appeal against conviction has been allowed and the accused has been remanded for a new trial, the mode of trial may be revisited. Within 28 days, if that trial was by jury the accused may elect for trial by judge alone, or if that trial was a trial by judge alone the accused may revoke the election.[18]
[18] R v Pacitti [2022] SASCA 108, at [15]. This provision was formerly contained in the Juries Rules 1996.
The test to determine whether a revocation of election should be allowed pursuant to r 94.4 is accordingly whether there are special reasons for allowing the election for trial by judge alone to be revoked or that it would be unjust not to do so.
The proper scope and exercise of a discretion such as this must depend on the common law and statutory context in which it is placed, together with the proper purposes it is intended to serve.[19]
[19] R v Pacitti [2022] SASCA 108, per Livesey P at [36].
A change in ‘the forensic landscape of a trial’ may, depending on all the relevant circumstances of a case, warrant a favourable exercise of a court’s discretion.[20] Whether it does will require a consideration of several matters including the significance of the change, and the extent to which that change was a matter that might be said to be within the scope of potential forensic developments that the accused’s legal advisers might reasonably have contemplated at the time of the original election, recognising that the election will ordinarily occur prior to first arraignment and prior to any pre-trial rulings on evidence, and so some level of change in the forensic landscape must be within the accused’s contemplation at the time of election.[21]
[20] R v Hall [2021] SASCFC 16.
[21] R v Hall [2021] SASCFC 16, per Doyle J at [115]-[117].
In R v Gavare, the Supreme Court considered the statutory criteria and discussed the appropriate approach:
The discretion of the court to dispense with compliance with the requirements of the rules or to extend time are both conditioned on the court being satisfied that either there is special reasons for so doing, or that it would be unjust not to do so. The fact that the discretion is conditioned on the above alternatives would suggest that rules were designed to facilitate an extension in an appropriate case. The use of the phrase “would be unjust not to do so” is designed, it might be suggested, to enable the court to act in a wide variety of circumstances. As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.
Much has been said about the concept denoted by the expression “special reasons”. It amounts to reasons that are out of the ordinary, something that is distinct or peculiar about the case.[22] It is something that exceeds, in some way, that which is usual or common.[23] It has also been said that the phrase denotes that the discretion that it constrains is not lightly to be enlivened.[24] However, what will amount to special reasons is to be interpreted in the context in which the term is used; the expression takes its colour from the context in which it is found. As King CJ in Goldsmith v Newman observed:[25]
The expression "special reasons" is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve. I do not think that much, if any, assistance can be gained from the interpretation of the expression where it is used in other contexts.
As discussed above, one matter of concern is for the court to consider whether its processes are being abused – for example, by what is loosely described as “judge-shopping”. Another matter of concern is for the court to understand why the proposed election was not made at or before the time of the first arraignment.
In the present proceeding, following the expiration of the time for election, circumstances relevant to an election occurred. Had these circumstances occurred prior to the expiration of the time for election, Ms Gavare would have elected for trial by judge alone. This was the explanation proffered by Ms Gavare to support her application for an extension of time. This would appear to provide an explanation that would render it unjust not to extend time. The same would appear to apply with respect to “later acquired knowledge”. Why should a defendant be denied a substantive right of election because of the fortuity that circumstances relevant to a decision to elect occurred after the time for election had expired, or that information relevant to a decision to election was not available at or before the first arraignment. To deny the defendant the right of election in this circumstance, would, in my view, be unjust.[26]
[22] White v South Australia (2007) 96 SASR 581, [48]-[49].
[23] White v South Australia (2007) 96 SASR 581, [98] see also Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238, [243]-[244].
[24] Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531, [18].
[25] Goldsmith v Newman (1992) 59 SASR 404, 409.
[26] R v Gavare [2011] SASCFC 38.
The primary issue
As discussed by Doyle J in R v Hall, the primary issue is whether the accused has established that there has been a ‘change in the forensic landscape of the trial’ such that there are special reasons to allow the revocation or that it would be unjust not to allow the revocation, considering all the issues including the significance of the change, and the extent to which that change was a matter that might be said to be within the scope of potential forensic developments that the accused’s legal advisers might reasonably have contemplated at the time of the original election, recognising that the election will ordinarily occur prior to first arraignment and prior to any pre-trial rulings on evidence, and so some level of change in the forensic landscape must be within the accused’s contemplation at the time of election.[27]
[27] R v Hall [2021] SASCFC 16, per Doyle J at [115]-[117].
The other issue which has been raised by the prosecution is, as discussed by Gleeson CJ in R v Perry[28] and the court in R v Gavare,[29] whether the accused’s application is ‘genuine’, i.e., for the stated reasons, or would allowing the application constitute, or give the appearance of constituting, judge/forum shopping, and in that sense, reflect an abuse of process or give the appearance of an abuse of process. The prosecution has submitted that the timing of the application in the totality of the circumstances is such that that issue plainly arises, and that the court should not find that the accused has dispelled the appearance of judge shopping, and should consequently reject the application in any event.
[28] R v Perry (1993) 29 NSWLR 589 at [594].
[29] R v Gavare [2011] SASCFC 38 at [31]; South Australia, Parliamentary Debates, Legislative Council, 13 September 1984, 837 (The Hon CJ Sumner (AG); South Australia, Parliamentary Debates, Legislative Council, 19 September 1984, 955 (The Hon CJ Sumner (AG)).
Has the forensic landscape changed?

In the accused’s affidavit and initial written submissions several matters are raised. Those matters were augmented and amplified in the subsequent oral and written materials. Whilst the primary matters and the respective arguments will be described in brief terms, the court has considered the matters and arguments in full notwithstanding they are not fully set out. To repeat, not all of counsels’ extensive submissions have been set out, but they have all been considered.
Further, the court is mindful that it will only consider the material cited and advanced by respective counsel for the purposes of the current application, not all the evidence to be called in the trial, and is mindful that any conclusions or impressions to be formed at this time be limited and for the purposes of resolving this application only, and that the court must be careful to, and will, keep a completely open mind for the subsequent trial.
A brief overview of the matters raised follows. The accused states that had he known these things at the time of his election, he would not have elected to be tried by judge alone.
Firstly, that a witness who will be described as F, who is said to form an important part of the prosecution case, was under investigation and prosecution for unrelated offending at the time his evidence was being sought in the accused’s matter, which such prosecution of witness F was ultimately dropped when the DPP determined there was no reasonable prospect of conviction due to police being unable to obtain relevant technical evidence for that unrelated matter. Further, that witness F was given an indemnity from prosecution in relation to the offences with which the accused was charged. After both those events, the witness provided a signed witness statement against the accused. Although it is not overtly stated in the affidavit or the initial written submissions, the inference is that this material is relevant to the credibility and reliability of F’s evidence against the accused.
The accused expanded on the significance of this material concerning witness F in his further written and oral submissions, submitting that by these circumstances witness F, in effect, may have felt an inducement to co-operate with the police in the hope that the unrelated charge would be withdrawn.
The prosecution points out that the statement, whilst ultimately signed in June 2020, was based on evidence that F had given much earlier under privilege that was disclosed to the accused in 2017. The prosecution submits that whether witness F felt under pressure to sign his statement is speculative.
The accused submits that the unrelated prosecution and the current indemnity against prosecution are matters relevant to witness F’s credibility and reliability. The accused submits they are important because witness F’s credibility and reliability are in issue, insofar as witness F claims that he never saw and had no idea who issued 3 separate invoices[30] concerning large amounts of money, in a context where the prosecution case is that the accused was alleged to have prepared false invoices as a part of his allegedly dishonest scheme to commit the charged offences.
[30] Referred to as ‘the first matter’, ‘the second matter’ and ‘the third matter’; relating to witness F in Second Written Submissions of the Accused on Application to Revoke His Election for Trial by Judge Alone.
The accused also submits that in witness F’s June 2020 statement he, for the first time, says he portrayed himself to the accused as not competent to be treasurer of the relevant entities, which the accused laughed off before appointing him anyway. The accused submits this is inconsistent with witness F’s 2016 evidence to the effect that he thought he was at least partly competent to do the job.
Secondly, that a witness who will be described as PD had given a 2015 statement which had been in the possession of and was subsequently recovered from the Education Department, which explained the flexibility of the rules relating to Flexible Learning Options (‘FLO’) programs and that they were in effect guidelines. The accused did not get this statement until after his election. The accused submits that the statement puts the status of the guidelines into context. The prosecution case is that the accused exploited the system, in part because of the flexibility of the guidelines. The prosecution submit that such alleged flexibility has always been a part of the prosecution case and that this represents no change in the case’s forensic landscape.
Thirdly, that an addendum statement of a witness who will be described as CD has been provided in which he deposes to, amongst other things, his understanding of the role performed by him and the prosecution witness, RS. The accused says the addendum statement sets out that witness CD said he understood that the accused was manager of the ILC which gave him the same rights as a principal and accordingly, when the accused sent Millicent High School an invoice from ILC, he considered it authorised and he would just pay it without any question. He would also deliver it. He contrasted that to the process for invoices relating to Millicent Community Learning Centre (‘MCLC’), which if received would go to the finance manager. Amongst other things, the accused says this differs from the draft prosecution opening in which it is said that ‘… the day to day signing of the cheques was authorised by (witness CD). (CD)’s oversight appears to have been ineffectual. He was regularly authoring cheques in large sums which were in excess of the school’s proper financial delegation limits and without sight of any original invoices’. The accused argues that this addendum statement goes further than previously understood, in implicating the accused as the decision maker in securing the payments from MHS.
Further, there is a ‘second matter’ concerning witness CD, where the prosecution draft opening had outlined that the accused had liaised with witness CD to the effect that Limestone Coast Education and Training Association (‘LCETA’) would shortly invoice $50,000 for a series of school improvements, which was then issued by the accused to MHS, and CD authorised the cheque. Witness CD’s new addendum statement provides surrounding detail of contact with the accused at the time, and that although the accused’s email concerning the $50,000 had mentioned tabling receipts for work done, CD never saw any receipts.
Fourthly, that an addendum statement was provided by a witness who will be described as FH. The accused argues that in the prosecution draft opening it was put that on 22/2/10, and while SEETA had no independent bookkeeper or treasurer, $152,392 was transferred from SEETA investment account to SEETA ILC operating bank account, and that on 12/3/10 the accused employed ‘a relatively inexperienced bookkeeper (FH) to manage LCETA accounts meaning they were unscrutinised by an independent bookkeeper for 5 months from October 2009 to March 2010,’ during which time frame certain funds were moved. In the addendum statement, witness FH says she started in late 2009 or early 2010, and received some training from a previous bookkeeper Shanahan. The accused submits inter alia that this supports the defence in that it is to the affect that the entities were not without an independent bookkeeper. The prosecution submits that the defence were already in possession of FH’s earlier 2016 evidence as to this, and accordingly, the forensic landscape did not alter in this respect.
The accused submits as a ‘second matter’ that para 10 of witness FH’s addendum statement attesting to her vague understanding of ILC, and that she was just there to do bookkeeper work, is inconsistent with para 153 of the prosecution draft opening, but such inconsistency is not entirely clear.
The accused submits as a ‘third matter’, that paras 27 and 28 of witness FH’s addendum statement are to the effect that the only money she could recall being paid back into LCETA expenses account from the LCETA investment account was money she asked the accused for to pay wages and other expenses, and that she did not recall any funds in relation to interest earned being paid from the LCETA investment account into the LCETA expenses account. The accused submits this bears on the critical issue of dishonesty, and is inconsistent with FH’s 2016 interview and FH’s earlier statements. However the cited extracts, somewhat garbled, seem to address other issues such as money offset against a home loan, that she did not think the accused was doing anything wrong at the time, that some accounts were reconciled in an unspecified way, and that she may be able to ‘sort of remember’ a suggested sum being put back into the LCETA expenses account. The prosecution submits the new statement at most represents a minor clarification of FH’s evidence in relation to the specific matters mentioned.
The accused submits as a ‘fourth matter’ that para 28 of witness FH’s addendum statement that the only money she saw coming back into the LCETA expenses account from the LCETA investment account was money she asked the accused for to pay wages and other expenses was in contrast to her 2016 interview where she said that ‘… I would record the movement of funds from the NAB LCETA bank account by way of making an entry’. This is not in itself at first blush inconsistent, and the prosecution observes that at pages 69 and 71 of the 2016 interview of witness FH gave a similar explanation of how funds would come into the account.
Fifthly, that an addendum statement was provided by a witness who will be described as ES. Whereas in a 2016 statement ES had said that there was no ‘mark-up’ placed on the expenses associated with operating the ILC by SEETA when these expenses were on-billed and invoiced to Millicent High School, the new addendum statement said that ES may have discussed with the accused charging a ‘buffer’ of 20% to cover delays in recovering invoiced monies, as well as a 20% ‘buffer’ above estimated wage costs to cover superannuation, Workcover and possible leave loading. She said any unspent funds were recorded as a carryover to the next year. This does appear to be a clear change in the evidence of this witness. The prosecution argues that allegations of charging and markups have always been part of the prosecution case.
The accused submits as a ‘second matter’, that witness ES in the addendum statement talks about a Mind Your Own Business (‘MYOB’) generated profit and loss statement for SEETA for July 2008 through May 2009 showing a net profit of $135,170, whereas that did not mean that amount of cash was in its account as it was an accrual calculation only and does not account for any unpaid invoices or liabilities, therefore the statement by the accused to SEETA ‘indicating that ILC had $135,170 in their account is incorrect but if someone does not know how to read profit and loss statements this is a common error…’ The accused submits this is relevant new information. The prosecution submits there are no inconsistencies in this material.
The accused submits as a ‘third matter’ that witness ES stating in the addendum statement that she did the books at least until the 2008/2009 financial year, notified the accused that he would need to find someone probably from the end of September 2009 to take over the bookkeeping, then at some stage she could not recall assisted FH to set up MYOB accounts; was inconsistent with the calendar of events set out in the draft opening where amongst other things it was put that SEETA was without a bookkeeper and unscrutinised for a period of time before the accused employed the relatively inexperienced FH. The prosecution submits that the draft opening never purported to be exhaustive, and must be looked at in conjunction with all the material also disclosed, particularly the 2016 evidence of FH which reflected in part what ES said in her addendum statement.
The accused submits a ‘fourth matter’ in that whereas in witness ES’s 2016 affidavit she said she was not sure what happened to residual Millicent High School funds being held by SEETA for future forecasted services when it stopped providing those services, although it would seem logical they would be transferred to LCETA when they started providing the services; in her addendum statement she is shown accounts from that time and is asked to comment on them. In relation to being shown a deposit for $158,589 by SEETA into LCETA on 22 February 2010, she says she has no memory of it, nor being given any authority to do it nor being aware of it. This is seemingly not inconsistent with the 2016 statement but is new information.
The accused submits as a ‘fifth matter’ that witness ES says in her addendum statement that she recognised her handwriting on a 23 December 2009 coversheet, tending to indicate she was still doing bookkeeping for SEETA at that time, whereas in the draft prosecution opening it was asserted that SEETA were without an independent bookkeeper for five months at the relevant time. This is a potential support for the contrary proposition, at least as of 23 December 2009. The prosecution submits it was always a part of the prosecution case that ES played a part in inducting ES into the position at some stage.
Sixthly, that an addendum statement was provided by a witness who will be described as JS, the principal of Millicent High School at the relevant times. As such JS is a central witness in the case. The accused submits that in that statement the witness notes that the Governing Council had the power to employ persons, whereas the prosecution draft opening had said that allocating Innovative Community Action Network (‘ICAN’)/FLO funding according to Department of Education and Child Development (‘DECD’) guidelines is the principal’s responsibility. These appear to be addressing different issues rather than being inconsistent. The prosecution submits that in any event these powers were disclosed prior to the election per Ms Chou’s 2017 statement.
The accused submits as a ‘second matter’ that whereas witness JS says in his addendum statement that ‘initially there was not a lot of guidance with regards to FLO funding’, the draft prosecution opening said that he should have been aware of the guidelines, that JS acknowledged that his understanding of the guidelines was inadequate, and that another witness CH said that there was a tightening of the guidelines through 2013. None of these statements is seemingly materially different, as they appear to give different perspectives about the guidelines from different vantage points.
The accused submits as a ‘third matter’ that whereas witness JS says in his addendum statement that he was asked what ‘school to work strategy’ was, and he recalled it was a program that the accused was involved in at some stage, in the prosecution draft opening a payment into a bank account operated by the accused was referenced as a payment with a reference including ‘school to work strategy’. This does not appear to change or augment the prosecution case or have significant probative value.
The accused submits as a ‘fourth matter’ that whereas witness JS says in his addendum statement that in reference to his prior statement regarding LCETA taking over the ILC finances from SEETA and JS becoming part of LCETA, the accused advised him that LCETA would be less cumbersome as less people needed to approve things, and he took the accused’s advice that it was OK to change to LCETA without a tendering process, whereas the extracted passage included from witness JS’ 2016 statement seems less certain or clear. However, the additional excerpts quoted by the prosecution bring the statements somewhat closer, and the substance of what the witness JS is saying had been very clearly alleged in the previously circulated draft prosecution opening.
The accused submits as a ‘fifth matter’ that telephone intercept material had now been disclosed recording a conversation between witness JS and ILC manager DB on 15 June 2016, which disclosed that JS was under investigation at that time. The accused submits that the fact that JS was under investigation at that time is relevant to JS’ motivation to assist, and to his credibility and reliability. The transcript reveals that JS was concerned about the fact that there appeared to be an investigation and the possibility of offences. The accused also submitted that other calls were recorded, in which he amongst other things talked about whether he knew about most of the money, that he might speak to witness CD about it, and that the truth was that if he was asked if he could account for every dollar, he would have to say no. This material, amongst other things, was submitted by the accused to be relevant to the issue of whether JS was merely the accused’s puppeteer or whether monies were diverted independently by witness JS, or in innocent collaboration with him not involving any dishonesty or deceit. Whilst these transcripts do not change the overall forensic landscape, they are material available to cross examine JS and other participants in relation to those issues and the events discussed concerning the relevant entities and flow of monies.
Seventhly, that after the election an addendum statement was provided by a witness who will be described as PG. He is an auditor. The accused cites the statement as saying that at a meeting PG was shown a LCETA bank statement with a credit of $239,626 and noted ‘the loan had been repaid’ therefore PG did not query it further, whereas the prosecution draft opening says that a MYOB entry indicated the repayment had been made. The accused’s submission is that the statement proves it was repaid, contrary to the assertion in the opening. The prosecution submits that this does not represent a change in the landscape, and the evidence simply reflects that these were the explanations that the accused was giving PG.
The accused submits as a ‘second matter’ that certain matters were raised in the PG’s addendum statement concerning the preparation of the LCETA balance sheet, which were not mentioned in the draft prosecution opening. The prosecution indicates that the quote is from PG’s 2019 statement, which was in the accused’s possession at the time of the election. On that basis the accused was aware of it, and it formed part of the landscape he faced at election.
The accused submits a ‘third matter’ arose from the witness PG’s 2020 statement however the prosecution indicates that the quote is also from the witness PG’s 2019 statement, which was in the accused’s possession at the time of the election. On that basis the accused was aware of it, and it formed part of the landscape he faced at election.
Eighthly, that a statement was provided by a witness who will be described as KL. In it he says he was part of the Millicent High School governing council, and says he was aware an entity was formed to enable people to be employed and items purchased for services to be provided to FLO students. He says he was aware JS, CD and others did that to get around DECD policies, also that one of the regional directors knew. The respective roles of the people mentioned are relevant and indeed the reason for the formation of the entity is relevant, however ‘being aware’ is not necessarily admissible evidence of anything outside a witness’ direct observations, unless it might be admissible as an admission by a party or as a prior inconsistent statement of a witness in cross examination. The prosecution submits similar information was disclosed in Ms Chou’s audit report.
Consideration
So, has the forensic landscape changed?
Overall, the material discussed above does not disclose any new witnesses nor alter the particulars of the alleged offences. It does not change the way the prosecution case will be pitched.
The material discussed does in several instances reveal further allegedly incriminating facts, some material which the defence alleges supports the defence, and in the case of at least F and JS, circumstances which might enable substantive cross examination suggesting that those witnesses knew they were under scrutiny in some ways such that they may consequently have felt some inducement to implicate the accused and minimise their role in the arrangements whereby the prosecution assert the accused committed the charged crimes. F and JS are central witnesses in the case.

The case that the accused has to meet has not significantly changed, however the issue is not whether the case has fundamentally changed, it is whether the ‘forensic landscape’ faced by the accused at the time of his election has changed.
A ‘forensic landscape’ facing an accused can include, in my opinion, where the material revealed might significantly change the way an important witness is approached in cross examination, accepting that it is accepted that juries and judges are different and may react to different approaches in different ways. In short, an accused might legitimately think that the newly discovered matters he can now raise in cross examination may be more effective and convincing to a jury than a judge. There is a history of authority for that proposition.[31]
[31] AK v WA [2008] 232 CLR 438 at [470]-[478].
Overall, the issue is finely balanced, however I also have regard to the fact that a jury trial is central to the South Australian justice system, so important that it is enshrined in the Commonwealth Constitution for Commonwealth matters, and absent a contrary election it is a right that every person accused of a serious crime in this state possesses. It is a right that should not be lightly withheld.
Considering everything, in the court’s view the totality of the matters raised, in particular noting the matters raised concerning central witnesses F and JS and some items of new evidence such as with witness ES, are such that they could have decided an accused in the accused’s position not to have elected for a trial by judge alone, at the time he did elect. In that sense, the forensic landscape faced by the accused is changed by that material. The accused says that is the case.
The prosecution has raised whether in the making of the application there is an appearance of judge/forum shopping on the accused’s part and submit that the accused has not dispelled the implication of judge/forum shopping that arises from the timing and other surrounding circumstances of the application.
That would be very difficult to determine on the very limited evidence before me. The prosecution points to circumstantial evidence, and the accused has provided brief affidavit evidence to the contrary upon which he was not cross examined. The lack of cross examination is no-one’s fault, as there would be obvious issues in an accused being cross examined on oath as to the genuineness of his application prior to trial. It does however leave the court in a situation where there is very limited evidence with which to approach that issue.
At the end of the day, given that the forensic landscape, in the sense just discussed, has changed such that an accused may have genuinely preferred a jury trial in light of that change, and the accused has given evidence on oath that is the case, I am not prepared to conclude that is not the case, bearing in mind we are dealing with an important right otherwise available to the accused, trial by jury.
For all the above reasons, the court is satisfied that it would be unjust not to allow the application, and therefore the accused is authorised to revoke his election to be tried by judge alone.
Conclusion
I grant the accused leave to file a notice formally revoking his election for trial by judge alone within the next seven days.