R v Hart

[2015] NSWSC 1829

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hart [2015] NSWSC 1829
Hearing dates:	2 December 2015
Date of orders:	02 December 2015
Decision date:	03 December 2015
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Application for a trial by judge order dismissed.
Catchwords:	CRIMINAL LAW - murder - jury trial - application for trial by judge order - adverse publicity - where some increased cost and delay likely - where pre-trial publicity following committal arguably prejudicial to the accused - where accused’s involvement with drugs and firearms said to be likely to cause additional prejudice - whether in the interests of justice for trial by judge alone
Legislation Cited:	Criminal Procedure Act 1986
Category:	Procedural and other rulings
Parties:	Regina (Crown) Campbell Anthony Hart (Accused)
Representation:	Counsel: M Cunneen SC (Crown) E Wilson SC (Accused)   Solicitors: Director of Public Prosecutions (Crown) Lamond Legal (Accused)
File Number(s):	2013/00327594
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The accused applies pursuant to s 132 of the Criminal Procedure Act 1986 for a trial by judge alone. He is charged with the murder of Luke Hargraves at Lavington on 29 October 2013. The proceedings are listed for arraignment on 4 December 2015. The facts upon which the Crown proposes to rely at trial are in summary relevantly as follows.

2. At about 10.50pm on Tuesday 29 October 2013, a firearm discharged a .22 calibre projectile which struck Luke Hargraves just in front of his left ear. He was 31 years old. The bullet penetrated the left temporal region extending rightwards and slightly backwards through the brain causing lacerations of the left temporal lobe and left side of the brainstem. There was no evidence of gunshot residue, stippling or tattooing upon the deceased. He later died in Albury Base Hospital.

3. The incident took place in a room at 277 Vickers Road, Lavington, where the deceased lived. At the time of this incident the accused and the deceased were alone in the room with the door closed. The deceased was talking on his mobile phone to Shannon Turnbull. In the lounge room of the house were Jacinta Lekic, the deceased’s partner and Olivia Bromham. Both women heard the sound of a shot, shortly after which the accused left the room and walked out the front door saying, “Luke just took a shot at me”.

4. Earlier in the evening the accused spoke to the deceased, Ms Lekic and Ms Bromham about breaking up with his partner that day and causing damage to his house. When Ms Bromham left, the accused was invited to eat dinner. The deceased and the accused later went to the premises at Vickers Road. The accused purchased alcohol and some other items on the way.

5. Ms Bromham had returned to Vickers Road by the time they arrived. While she was out of the room the deceased drew Ms Lekic’s attention to a pen gun in the possession of the accused.

6. The accused went to the “cinema” or “theatre” room and called for the deceased to come in. Ms Bromham went to retrieve a lap top cord from the room and at that time spoke to a witness named Quirk by mobile phone about pen guns. There was conversation in the room among the deceased, Ms Bromham and Quirk on the phone about buying pen guns.

7. The accused then produced a pen gun from his pocket and said: “Yeah, I got one.” The accused told Ms Bromham the pen gun was not loaded. As she left the room the accused came and stood at the door. He appeared to be trying to use his phone. He swore and told the deceased he was trying to ring “his missus” but she would not answer. Quirk rang at 10.44pm and spoke to the deceased on his mobile phone for 2 minutes and 15 seconds, and offered to sell pen guns. The door of the room closed as Ms Bromham left.

8. At 10.38pm and at 10.42pm the accused called a witness named Jacob Schlieb. Jasmine Dysart made two calls to the accused without an answer at 10.36pm and 10.43pm. The accused then called her at 10.46pm. He said “G’day mate how are you”. She asked him if he was alright and he hung up. The deceased rang Shannon Turnbull at 10.47pm. He was still speaking to Mr Turnbull when he was fatally shot. The firearm was not recovered.

9. The accused’s application is supported by affidavits from the accused and his solicitor Graham Francis Lamond. The application is based upon the following contentions.

10. The accused grew up in Albury and his father ran a business in nearby Lavington. The evidence in the trial is expected to centre upon the accused’s involvement in the use and supply of methylamphetamine in and around Albury. The important Crown witnesses are involved in the use or supply of that drug. There may also be some evidence to suggest that the accused was concerned in its manufacture. The accused is concerned that this evidence will create prejudice in the minds of potential jurors and that there is a real and substantial risk in such circumstances that it may not be dissipated or overcome by directions from the trial judge. Moreover, the evidence will likely reveal that the accused has committed other offences including a break enter and commit indictable offence, firearms offences and the destruction of a motor vehicle. It is also anticipated that several witnesses have been charged with drug related offences for which they may still be serving sentences requiring them to give evidence from custody.

11. The accused also contends that there is a real risk that, in accordance with Director’s Guideline 24, a witness may so conduct himself or herself before the jury as to cause the trial to abort. No content is given to that contention.

12. The issues which the accused identifies as those likely to dominate at the trial are his intention and possible excessive self-defence or accident. He maintains that none of these defences raises or involves consideration of the application of community standards in accordance with s 132(5) of the Criminal Procedure Act.

13. The case has also allegedly attracted adverse publicity in the Albury area.

14. Finally the accused submits that there are real logistical difficulties associated with conducting the trial before a jury in the area in which the facts giving rise to the proceedings are alleged to arise. The relevant court is in Albury. The accused’s counsel resides in Wagga Wagga. The estimate for the trial with a jury is from four to six weeks. There is a potential for the giving of evidence by 147 witnesses, although concessions by the accused concerning the date, place and cause of death may affect the reliability of that prediction. Subject to that prospect, the vast majority of witnesses to be called will come from the Albury area. It is anticipated that 59 of these will be police witnesses, 85 lay witnesses and three experts.

Legal principles

15. Section 132 of the Criminal Procedure Act is in the following terms:

“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.”

16. The question for consideration is whether the court considers it is in the “interests of justice” to make the order for the trial to be held by judge alone. Little guidance is given in the statute as to what would constitute “the interests of justice”. That form of words confers a wide discretion: the word “consider” is equivalent to “be satisfied”. The question is not whether the circumstances of the case are suitable or appropriate for the making of an order that the trial proceed before a judge alone. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. It is an expression of very wide import and may raise an extremely diverse array of considerations.

17. The phrase “the interests of justice”, necessarily contemplates the right of the accused to a fair trial. It is assumed that the protections afforded an accused person in the ordinary course of a trial will not protect him or her from an unjust result. The interests of justice are not limited to the position taken by the accused and involve wider concerns such as the robustness of the system of trial by jury in cases involving adverse publicity.

18. Although there is an evidentiary onus on the applicant, there is no presumption for or against a trial by jury or judge alone. There is no legal onus on an accused who seeks an order for trial by judge alone. The approach of the parties to the issue should not be an adversarial one.

19. Where the accused has indicated a preference for a judge alone trial and a concern about whether he or she will receive a fair trial, the accused’s wishes are not determinative but are a relevant factor to be weighed in assessing where the interests of justice lie. A mere stated apprehension without supporting evidence is not enough. An accused cannot have a trial by judge alone just by asking for it. The decision must be founded upon evidence apart from matters of which the judge may take judicial notice.

20. In cases where the trial involves an issue which may be informed by objective community standards then a jury may be the more appropriate tribunal. The category of issues is not limited, and the court is not limited, in deciding the ultimate question to whether or not the trial will involve a particular issue.

21. The issue of intention may or may not need the application of a community standard. An issue about the credibility or reliability of the accused might arise where a history of the ingestion of drugs is relied upon to found an expert opinion going to the issue of intention or foresight of the probability of death. There is some controversy about this issue. There is support for the view that although it could not be said that the issue of intention could never involve the application of objective community standards, it is difficult to accept that whether or not an accused formed a particular intention in relation to a charge, necessarily or even arguably involve a factual issue that requires the application of objective community standards.

22. While it is sometimes assumed that trial by jury is a better way of deciding issues such as credibility of witnesses, there is no “preferred” method of trial. The fact that the credibility of witnesses may have to be determined is a neutral matter in determining whether it is in the interests of justice to make an order for trial by judge alone. There can be no presumption that a jury is a superior tribunal of fact for this purpose.

23. The significance of prejudice will vary from case to case, depending on the nature of the allegations, the nature of the defence and the character of the potential prejudice. The fundamental assumption is that jurors are true to their oaths and affirmations. It is to be assumed that a jury will generally follow and act on the instructions and directions it is given.

24. There is no doubt that on many occasions juries have been required to hear evidence involving significant prejudice. The law however recognises situations where evidence must be excluded because of its propensity to give rise to unfair prejudice. Separate trials may also be ordered or multiple counts severed when the possibility of an adverse reaction of jurors to prejudicial material cannot be cured by direction.

25. Trials are often likely to be shortened without a jury. This is a relevant consideration. However, administrative convenience cannot by itself justify a judge alone trial. The anticipated efficiencies, including speed and flexibility, in the conduct of a judge alone trial and the provision of reasons for the decision can promote the interests of justice in individual cases. These efficiencies and the length of the trial may form part of the mix of issues to be considered.

The evidence

26. Graham Francis Lamond is the accused’s solicitor. He swore affidavits on 2 and 27 November 2015. The accused also swore an affidavit on 2 December 2015. The significant matters to which each has deposed are all referred to in terms, and have been taken into consideration, in what follows.

The accused’s submissions

27. In summary, having regard to the evidence, this application rests upon the following factual contentions.

28. First, there may be significant logistical problems with any of Albury, Wagga Wagga or Griffith court houses. These venues are notoriously less flexible than metropolitan courts.

29. Secondly, the accused perceives that he may not receive a fair trial given the nature of the evidence to be adduced concerning his own drug use, his alleged involvement in the manufacture and distribution of drugs in Albury and surrounding districts, as well as evidence linking him to the commission of other offences.

30. Thirdly, the accused also considers that there is a real risk that one or more of the Crown’s witnesses may conduct himself in a manner that has the potential to abort the trial.

31. Fourthly, several Crown witnesses associated with the accused are likely to be called to give evidence from prison.

32. Fifthly, the accused fears that adverse publicity in the Albury area may interfere with the neutrality or objectiveness of local jurors.

33. Sixthly, the trial is said to raise no issues requiring the application of community standards.

34. Finally, there are potential time and cost efficiencies to be achieved in the running of the trial without a jury.

The Crown’s submissions

35. The Crown response emphasised the following matters.

36. The Crown contended that Albury is the appropriate venue for the trial. However, the Crown conceded that if the accused’s application for a judge alone trial were refused, a change of venue would be necessary, given the matters deposed to by Mr Lamond. I take that concession to be a reference to information that Albury court house can only accommodate a three week trial in February, March, May or July 2016 or possibly a four week trial in June 2016. The best current estimate of the trial with a jury is from 4 to 6 weeks.

37. More generally, the Crown contended that it would be impossible to avoid any reference to the use, manufacture or distribution of amphetamines as it is central to the Crown case. That is so not only with respect to the accused but also the deceased and some of the Crown witnesses. The community from which a jury would be drawn wherever it may be will be well accustomed to the problems associated with drug abuse. Strong warnings to a jury would adequately overcome any possibility that unfair prejudice might attend the reception of evidence about such matters. The Crown submitted that such prejudice was not all one way.

38. There is no evidence that any potential witness may misbehave. This is something with which a trial judge can deal during the course of the trial or with proper directions. Misconduct by a witness does not also necessarily reflect poorly upon an accused person.

39. The Crown has conceded that some adverse local publicity will have been generated by the shooting of the deceased. No attempt has yet been made to identify its nature or extent. Juries are in any event customarily warned about the need to ignore publicity and to remain objective.

40. Self-defence has been flagged as a likely defence. The reasonableness of the accused’s response to any perceived threat is a matter customarily calling for the application of community standards. It should be given particular weight in the circumstances of this case.

41. The Crown acknowledges and accepts that a non-jury trial is likely to be shorter.

42. The Crown does not concede that these matters, whether alone or in combination, support a conclusion that the trial should be by judge alone. In particular, the issue of the application of community standards to the issue of self-defence and the reasonableness of the accused’s response to any perceived threat means that no other conclusion is warranted.

Consideration

43. The accused has been in custody for in excess of two years. He is to be arraigned tomorrow. He is understandably anxious in those circumstances that a date for his trial is set as soon as possible. Although the first estimate for the trial was said to be in the order of from 4 to 6 weeks, discussion with counsel in the course of this application suggests that that estimate may be particularly conservative and that the trial, even with a jury, might conclude in less than 4 weeks. The list of witnesses seems to me at first sight to be eminently capable of being shortened, so that a revised estimate for the length of the trial seems likely.

44. The current listing arrangements for Albury suggest that a 4 week trial could be accommodated in June with shorter periods of three weeks available in the first half of 2016. This case seems to me to be one in which the first available date should be assigned, even where there was a prospect that the case would extend a little beyond the best estimate. In other words, I would like to think that the trial in Albury of a person who has been in custody on remand awaiting trial for 2 years would be given some particular priority, even if that meant occupying a week or so that may presently be scheduled for the hearing of other matters.

45. The availability of the Albury Court seems to me to be the only genuine logistical issue that calls for consideration. Whatever may happen to the length of the trial, its conduct, whether in Albury or elsewhere, is unlikely to raise novel or unique issues of case management that are not common to all venues. There are obvious advantages and disadvantages to conducting trials in rural or metropolitan venues, even when the majority of witnesses are to be assembled and called from the area in and surrounding the scene of the alleged crime. Provided that the accused’s trial is not further delayed by court availability in the Albury area, there do not seem to me to be any special or difficult logistical issues that favour a trial by judge alone. In expressing that view I intend specifically to take into account, when assessing where the interests of justice may lie, that avoidable delay would be inimical to that concept from the position of both the accused and the Crown.

46. I accept without reservation that the accused perceives that he may not receive a fair trial before a jury drawn from the Albury area and that a judge alone trial would exclude that possibility. The accused refers in this context to the nature of the evidence to be adduced concerning his own drug use, his alleged involvement in the manufacture and distribution of drugs in Albury and surrounding districts, as well as evidence linking him to the commission of other offences.

43. The underlying assumption for these fears is the perception that jurors will treat an accused with such a history as neither worthy of support or belief on the one hand and possibly even deserving of contempt and thus punishment on the other hand. That perception proceeds upon the basis that juries are in fact not representative of the community at large but are instead made up of narrower and prejudicial groups drawn only from the conservative elements of society. The accused is concerned that he may be disadvantaged if members of his jury had had unfavourable personal experiences with drugs or those who supply them, or vicarious experiences through friends or family members whose lives may have been similarly affected.

44. On the other side of that coin is a fact, to which the Crown helpfully referred, and which will presumably receive prominence at some point in the trial. That is that the accused and the deceased each come from good homes with close community ties and are themselves as much the victims of illicit drugs as any other person in their position and therefore deserving of sympathy rather than condemnation. It cannot be assumed, according to this analysis, that jurors will not adhere to their oaths or affirmations to use their common sense, to discard prejudice or predisposition, and to bear in mind that the issues for determination are legal not moral. These are topics that are customarily the subject of extensive judicial directions and are necessarily accompanied by the assumption that juries follow them. There are unfortunately many examples where such exhortations have not been heeded but these exceptions have so far not achieved sufficient force to prove the rule.

45. Based upon my experience, to the extent that it is relevant, juries are not uncritically judgmental or unsophisticated. The notion of a jury of one’s peers by definition incorporates the anticipation that juries will be made up of individuals from all walks of life and with significantly different backgrounds and experiences. The right of the accused and the Crown peremptorily to challenge candidates for selection based upon nothing more than presumably their gender, age and appearance, rather underscores the accepted unpredictability of the final makeup of any and every jury. It should not, and cannot, be assumed, favourably to this application, that jurors will necessarily be adversely affected by evidence about drugs or firearms or the accused’s alleged involvement with either. His alleged connection with a sex worker is even less controversial. Perhaps counterintuitively, given the notoriously widespread use of methylamphetamines in rural communities, no robust assumptions or predictions can be made about jury attitudes to such things when drawn from the local populations in the circumstances.

46. The accused next considers that there is a real risk that one or more of the Crown’s witnesses may conduct himself or herself in a manner that has the potential to abort the trial. Upon inquiry of counsel, no content was given to this concern. The committal proceedings did not expose any particular witness as someone who is likely to misbehave at a trial. The prospect that it may occur at the accused’s trial is therefore no greater than in every trial.

47. Nor am I particularly concerned that several Crown witnesses associated with the accused are likely to be called to give evidence from prison. On one view, such witnesses, if called in the Crown case, may be viewed unfavourably to the Crown and therefore not unfavourably to the accused. I think that juries are sufficiently worldly to understand that not all witnesses in criminal trials necessarily hail from the best part of town. Once again in my experience, the content of what a particular witness has to say is more often than not the platform upon which juries build their assessment of any particular witness, rather than his or her curriculum vitae or their custodial status.

48. In a slightly different category is the accused’s concern that adverse publicity that the case has already been given in the Albury area may interfere with the neutrality or objectiveness of local jurors. Mr Lamond’s latest affidavit is instructive in this respect. Annexure “F” to that affidavit is a tear sheet from an electronic edition of the Border Mail on 25 February 2015, which carries the distinctive headline “Luke Hargrave shot with pen gun by ice-addicted friend Campbell Hart.” The article also contains the following text:

“A LAVINGTON man believed to have been involved in a failed $250,000 drug cook-up was shot with a pen gun by a friend who was addicted to ice, a committal hearing in Albury was told yesterday.

Luke Hargrave, 32, died at his Vickers Road home after being shot near the left temple by Campbell Hart on October 29, 2013.

A three-day committal hearing involving Hart, 29, started in Albury Local Court yesterday…

…

One witness, Aaron Bass, said he was friends with Mr Hargrave, who became depressed after separation from his partner.

Mr Bass suspected Mr Hargrave was dealing drugs after the separation because a lot of people started visiting his house.

…

[Mr Bass] said he did not think Mr Hart was involved in drugs, but his opinion had changed.

Mr Bass said Hart always looked like he was sleep deprived, he was skinny and paranoid about undercover police cars.

He said the last time he had seen Hart was about two weeks before the shooting.

‘He looked like he was off his head on drugs. In the six months I knew him, he totally changed,’ Mr Bass said.”

53. Another internet article from the Border Mail headed “Botched ice cook-up may have led to shooting” was published on 2 September 2014. The article recites many of the matters that have emerged in this application which the Crown will seek to prove as part of its case against the accused. To that extent it will all be material that any jury would be likely to hear in due course in any event. That includes the allegation that the accused left the premises by the front door following the shooting saying, “Luke just took a shot at me”.

54. The relevant concern that any accused person is entitled to have about pre-trial publicity must be that it is either inaccurate or otherwise formulated in a way that appears to give it the authority of fact rather than allegation. This underscores the distinction between fair reporting on the one hand and prejudicial material on the other hand. Proximity to the trial is also a factor that influences the effect of publicity to which objection is taken. In all cases it must also not be capable of amelioration or correction by appropriate directions and warnings.

55. Once again I observe that juries are constantly and repetitively reminded to take no notice of publicity and in particular to undertake no research of any kind about an accused person or anything to do with the case at hand. There does not appear to me to be anything in the material annexed to Mr Lamond’s well researched affidavit that is unfairly and irreparably likely to cause prejudice to the accused. The Crown is undoubtedly proposing to open its case by reference to the very matters that have so far been reported. The notion that publication in a local newspaper gives authority to a fact that it would or might not otherwise have does not attract me as being highly credible. The opposite may well be true. The position may be distinctly different if a paper or radio station circulating or broadcasting in Albury had run a smear campaign of misinformation and innuendo directed at the accused. This has not happened. The recent publicity concerning the terrible consequences produced by the prevalence of methylamphetamines in the community is not adverse publicity of the type under consideration. That is more closely associated with the attitudes of jurors to drug use to which I have already referred.

56. It would not be possible to operate or function in modern Australian society without encountering on an almost daily basis the type of publicity or articles of which the accused complains. As regrettable as it may be, drug use and abuse is commonplace. It affects and arguably infects all levels of social discourse and activity. Criminal trials are regularly concerned both directly and indirectly with illicit drug manufacture, sales and distribution. By the time the Crown has concluded its opening in this case, any jury empanelled to hear it will have been provided with at least as much information about the accused’s alleged involvement with drugs as appears in all of the specified articles combined.

57. The accused’s concern about firearms use or possible offences committed by him does not appear to have been similarly reflected in publications in the public domain.

58. Although the accused contends that the trial is unlikely to raise any factual issues requiring or involving the application of objective community standards, I disagree. Although I am unarmed with the ability to predict precisely what issues will arise at the trial, self-defence has been suggested, having regard to some statements allegedly made by the accused following the shooting. The question of whether or not an accused person acted in self-defence, or the associated question of whether or not his or her response to a perceived threat was reasonable, is very much an issue calling for the application of community standards. The death in this case occurred in circumstances where there were no witnesses to observe what occurred. Questions of credit may well emerge. These are issues upon which juries are regularly called to adjudicate. There is nothing about the issues in this case that leads me to conclude that a jury should not do so here.

59. Finally, the Crown concedes that there are potential time and cost efficiencies to be achieved in the running of the trial without a jury. Unfortunately, as true as that concession may be, it does not correspond to a convincing, less so an automatic, reason why a judge alone trial should be ordered. Recent experience in this Court suggests that some trials can be very long indeed, and significantly longer because of the need to accommodate the important requirements, both as jurors and as ordinary citizens, of those who are empanelled to decide a case. The savings that are likely in this case would be marginal at best.

Conclusions and orders

60. In my view, there is nothing arising upon a consideration of the particular facts of this case that warrant acceding to the accused’s application. It is not in the interests of justice, as that concept is properly understood, to order that the accused be tried by judge alone.

61. Accordingly, the application for a trial by judge order is dismissed.

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Amendments

25 October 2019 - Typographical error amended in [19]

Decision last updated: 25 October 2019