R v GAVARE (No 2) - [2011] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GAVARE (No 2)
[2011] SASC 79
Reasons for Decision of The Honourable Justice Kelly
7 April 2011
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Renewed 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 - whether r 8 of the Juries Rules 1996 (SA) ultra vires insofar as it restricts rights under the Juries Act 1927 (SA).
Held - application refused - absent strict compliance with the rules, an accused is not entitled to elect for trial by judge alone unless a judge dispenses with strict compliance - special circumstances not demonstrated - not unjust to refuse the application - r 8 of the Juries Rules 1996 (SA) not ultra vires.
Juries Act 1927 (SA) s 7(1)(a); Juries Rules 1996 (SA) r 8, 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 Garrett (1988) 50 SASR 392; R v Haydon (2000) 76 SASR 265, considered.

R v GAVARE (No 2)
[2011] SASC 79
Criminal

KELLY J: The accused has made a further application that this Court dispense with compliance with the requirements set out in r 8 of the Juries Rules 1996 (SA) in relation to an election for trial by judge alone.
The basis for the application is to be found in the publication of four newspaper articles in the Adelaide Advertiser on 7 and 8 October 2010, 28 January 2011 and 26 March 2011. The article of 7 October 2010 referred to the murder of an elderly woman at Elizabeth. The article on 8 October 2010 again concerned the same murder of the elderly woman at Elizabeth and included in a small inset within the article reference to two other murders including the murder of the deceased in this matter and the fact that this accused is due to stand trial in April 2011. Another article on that date included advice from experts about ensuring safety and security in the home. The article on 28 January 2011 concerned police investigations into the murder of an elderly woman in January 2011. In a side inset to that article there were dot point summaries of five other murders of elderly woman between 1998 and 2010, one of which included the current matter. An article on 26 March 2011 concerned a number of unsolved murders in the community generally. There was no reference to this matter.
Mr Algie SC submits that the publicity evidenced in the articles referred to can constitute “special reasons” in the meaning of r 16 and r 17 of the Juries Rules 1996 (SA), which would justify the Court in extending time to permit the accused to elect for trial by judge alone.
Mr Algie raised an alternative argument, that, to the extent which the rules endeavour to restrict or limit the accused’s rights, which he described as “unfettered”, under the Juries Act 1927 (SA), then they are ultra vires. Mr Algie frankly conceded that in view of the time factors involved he was not in a position to develop the alternative argument. For the reasons which follow it will become apparent that, in light of the wording of s 7(1)(a) of the Juries Act 1927 (SA) Mr Algie’s alternative argument ought not be accepted.
I agree with Mr Algie’s submissions to this extent; that should the Court find that the publicity referred to does amount to special reasons, then such a finding would in the circumstances of this case entitle the applicant to succeed on her current application.
Perhaps I should have expressed myself more clearly when stating my reasons for refusal of Mr Algie’s earlier application. I shall try to do so now in the context of the renewed application and the further submissions.
Section 7(1)(a) of the Juries Act 1927 (SA) provides that the election for a trial by judge alone must be made in accordance with the rules of court. That means, as King CJ pointed out in R v Garrett[1] that under that section the right of an accused depends upon the election being made in accordance with the rules of court. An accused person’s election must therefore comply with the rules of court.
[1] R v Garrett (1988) 50 SASR 392 at 399.
Rule 8 of the Juries Rules 1996 (SA) relevantly states:
(1) An accused person may make an election (hereinafter called (“the election”), pursuant to section 7(1)(a) of the Act in the manner and at the time stipulated in this Rule and not otherwise.
…
(5) Except in the case of an accused person committed for a trial to a circuit sittings the election may be made:
(a)     by filing at the Registry of the Court of trial not later than the last day upon which the Registry is open for business prior to the day of the accused person's first arraignment on the information in respect of which the trial is intended to be held, a notice in writing signed by the accused person making the election and a certificate complying with Rule 10;
(b)     by the accused person or by counsel appearing for the accused person orally informing the Judge on the accused person's first arraignment on the information in respect of which the trial is intended to be held of the accused person's election and tendering to the Judge a certificate complying with Rule 10; or
(c)     by filing a notice in writing signed by the accused person making the election and a certificate complying with Rule 10 within such time and in such manner as the Judge on the first arraignment of the accused person on the information in respect of which the trial is intended to be held shall direct.
…
(7) If the election is not made in accordance with the preceding subrules of this rule, the accused person is precluded from making it subsequently notwithstanding that the information is amended or that the trial proceeds upon an information filed in substitution for an earlier information or informations on which the accused person has been arraigned, provided however that if the amendment or the new information alters the substance of the charge or charges upon which the accused person is to be tried, the accused person may make an election at or prior to the first arraignment on the new or amended information and the provisions of the proceeding subrules shall apply mutatis mutandis.
Rules 16 and 17 relevantly state:
16 A Judge may dispense with compliance with all or any of the requirements of these Rules, if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so.
17 A Judge may extend or abridge any of the periods of time prescribed by these Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so and the Judge may do so whether or not such period of time has expired.
It can be seen that r 8 provides that an accused person may make an election under s 7(1)(a) of the Juries Act 1927 (SA) but only in the manner and at the time stipulated in r 8. As Lander J observed in R v Haydon[2] the scheme of the rules is clear. Absent strict compliance with r 8, an accused is not entitled to elect for trial by judge alone. If there are special reasons for doing so, or it would be unjust not to do so, a judge may dispense with that strict compliance under the provisions of either r 16 or r 17. Effectively therefore an accused person is either locked out or locked in to his or her election once made.
[2] R v Haydon (2000) 76 SASR 265 at [52] – [54].
A failure to comply with the procedures prescribed by r 8 is not regarded as a mere technical departure and may prevent an election being made unless the trial judge dispenses with compliance under the provisions of either r 16 or r 17.[3]
[3] R v Garrett (1988) 50 SASR 392 per King CJ at 399, R v Haydon (2000) 76 SASR 265 per Debelle J at [8].
Are there special reasons in the circumstances of this case to dispense with compliance with r 8? There are in my view no special reasons in the circumstances of this case because there is nothing out of the ordinary in the circumstances argued by Mr Algie which would make them “special”.
I cannot accept the submission that the four articles referred to amount to “a frenzy of concern” within the community. While there may well be understandable concern within the community about the safety and security of elderly people, that concern is neither novel nor new. There is nothing in the articles which could give rise to any suggestion that the community’s concern has specifically arisen out of or could be sheeted home to the allegations in the current matter.
Moreover publicity both pre‑trial and during trials routinely occurs in relation to many serious criminal cases. This matter is no exception. In saying that I do not suggest that in no case could publicity (either specific or general) ever amount to “special reasons” for the purpose of the Juries Rules 1996 (SA). Each case must be determined on its own facts. However there is nothing in the circumstances here which amount to special reasons within the meaning of either r 16 or r 17.
Would it nevertheless be unjust to refuse the application? In my view it would not be unjust to refuse the application. Trial by jury in indictable cases has been the mode of trial generally in this country for over a century. The confidence which the community has in the ability of jurors to return verdicts according to the evidence and only according to the evidence is not, in my view, misplaced. I share that view. There is nothing in the circumstances of this case which causes me to have any misgivings about the capacity of the jury in this matter to be true to their oath and return a true verdict according to the evidence on the issues to be tried.
Moreover it is customary that trial judges give directions to juries in every trial, especially where the circumstances may engender some sympathy for the deceased and his/her family, that jurors must put out of their mind any feelings of sympathy or prejudice. Juries are repeatedly reminded of the importance of this and the need to approach their task in an impartial, objective and fair manner.
As I pointed out earlier this week many courts in this country have affirmed that principle in a variety of circumstances, some of which involve publicity of a far more extensive and prejudicial nature than is the case here.
In my view it is worth repeating the observations of those courts.
I acknowledge that these cases were decided in the context of an application for a permanent stay, nevertheless I consider the principle in these cases to be equally applicable. In R v Ferguson[4] the Court noted:
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 …
[4] R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483 at [40] – [44].
In R v McGee and McGee[5] Doyle CJ said:
… 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]
[5] R v McGee and McGee (2008) 102 SASR 318 at [147] – [150].
In R v O, LJ[6] the Court of Criminal Appeal adopted the remarks in Ferguson[7] where the Court concluded:
… 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.
[6] R v O, LJ [2010] SASC 145 at [35].
[7] R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483 at [58].
The applicant has not shown that there are any special reasons in the circumstances of this case. I am satisfied that in the circumstances of this case it would not be unjust for me to refuse this application.
The application is refused.