R v GAVARE - [2011] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GAVARE
[2011] SASC 78
Reasons for Decision of The Honourable Justice Kelly
29 March 2011
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Application by accused for extension of time in which to elect for trial by judge alone - accused pleaded not guilty to charge of murder - where deceased an elderly woman allegedly murdered in her home - where newspaper articles published after the time for election referred to the murder of elderly women in their homes with one article referring to the deceased - whether time limit under the Juries Rules 1996 (SA) for election should be extended or dispensed with.
Held - application refused - although no ulterior motive or purpose behind the application, with the benefit of directions from the trial judge jurors should be expected to return a true verdict based upon evidence before them.
Juries Rules 1996 (SA) r 16 and r 17, referred to.
R v McGee and McGee (2008) 102 SASR 318; R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; R v O, LJ [2010] SASC 145, discussed.

R v GAVARE
[2011] SASC 78
Criminal

KELLY J: This is an application by the accused that the Court dispense with the time limit stipulated under the Juries Rules 1996 (SA) within which the accused may elect for a trial by judge alone. The application is brought under r 16 and r 17 of the Juries Rules 1996 (SA) which permit the Court to dispense with compliance with all or any of the requirements of the rules, or to extend or abridge any of the periods of time prescribed by the rules if satisfied that there are special reasons for doing so or that it would be unjust not to do so.
The basis for the application is to be found in four newspaper articles tendered on behalf of the accused which appeared in The Advertiser. The first is an article on 7 October 2010, the second an article on 8 October 2010, the third an article on 28 January 2011, and the fourth an article on 26 March 2011.
All of the newspaper articles concerned refer to the murder of a number of elderly women in their homes. One of the articles on 28 January 2011 in a small inset within the article refers specifically to the murder of the deceased woman, the subject of the current charge of murder.
Mr Algie SC submits that there has been something of, as he termed it, a frenzy of concern in the community about the safety and welfare of elderly people and elderly women in effect led by the publication of articles such as the kind referred to in The Advertiser. In Mr Algie’s submission the publicity in the context of the current offence with which the accused is charged is, of itself, likely to engender a significant emotional response in the minds of least some members of the jury which might be significantly exacerbated by the publicity. Mr Algie contends that this is a proper basis on which the Court should exercise the discretion in the rules to permit a trial by judge alone. The gravamen of the accused’s concern is about the capacity of the jury to put out of their minds the emotionally charged issue of the safety of elderly women in the community in the context of the publicity about that topic and the six deaths highlighted in the articles to which I was referred.
I accept that there is no ulterior motive or purpose behind the application made at this late stage to elect for trial by judge alone. Indeed Mr Wells conceded that informal discussions between the parties about making this application arising out of the recent publicity had taken place before the identity of the trial judge was known. That is of course a very material consideration. However there are other matters relevant to the exercise of the discretion to permit an accused person to elect at a late stage before trial to have a trial by judge alone.
It seems to me that the principle is best expressed in a passage from R v McGee and McGee (2008) 102 SASR 318. Even though McGee was decided in a different context, namely in the context of an application for a permanent stay, nevertheless the remarks of the Chief Justice are equally applicable to the application which I have to determine. Doyle CJ said at [147] – [150]:
…The court must also proceed on the basis, especially these days, that jurors may well acquire knowledge about a trial, before or during the trial, other than from the evidence put before them. As Mason CJ and Toohey J said in Glennon (at 603), the possibility of a juror acquiring "irrelevant and prejudicial information is inherent in a criminal trial".
But criminal courts generally expect that jurors are able to and will observe instructions given to them by the judge, and that they will take seriously their obligation to decide a case as dispassionately and fairly as they are able. The capacity of members of the community to decide a case fairly upon the evidence before them is not to be underestimated. Courts are entitled to, and must, rely on the integrity of jurors, otherwise the system of the jury trial will collapse. Courts rely also on the impact on individual jurors of the experience of the trial process, and the impact of the exposure of individual jurors to the collective fairness and judgment of the jury as a group.
To say this is not to ignore or to be blind to the fact that jurors, being drawn from their community, will come to the trial with a range of preconceptions, attitudes and biases on all sorts of matters. In a particular case some of those preconceptions, attitudes or biases might be adverse or helpful to the prosecution case or to the defence case. Nor does what I have said assume that such attitudes are easily displaced, or that in every case the holder recognises them.
But the fact is that our system of jury trial draws jurors from the community, recognising the existence of these things. Our system relies, to a considerable degree, upon the efficacy of judicial directions, on exposure to the process of the trial, and on the collective effort of the members of the jury to arrive fairly at a true result.
[Footnote omitted]
In another relatively recent decision R v Ferguson; Ex parte Attorney‑General (Qld) (2008) 186 A Crim R 483 the Queensland Court of Appeal was required to determine an application for a stay on the grounds of adverse pre‑trial publicity. In the course of the judgment their Honours made observations pertinent again to the issue which I have to decide.
In Ferguson the Court noted at [40] and [43] – [44]:
The jury trial has not been regarded and should not be regarded, as an exotic and delicate contrivance, the integrity of which cannot survive jurors' knowledge of matters adverse to an accused gained other than through admissible evidence.
…
Jury deliberations take place in an environment peculiarly conducive to the unbiased assessment of evidence with a view to determining guilt or innocence. An empanelled juror does not commence his or her role as a person undertaking a novel or foreign role. Jurors are aware consciously or subconsciously of the long tradition in this country of criminal trials in which 12 impartial men and women are the deciders of fact, of the unquestioned integrity of the process and its importance to society's fabric. The solemnity and social significance of the jurors' role is reinforced by the formality of the trial and the court room setting. As we have noted, jurors are sworn or make an affirmation to give a true verdict according to the evidence. The trial judge's opening remarks are calculated to reinforce instructions already received by the jury panel.
And, of course, the trial judge's instructions should be fashioned in light of the circumstances of the case with a view to assisting the jury to give a verdict uninfluenced by any irrelevant or improper considerations. Where there has been extensive pre-trial publicity, it is customary for the trial judge to explain the obvious points of distinction between media reports and the evidence presented in criminal cases…
In R v O, LJ [2010] SASC 145 at [35] the Court of Criminal Appeal adopted the remarks in Ferguson in concluding at [58]:
… juries are expected to discharge their duties properly even after sensationalised and prejudicial media reporting of quite horrific crimes. That expectation is informed, both by the necessity to accept, if jury trials are to be maintained, that jurors will be true to their oaths and follow the trial judge's directions, and the justified confidence that jurors do routinely meet that necessity.
Whilst these cases were decided in the context of applications for permanent stays arising out of what was said to be adverse pre‑trial publicity, nevertheless the rationale in each of the decisions is directly applicable to the issue which I have to decide here. Moreover, although there has been a degree of media attention in the last six months to the murder of elderly people in their own homes, I do not consider the publicity in respect of this matter to be nearly as extreme or as prejudicial to the accused in this matter as in the three cases to which I have referred. On the contrary while there has been understandable concern within the community about the safety and security of elderly people in their own homes, that is not a matter that has specifically arisen out of or could be sheeted home to the allegations in the current matter.
For these reasons I am confident that a jury properly instructed will be true to their oath and give a true verdict according to the evidence on the issues to be tried in this matter.
Therefore I decline in the exercise of my discretion to permit the accused to elect for trial by judge alone at this late stage before trial.