R v King

[2013] NSWSC 448

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Sean Lee King [2013] NSWSC 448

Hearing dates:

2 April 2013

Decision date:

04 April 2013

Before:

Bellew J

Decision:

1.I grant leave to the accused, pursuant to s. 132A of the Criminal Procedure Act 1986, to make application, pursuant to s. 132 of that Act, for an order that he be tried by judge alone.

2.I dismiss the notice of motion filed by the accused on 19 March 2013.

Catchwords:

CRIMINAL LAW - murder - application for a trial before a judge alone - whether in the interests of justice to grant the order sought - whether issue of intention was one which required the application of community standards - whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone - whether potential saving to the community is a relevant factor - where appropriate directions will be given to the jury - where it is assumed that such directions will be applied - application for judge alone trial dismissed

Legislation Cited:

Criminal Procedure Act (NSW) 1986
Criminal Procedure Act (WA) 2004
Jury Act (NSW) 1977
Supreme Court Act 1970

Cases Cited:

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Chapman v Gentle (1986) 28 A Crim R 29
Gilbert v R (2000) 201 CLR 414 at [31]
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R
R v Booth; R v Box [1964] 1 QB 430
R v Burrell [2004] NSWCCA 336
R v D'Arcy (2003) 140 A Crim R 303
R v Dudko (2002) 132 A Crim R 371
R v Glennon (1992) 173 CLR 592
R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56
R v Jamal (2008) 72 NSWLR 258; (2008) 191 A Crim R 1
R v K (2003) 59 NSWLR 431

Texts Cited:

"The internet and the right to a fair trial" (Spigelman CJ) (2005) 29 Crim LJ 331

"Some simple thoughts on intention" (Buxton) [1988] Criminal Law Review 484

Category:

Principal judgment

Parties:

Regina - Crown
Sean Lee King - Accused

Representation:

Ms K Shead - Crown
Mr J Stratton SC - Accused
S Kavanagh Solicitor for Public Prosecutions - Crown
Gregory Goold Solicitor - Accused

File Number(s):

2011/230096

Judgment

INTRODUCTION

1. An indictment has been presented against Sean Lee King ("the accused") alleging that on 10 July 2011 he did murder Jazmin-Jean Ajbschitz ("the deceased"). At the time of his arraignment on 5 October 2012 the accused pleaded not guilty to the charge of murder but guilty to the charge of manslaughter. That plea was not accepted by the Crown in satisfaction of the indictment.

1. The accused's trial is listed commence before me on 8 April 2013.

1. By notice of motion filed on 19 March 2013 the accused has made application for an order pursuant to s. 132 of the Criminal Procedure Act 1986 ("the Act") that he be tried by judge alone.

1. The application is opposed by the Crown.

1. At the outset of his submissions Mr Stratton SC, who appeared on behalf of the accused, drew my attention to provisions of s. 132A of the Act and pointed out that because the present application was brought by the accused less than 28 days before the date fixed for trial, the leave of the court was required. The Crown did not oppose a grant of leave.

THE CROWN CASE

1. The following summary is taken from the written submissions provided by the Crown on the hearing of the present application. Mr Stratton, in written submissions provided in response, took no issue with the outline of the case set out in the Crown's submissions.

1. The accused and the deceased met in 2009 and formed a relationship. That relationship was a volatile one, marred by violence. On the afternoon of Sunday 10 July 2011 the deceased met with two friends before going to her mother's premises which were located in an apartment block at 444 Harris Street, Ultimo. The deceased and her friends arrived there at about 6:50pm.

1. Following their arrival, the deceased received a number of telephone calls from the accused. Following some of those calls, the deceased appeared shaking and angry. On one occasion, having answered a call from the accused, the deceased placed her phone on loud speaker and the accused was heard to say:

"You just wait Jazi, you don't know what I'm going to do, I am on my way to your Dad's house now".

1. About 20 minutes later the deceased answered a further call from the accused which again was put on loud speaker, at which time the accused was heard to say:

"Jazi, you don't know, you think I am joking, you don't know what I can do, I will come over, I will kill you, I will kill anybody that you are with."

1. At about 7:41pm that evening, having received such calls from the accused, the deceased telephoned her mother and expressed fears for her safety.

1. At the time of making those calls the accused had been travelling into the city with a friend, Adam Dark ("Dark"). He and Dark arrived in the city between about 8:00pm and 8:30pm and as the accused was not certain how to get to the address in Harris Street, he parked his car and caught a taxi.

1. CCTV footage establishes that having arrived at 444 Harris Street, the accused and Dark went to the front door of the apartment block and attempted to gain entry. They were initially unsuccessful in those attempts, due to the fact that a swipe card was required to unlock the door. However at 9:03pm they managed to enter the building by following another resident who was going inside. Having caught the lift to Level 5 with that resident, the accused and Dark knocked on the door of several of the apartments, enquiring of the occupants of such apartments as to their knowledge of the deceased, and/or their knowledge of her then whereabouts.

1. Having been unsuccessful in locating the deceased, the accused and Dark left the apartment block at about 9:20pm. A short time later the two friends who had been with the deceased also departed the premises, as a consequence of which the deceased was left alone.

1. The accused returned to the apartment block at about 10:00pm. He attempted to use the intercom system and was then seen to speak into his mobile telephone. CCTV footage establishes that the deceased approached the front door of the apartment block from the inside at about 10:03pm. She and the accused appeared to argue through the door before the deceased opened it and walked outside. She and the accused spoke for a short time before entering the building and then entering the elevator.

1. Between 10:00pm and 11:00pm a number of occupants of neighbouring apartments heard noises emanating from the direction of the apartment of the deceased's mother. One noise was described as persistent thudding, in the nature of the kind of noise which might result from furniture being moved and banged against a wall. Another noise was described as being akin to a "slow stomp". The noises continued for about three minutes. It is the Crown case that between 10:05pm and 10:31pm the accused murdered the deceased inside the apartment by repeatedly beating her, kicking her and stomping on her.

1. There is evidence of the accused having been identified by the resident of the apartment block behind whom he and Dark first gained access. He was also identified by one of the residents with whom he enquired as to the deceased's whereabouts. Both residents told police that in their respective opinions, neither the accused nor Dark appeared to be substantially intoxicated.

1. It is not necessary, for present purposes, to further summarise the nature of the Crown case against the accused, or the evidence upon which the Crown will rely.

THE EVIDENCE ON THE PRESENT APPLICATION

1. The notice of motion filed by the accused is supported by two affidavits and one statement, all of which were admitted without objection.

1. The first affidavit is that of the accused sworn on 15 March 2013. For the purposes of the present application the following paragraphs of that affidavit are of particular relevance:

"6. My level of intoxication is an essential issue in the trial. It will be argued on my behalf that given my level of intoxication I was unable to form the requisite intent to murder.

7. The case for the defense (sic) will be based on expert pharmacological and psychiatric evidence.

8. Pre-trial media coverage and online discussion that is widely available contains information that would be inadmissible at trial and/or will prejudice my trial.

9. It is in the interests of justice that an order for trial by judge alone be made.

1. The second affidavit is that of Benjamin Andrew Jamieson, a solicitor in the employ of Gregory Goold, who is the solicitor for the accused. Annexed to Mr Jamieson's affidavit were the partial results of an internet search which was carried out using the words "Sean King murder". The first of the documents annexed to the affidavit, being a document obtained directly as a consequence of the search, produced links to a total of ten (10) articles published on the internet, of which five (5) relate to the charge against the accused. Although not specifically stated in the affidavit, I infer from the series of numbers at the foot of that page that the links to articles produced as a result of that search, including those relevant to the charges against the accused, are not limited to, and in all likelihood extend beyond, those links which are set out on that page.

1. Also annexed to Mr Jamieson's affidavit are copies of three particular articles published on the internet relating to the proceedings against the accused. It is apparent that those articles were published at a time when the proceedings against the accused were still before the Local Court. My attention was drawn, in particular, to the second of those articles published in the on line edition of the "Inner West Courier", the headline of which reads:

"CRIME: Man accused of Ultimo murder was on bail at the time of the crime".

1. The article goes on to record the fact that the accused was on bail at the time of the deceased's death in respect of two counts of assault. It should be noted that I was informed in the course of submissions that those offences may be the subject of an application by the Crown pursuant to ss. 97 and 98 of the Evidence Act. However as no such application has yet been made, I have proceeded to determine the present issue on the basis that evidence of such matters will not be before the jury at the trial.

1. Finally, a statement of John Andrew Farrar, a Forensic Pharmacologist, was tendered. For the purposes of providing a statement, Mr Farrar was provided with a series of documents including what were described as "instructions from the accused". Based, at least in part, upon a history apparently provided by the accused as to his consumption of Methylamphetamine and alcohol in the hours leading up to the deceased's death, Mr Farrar expressed the opinion that the ability of the accused to form an intention to kill the deceased would have been substantially impaired.

1. Mr Farrar was also provided with statements of four named persons who, I infer, are likely to be called to give evidence at the trial in the defence case to support the history provided by the accused to Mr Farrar.

THE LEGISLATION

1. Section 132 of the 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.

THE SUBMISSIONS OF THE PARTIES

1. Mr Stratton commenced his submissions by making reference to the provisions of s. 132(4) of the Act. He drew attention to the court's discretionary power to make an order for a judge-alone trial "if it considers that it is in the interests of justice to do so." He submitted that one of the paramount considerations encompassed by the phrase "interests of justice" (although not the sole consideration) was the right of the accused to a fair trial (see Chapman v Gentle (1986) 28 A Crim R 29).

1. Concentrating upon the fact that the principal issue in the trial is the accused's intention, Mr Stratton pointed out that the provisions of s. 132(5) of the Act did not specifically include that issue as one which required the application of objective community standards. He also drew my attention to the terms of the Second Reading Speech of the then Attorney-General which similarly did not include any such reference. These factors, he submitted, reflected the aim of the Parliament that an issue of intention should not be regarded as being one to which it was necessary to apply objective community standards. Mr Stratton sought to contrast the present position with one in which the issue for determination might be one of indecency or dishonesty and where the application of such standards would obviously be relevant. All of these factors, he submitted, supported the conclusion that it was in the interests of justice that the order sought be granted.

1. Mr Stratton then advanced four specific submissions, all of which were said to prejudice the right of the accused to a fair trial and which, for that reason, were said to support the making of the order sought.

1. Firstly, he relied upon the evidence annexed to the affidavit of Mr Jamieson concerning the publicity which the proceedings have attracted to date. Whilst he accepted that the publicity was perhaps not as extensive as is often the case in matters of this nature, he pointed to two particular factors which he submitted were significant. The first was the ease with which a basic search had produced material of the kind annexed to Mr Jamieson's affidavit. The second was the fact that even a simple search of that nature would reveal, if it were undertaken by any potential juror, the fact that the accused was on bail for offences of violence at the time of the deceased's death.

1. Mr Stratton then submitted that it was inevitable that there would be photographic evidence depicting the deceased's injuries which would be relied upon by the Crown, and which a jury would find distressing. This, he submitted, gave rise to a danger of unfair prejudice being visited upon the accused.

1. Thirdly, Mr Stratton submitted that the accused's admitted use of Methylamphetamine, and the effects of such use upon him, which were matters pivotal to the defence case and which would necessarily be disclosed in the evidence, would likely, if not inevitably, give rise to prejudice on the part of at least some members of the jury.

1. Finally, Mr Stratton drew a comparison between the likely course, and length, of a trial before a jury on the one hand, and a trial before a judge alone on the other. Although the estimate which was provided at the time at which the trial was set down was one of 3 weeks, Mr Stratton expressed some significant reservations about the likelihood of a trial before a jury being completed within that time frame. In contrast, he submitted that a trial before a judge alone would occupy far less court time, thereby saving substantial cost to the community. He further submitted that proceeding in that way would ensure the most efficient use of the resources which are available.

1. In particular, Mr Stratton pointed to the fact that the Crown brief contained statements of more than 100 witnesses which, when combined with the case for the accused, would likely mean a trial in excess of the present three week estimate. In comparison, he submitted that were the trial to proceed before a judge alone, it was likely that less than five prosecution witnesses would be required to give oral evidence, the balance of the Crown brief being able to be tendered.

1. The Crown accepted that the principal issue in the trial concerned the intention of the accused and that, as a result, there would be expert evidence relied upon both by the Crown and the accused. However, the Crown submitted that such expert evidence was not likely to be overly complex, nor was it likely to be lengthy.

1. In terms of the provisions of s. 132(5) of the Act, and in particular in terms of the reference within those provisions to issues requiring the application of objective community standards, the Crown pointed out that the particular issues which were enumerated in the section were not expressed to be exhaustive. In this regard, the Crown relied, in particular, upon observations made by Heydon J in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 where his Honour, in reference to s. 118(6) of the Criminal Procedure Act 2004 (WA) (which was in substantially similar terms to the provisions of s. 132(5) of the Act) said (at [95]; 473):

"Other examples of factual issues requiring the application of "objective community standards" include ... whether an accused person had a particular intention."

1. In terms of the prejudice which was said by the accused to be likely as a consequence of the media and internet coverage to date, the Crown submitted that this was an issue which could be appropriately dealt with by directions to the jury. In this regard, the Crown relied upon a number of authorities which, it was submitted, supported the conclusion that a criminal trial is founded, at least in part, upon the proposition that a jury will apply directions of law which are given to them by a trial judge: Gilbert v R (2000) 201 CLR 414 at [31]; R v Dudko (2002) 132 A Crim R 371; R v D'Arcy (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 336; and R v Jamal (2008) 72 NSWLR 258; (2008) 191 A Crim R 1.

1. The Crown also relied upon those authorities in two other respects. The first was in response to the submission made on behalf of the accused that prejudice would arise as a consequence of the disclosure, in any defence case, of his admitted use of illicit drugs. The second was in response to the submission concerning the likelihood of prejudice arising from the tender of photographs of the deceased. In respect of both of these issues, the Crown submitted that the matter could be dealt with by appropriate directions. Further, and specifically as to the second issue, the Crown indicated that quite apart from the fact that the use of photographic evidence depicting injuries to a deceased was not unusual in matters of this nature, the use of such material in the accused's trial would be minimal in any event.

1. Finally, the Crown accepted, as a general proposition, that a trial before a judge alone would take less time to complete than would be the case if it were to proceed before a jury. As I understood it, the Crown's present estimate of the trial, on the assumption that it proceeds before a jury is 3 weeks, or perhaps a little longer. However, the Crown did not accept that a trial before a judge alone would be completed within the time frame suggested by Mr Stratton, and pointed to the fact that the evidence of those witnesses whom the Crown would wish to call would still occupy considerable court time.

1. Further, and in any event, the Crown submitted that the fact that court time might be saved, and resources better used, if the matter were to proceed before a judge alone were not relevant to the issue that I was required to determine. In that regard, the Crown placed particular reliance upon the decision of McClellan CJ at CL (as his Honour then was) in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 (at [111]; 28).

THE RELEVANT PRINCIPLES

1. In R v Belghar (supra) the Court of Criminal Appeal considered, in some detail, the provisions of s. 132 of the Act, albeit against a different factual background to that which applies in the present case. Having undertaken an exhaustive review of the relevant authorities McClellan CJ at CL made a number of important observations.

1. Firstly, his Honour said (at [96]; 25):

"Although s 131 provides for trial by jury "except as otherwise provided", I do not think that the section has the effect of creating a "presumption" that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a "presumption" of trial by jury is displaced. Each mode of trial has its particular characteristics and, accordingly, depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a judge-alone trial rather than trial by a jury. Of course, absent an application by an accused person, the default position will be that the trial must take place with a jury. And, no doubt, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople. Subsection (5) acknowledges this consideration. However, I see no reason why the legislation otherwise requires particular weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers it is in the interests of justice to make the order."

1. His Honour went on to say (at [99]; 26):

"In so far as the origin of a trial by jury was to provide a protection for the accused, in that he or she would be tried by their peers, where the accused applies in accordance with s 132 for a judge-alone trial, it is plain that the accused has, with proper advice, determined that the protection is not required. For this reason the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in his or her desire to dispense with a jury, must be a relevant factor..."

1. His Honour further observed (at [100]; 26) that although it was not a circumstance which applied in that particular case, the fact that it would be preferable in the interests of justice that there should be a trial by jury where an alleged offence involves the application of objective community standards had been made plain by the Parliament in enacting s. 132(5).

1. His Honour also observed (at [102]; 26-27):

"The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial."

1. In this context, his Honour went on to observe (at [107]; 27-28) that it is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result. His Honour noted that such protections included the practice that before jurors are selected, each member of the panel will be reminded of their obligation to bring an impartial mind to their decision, and after being informed of the alleged offence, the identity of the accused and the nature of the issues in the trial, asked to consider whether they can fairly consider the relevant issues.

1. His Honour ultimately came to the view that the primary judge had fallen into error in his approach to the application, and concluded that decision to order a judge alone trial should be quashed. The other members of the court (Hidden J and Hislop J) agreed that the primary judge had fallen into error and agreed with the orders of McClellan CJ at CL. Both, however, stated a preference not to express any concluded view about the wider issues raised as a consequence of the examination, by McClellan CJ at CL of the authorities. Relevantly however, Hidden J said (at [29]-[30]; [118]):

"I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in subs (5). To adopt the words of Chesterman JA in R v Fardon [2010] QCA 317, an accused cannot have a trial by judge alone "for the asking"."

CONSIDERATION OF THE ISSUES

1. The ultimate question for determination is whether or not I consider that it is in the interests of justice to grant the application made by the accused for a trial before a judge alone.

1. I am unable to accept Mr Stratton's submission concerning the provisions of s. 132(5) of the Act. It is correct that the issue of intention is not expressly included within the section as one requiring the application of objective community standards. It is also correct that there was no reference to such a matter in the Second Reading Speech. However, it will be evident from the terms of the section, and specifically from the use of the words "including (but not limited to)", that the categories of issues which might require the application of community standards are not expressed to be exhaustive, and are therefore not closed.

1. As I have previously noted the Crown relied upon observations made by Heydon J in AK (supra). The issue for determination by the court in that case arose from an asserted failure on the part of a trial judge to provide a decision, following a judge alone trial, which met the relevant criteria set out in the Criminal Procedure Act 2004 (WA). In those circumstances, Heydon J's observations were necessarily obiter. Further, Mr Stratton submitted that although his Honour was in the majority, his observations were not commented upon, much less adopted by, any other member of the Court. However that does not mean that they should be completely ignored.

1. In a footnote to his observation that an issue of intention was one that required the application of community standards, Heydon J made reference to a paper entitled "Some Simple Thoughts on Intention" [1988] Criminal Law Review 484 at 485 (Buxton) which contained the following:

"[R]ecourse to shared values and assumptions about the implications of actions and the circumstances in which those actions occur may be a safer guide to culpability than analytical deductions from a generalised verbal definition".

1. In the present case, the Crown will submit that the jury would be satisfied beyond reasonable doubt that the accused formed one of the two specific intentions applicable to a charge of murder. In doing so, the Crown will submit to the jury that they should reject the proposition that the accused's level of intoxication was such as to impair his ability to form the requisite intention. The evidence upon which those submissions will be based will not be confined to expert evidence. Leaving aside the content of the telephone conversations (which the Crown will submit exhibit an intention of the part of the accused to kill the deceased) the Crown will also invite the jury to draw inferences from aspects of the accused's behaviour, both before and after the deceased's death, which it will submit are inconsistent with an inability to form the necessary intention.

1. In determining whether there is an issue which requires the application of an objective community standard, the circumstances of the particular trial must be taken into account. The various matters to which I have referred all combine to form part of the circumstances in which the Crown will submit that the accused killed the deceased, intending to kill her, or intending to inflict grievous bodily harm upon her. Viewed in that way, the circumstances of the case put by the Crown, and the issue of intention in particular, will attract the application of objective community standards in the sense contemplated by Heydon J. In particular, the jury will be asked to have recourse to their shared values about the circumstances in which the accused's actions occurred, as well as the implications of those actions. In my view, the fact that in Belghar the issue was one of intention, and the fact that McClellan CJ at CL observed (at [100]) that such issue did not, in the circumstances of that case, require the application of community standards, does not lead to the conclusion that this will always be the case when an issue of intention is raised.

1. As I have pointed out, s. 132(5) does not seek to limit the categories of issue to which a relevant standard might be applied. Further, just as it does not seek to limit the categories of factual issues themselves, the section does not limit the court, in determining whether it is in the interests of justice to make an order for a judge-alone trial, to a consideration of whether or not the trial will involve such a factual issue. McClellan CJ at CL pointed out in Belghar that where such a factual issue does arise Parliament has expressed a preference for trial by jury. Equally however, whether a trial will involve such a factual issue is one of a number of factors which the court is entitled to take into account in determining the ultimate question of whether it is in the interests of justice to make an order under s. 132.

1. I have had regard to the views expressed by the accused in his affidavit, particularly as to the prejudice he claims he will suffer as a consequence of the pre-trial publicity to date. I unreservedly accept that the right of an accused person to a fair trial necessarily forms part, and indeed an important part, of the broader interests of justice. However, I do not accept that the nature and extent of the publicity which the trial has attracted thus far supports a conclusion that it is in the interests of justice that an order for a judge alone-trial be made.

1. Proceedings such as these will invariably attract some publicity. The nature and extent of that publicity will vary according to a number of factors. It is to be expected that an internet search using the name of the accused coupled with the word "murder" would, if undertaken, produce links to a number of articles which record earlier stages of the proceedings. The articles annexed to Mr Jamieson's affidavit obviously make reference to some matters which, it can be anticipated, will form part of the evidence in the trial. Equally, as Mr Stratton submitted, they make reference to matters which will not be the subject of any evidence at the trial, including the fact that at the time of the deceased's death, the accused had been charged with, and was on bail in respect of, other offences of violence.

1. The potential impact, upon a criminal trial, of articles published on the internet has been the subject of judicial observation. In R v K (2003) 59 NSWLR 431 Wood CJ at CL said (at 448; [80]-[82]):

"The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology.

It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve.

It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the Courts to place effective restrictions on the publication of their own proceedings is severely limited..."

1. Subsequently, in a paper entitled "The Internet and the right to a fair trial" (2005) 29 Crim LJ 331 Spigelman CJ observed:

"The right to a fair trial is protected by numerous specific practices and rules that have developed over the course of centuries of practical experience involving adaptation to changing circumstances in accordance with the classic common law process. The internet is only the most recent technological

challenge requiring a new course of pragmatic adaptation of our procedures."

1. Although, as Wood CJ at CL observed, the powers of the court to limit the availability of material published on the internet are minimal, some practices have been adopted which form part of the "course of pragmatic adaptation" of the court's procedures to which Spigelman CJ referred. One is the practice of trial judges, at the commencement of any trial, to direct the jury that they are prohibited from undertaking any research, or making any enquiry, through the internet, in relation to any aspect of the trial, be it the identity of the accused, the identity of any person named in the course of the evidence, or a variety of other matters. In this regard Spigelman CJ said (at 334):

"Model instructions for the jury have long contained references to the jury not to conduct their own research. Many of them now contain express references to searching the internet as well as refraining from using other reference material such as dictionaries."

1. Needless to say, directions in these terms will be given to the jury at the commencement of the accused's trial.

1. Further, and in light of the submission as to the publication, on the internet, of the fact that the accused was on bail for offences of violence at the material time, it is also relevant to note that in K (supra) Wood CJ at CL observed (at 446) that there have been instances in the past in which the fact that a jury member had knowledge of past convictions, or of alleged criminal behaviour on the part of an accused person, had not been regarded as being sufficient to establish bias (see R v Booth; R v Box [1964] 1 QB 430; R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56).

1. Moreover, the Parliament has seen fit to enact s. 68C of the Jury Act 1977 which renders it an offence for any juror to make an enquiry for the purpose of obtaining any information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions. A reference to the provisions of 68C will necessarily be incorporated in the directions to which I have referred which will be given to the jury at the commencement of the accused's trial. Such directions will also include a direction concerning the obligation of all members of the jury to decide the case solely on the evidence. All of these directions will be repeated at appropriate stages in the course of the trial, as well as in the summing up.

1. Bearing all of these matters in mind there is, as the Crown pointed out, a long line of authority which unequivocally supports the proposition that it is to be assumed that jurors will follow directions which are given to them by a trial judge. In Gilbert v R (2000) 201 CLR 414 McHugh J explained the proposition in this way (at 425):

"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the Common Law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves the jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having a criminal jury trial...In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the judge's directions and that they would have done so even if manslaughter had been left as an issue, as it should have been left."

1. Observations to a similar effect had previously been expressed by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 (at 603):

"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch v Attorney General (Vic) (1987) 164 CLR 15, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v R (1989) 167 CLR 94, we stated at p 99:

'But it is misleading to think that, because a juror hasheard something of the circumstances giving rise to thetrial, the accused has lost the opportunity of anindifferent jury. The matter was put this way by theOntario Court of Appeal in Reg. v. Hubbert(1975) 29 CCC (2d) 279, at p 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence'.

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge".

1. The statements in Glennon were expressly adopted by the Court of Criminal Appeal in Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [153] per Barr J (Spigelman CJ and Price J agreeing).

1. In these circumstances, I am not persuaded that the publicity surrounding the matter thus far supports a conclusion that it is in the interests of justice to grant the order sought. Put simply, the jury will be given comprehensive directions and, on the basis of the authorities to which I have referred, it will be assumed that they will follow and apply them.

1. Further, the fact that the Crown may tender photographs depicting the injuries occasioned to the deceased is not, in my view, a circumstance which supports the making of the order. Although none of the photographs which may be relied upon by the Crown at trial were tendered before me on the present application, it hardly needs to be said that in a matter of this nature, evidence of that kind almost invariably forms part of the evidence upon which the Crown will rely. In these circumstances, two particular matters warrant emphasis.

1. Firstly, the jury will be directed in terms which will emphasise the need to disregard any strong emotional response to any of the evidence, and to act according to reason. It is to be assumed, for the reasons that I have previously stated, that the jury will act upon those directions.

1. Secondly, in the particular circumstances of this case, it would appear that the Crown's reliance on such evidence will be minimal in any event. When this issue was raised in the course of submissions, I expressed to the Crown my firm expectation that in circumstances where there is no issue that the accused act(s) caused the death of the deceased, any reliance upon photographs depicting the deceased's injuries should be kept to a minimum. The Crown responded by indicating that she had formed a preliminary view that it would, in all likelihood, be sufficient to lead evidence of the deceased's injuries by description, rather than by the tendering of photographs. I am therefore satisfied that the use of photographs by the Crown will be limited. Further, and as I have indicated, the jury will be given appropriate directions in any event.

1. Similarly, to the extent that the accused may make some admission as to the ingestion of some illegal narcotic appropriate, directions will be given to the jury that no adverse inference should be drawn from that fact alone.

1. As to Mr Stratton's submission that a trial before a judge alone would be substantially shorter than would be the case if it were to proceed before a jury, there are, as I have noted, differing views about how long a trial before a judge alone might take, in comparison to the time which would be taken if the matter was before a jury. That said, the parties seem to agree that if the matter were to proceed before a jury, it would be unlikely to be completed within the original estimate of 3 weeks. Estimates as to the length of trials can often vary. They can also prove to be wildly inaccurate. I am prepared to accept that a trial before a judge alone would, by its very nature, be likely to take less time that would be the case if the matter were to proceed before a jury. However, I am simply unable to determine, with any precision, to what extent this might be the case.

1. In Belghar (supra) McClellan CJ at CL said at [110]:

"In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantage available to an accused person and the community if reasons for the verdict are available from the trial judge...For my part I would accept that as part of the mix of issues which must be considered, the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant.

The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligation on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie. Trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution."

1. The likely length of the accused's trial, and the fact that the principal (or perhaps sole) issue is that of intention, form part of the "mix of issues" which, his Honour concluded, are relevant to consider. However in my view, they are not matters which support the making of the order sought in the present case. A trial which is expected to be completed in about 4 weeks could not be described as overly lengthy, and is not likely to give rise to the type of difficulties to which his Honour made reference, and which can arise in longer trials. Moreover, both the Crown and senior counsel for the accused appear to agree that there will essentially be one issue. In my view, that issue could not be regarded as an overly complex one.

1. However Mr Stratton's submission concerning the comparative lengths of the trial went further, and extended to the proposition that I should take into account the fact that a trial before a judge alone would potentially result in the saving of costs to the community, and would ensure "the best use of scarce judicial resources". In Belghar (supra) McClellan CJ at CL, having expressed the views set out in [110], expressly rejected (at [111]) the proposition that considerations of efficiency of operation of the judicial system were relevant in determining an application under s. 132. His Honour said:

"However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case."

1. The decision of the Court of Appeal in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 to which his Honour referred was one where the court considered the provisions of s. 89(1) of the Supreme Court Act 1970 which empowered the court to order that issues of fact in a civil case be tried without a jury. Kirby P observed (at 402-403):

"The basic flaw in (the primary judge's) reasoning was in considering to be relevant as such, universal characteristics of jury trials. This was impermissible because the scheme of the legislation assumes that jury trials will continue to be available for proceedings on a common law claim such as this... It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by,Parliament when contemplating that jury trials would continue, except where the discretion under s 89(1) of the Act was exercised."

1. Samuels JA who said (at 412-413):

"... there can be no room in the exercise of this discretionfor consideration of matters which are, as the President has put it, 'of universal application to all jury trials'.

The undoubted circumstances the trial by jury is longer, and therefore more expensive, and procedurally more inflexible than trial by judge alone, are not to be taken into account. The legislature clearly must have determined to accommodate them when it provided that, in a particular class of case, a jury might be requisitioned by the act of one party.

The same characteristics entail that jury trials tend to clog up the lists and impede the expeditious trial of matters to be dealt with by a judge alone. But this again is an inevitable consequence of preserving trial with a jury. It must, once more, have been intended by the legislature that these detriments must be stoically endured as the appropriate price for the continued employment of civil juries. Whether the value of the commodity is worth the expenditure in time, money, frustration and delay is a debatable question which falls, however, outside the scope of this judgment. It is also, I venture to say, outside the scope of the discretion under discussion, whose exercise cannot, to my mind, involve considerations of how the general dispatch of business in the list can best be promoted..."

1. In these circumstances, I do not accept Mr Stratton's submission that it is open to me to have regard to the potential cost savings which would result from a trial before a judge alone. Similarly, it is not open to me to take into account the fact that proceeding in that manner may best utilise available resources.

1. For all of these reasons I am not satisfied that it is in the interests of justice to make an order that the accused be tried by a judge alone.

ORDERS

1. For the forgoing reasons I make the following orders:

(i) I grant leave to the accused, pursuant to s. 132A of the Criminal Procedure Act 1986, to make application, pursuant to s. 132 of that Act, for an order that he be tried by a judge alone.

(ii)   I dismiss the notice of motion filed by the accused on 19 March 2013.

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Amendments

01 May 2013 - The order pursuant to the Court Suppression and Non-Publication Orders Act 2012 that there be no publication of this judgment, was vacated by a further order of the court on 29 April 2013.

Amended paragraphs: Order 3, 78 (iii)

Decision last updated: 01 May 2013