R v McNeil

[2015] NSWSC 357

Supreme Court

New South Wales

Medium Neutral Citation:

R v McNeil [2015] NSWSC 357

Hearing dates:

30 March 2015

Decision date:

02 April 2015

Before:

Johnson J

Decision:

(a) The Applicant’s Notice of Motion filed 30 January 2015 is dismissed.

(b) An order is made that there be no publication of the listing of the Applicant’s trial.

(c) An order is made that there be no publication of the name of the Applicant, with the trial of the Applicant to be described in any court list as “R v AA”.

(d) Orders (b) and (c) above are to remain in force until such time as a different order is made by the trial Judge.

(e) An order is made that there be no publication of this judgment or of the evidence and submissions made on the application for Judge-alone trial, until such further order of the Court as may be made after completion of the trial.

Catchwords:

CRIMINAL LAW - application for judge-alone trial - applicable principles - interests of justice test - Applicant charged with murder and assault - whether adverse extensive media publicity will adversely affect Applicant’s trial - some 14 months between end of extensive publicity and start of trial - steps available to guard against electronic accessing of previous adverse media publicity - role of intention and credibility issues in this case - application dismissed

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Criminal Procedure Act 1986
Criminal Procedure Act 2004 (WA)
Jury Act 1977
Courts and Crimes Legislation Further Amendment Bill 2010
Crimes Amendment (Intoxication) Bill 2014

Cases Cited:

AK v Western Australia [2008] HCA 8; 232 CLR 438
Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 21 April 1988, unreported, BC8802019)
Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 24 June 1988, unreported, BC8801793)
Attorney-General (NSW) v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695
Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143
Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR NSW 242
Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52
Landsman v R [2014] NSWCCA 328
Montgomery v HM Advocate [2003] 1 AC 641
R v Abrahams [2013] NSWSC 729; 230 A Crim R 74
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25
R v Coles (1993) 31 NSWLR 550
R v Dean [2013] NSWSC 661
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v K [2003] NSWCCA 406; 59 NSWLR 431
R v King [2013] NSWSC 448; 228 A Crim R 406
R v Perry (1993) 29 NSWLR 589 at 594
R v Simmons; R v Moore (No. 4) [2015] NSWSC 259
R v Stanley [2013] NSWCCA 124
R v Villalon [2013] NSWSC 1516

Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Skaf v R [2008] NSWCCA 303
Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517

Texts Cited:

Lord Devlin, “Trial by Jury” (1966)

Category:

Procedural and other rulings

Parties:

Shaun Stewart McNeil (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr CJG Smith SC (Applicant)
Mr E Balodis (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2014/222

Publication restriction:

Publication of this judgment is prohibited until such further order of the Court as may be made after completion of the trial. Note: This order was lifted by R A Hulme J on 11 June 2015.

JUDGMENT

1. JOHNSON J: By Notice of Motion filed on 30 January 2015, the Applicant, Shaun Stuart McNeil, makes application under s.132 Criminal Procedure Act 1986 to be tried by a Judge alone.

2. The Applicant has completed an election under s.132(1) dated 29 January 2015, which certifies that he has received advice from his legal representatives in relation to the effect of an order for trial by Judge alone. Accordingly, the requirement in s.132(6) is satisfied.

3. The Crown does not agree to the Applicant being tried by a Judge alone. It falls to the Court to determine whether an order under s.132 should be made in the circumstances of this case.

Charges Against the Applicant

4. On 5 December 2014, the Applicant was arraigned on an indictment containing the following counts:

1. Count 1 - On 31 December 2013 at Sydney in the State of New South Wales he did murder Daniel Christie.

2. Count 2 - On 31 December 2013 at Sydney in the State of New South Wales he did assault Peter Christie thereby occasioning to him actual bodily harm.

3. Count 3 - On 31 December 2013 at Sydney in the State of New South Wales he did assault Jack Fynn.

4. Count 4 - On 31 December 2013 at Sydney in the State of New South Wales he did assault Tyrone Smith.

5. Count 5 - On 31 December 2013 at Sydney in the State of New South Wales he did assault Toni Gill.

5. On arraignment, the Applicant pleaded guilty to Counts 2 and 3, and not guilty to each of Counts 1, 4 and 5.

6. The trial of the Applicant is fixed to commence at the Supreme Court in Sydney on 25 May 2015.

The Present Application

7. As the application for an order under s.132 was brought more than 28 days before the date fixed for the trial in this Court, the Applicant does not require the leave of the Court to make the application: s.132A(1) Criminal Procedure Act 1986.

8. Although the s.132 application is proceeding before me, I will not be the trial Judge.

9. The bringing of the application in this way, well in advance of the trial, accords with an apparent statutory purpose that an application for a Judge-alone trial should be made (at least ordinarily) without knowing the identity of the trial Judge.

10. In the course of the second reading speech for the Courts and Crimes Legislation Further Amendment Bill 2010, which introduced s.132A, the then Attorney General, Mr Hatzistergos, said (Hansard, Legislative Council, 24 November 2010):

“The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge.”

11. It has been observed that earlier versions of ss.132-132A had been drafted to avoid the appearance that the accused person was making an election in the light of the knowledge of the identity of the trial Judge: R v Perry (1993) 29 NSWLR 589 at 594; R v Coles (1993) 31 NSWLR 550 at 552-553; R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [20]-[29].

Hearing of the Application

12. The hearing of the application proceeded on 30 March 2015. At the commencement of the hearing, an order was made, until further order of the Court, prohibiting publication of the fact that this application was being made and of the evidence and submissions made on the application.

13. Mr Smith SC, for the Applicant, read the affidavits of Daniel Covington affirmed 30 January 2015 and 9 March 2015. These affidavits annexed copies of a substantial volume of media publicity concerning the Applicant, published in both hard copy and electronic form. In addition, the Applicant tendered a Google search of the name “Shaun McNeil” conducted in Court on 30 March 2015 (Exhibit A) and a list of videos connected with that Google search (Exhibit B). An excerpt from the Channel 7 “Sunrise” program in early January 2014 was played in Court.

14. The Crown read the affidavit of Jennifer Price sworn 26 March 2015, which related to a number of items of media publicity concerning the Applicant. In addition, the Crown tendered the Crown Case Statement (Exhibit 1), paragraphs 2-13 of the Crown submissions which constituted a form of revised Crown Case Statement (Exhibit 2), a disk containing a compilation of CCTV footage recorded on 31 December 2013 (Exhibit 3) and a sketch plan of Victoria Street, Potts Point (Exhibit 4).

15. Exhibit 3 was played to the Court at the hearing.

16. There was no oral evidence on the application. Detailed and helpful written submissions had been filed prior to the hearing on behalf of the Applicant and the Crown and counsel spoke to these submissions.

The Crown Case Against the Applicant

17. The Crown case against the Applicant was described in the following way at paragraphs 2-31 of the Crown written submissions (Exhibit 2):

“2.   The Deceased, Daniel Christie, was 18 years old. During the afternoon of 31 December 2013 he and his older brother, Peter, who was 20 years old at the time made plans to go to city. They travelled by train and arrived at Kings Cross at about 7.15 pm. By 9 pm they were on Darlinghurst Rd walking in the direction of its intersection with Victoria St.

3.   The Accused and his partner, Sonya Walker also travelled to the city arriving at Wynyard at about 3pm. He consumed some alcohol on the way. They went to Jacksons on George. The Accused consumed 4 schooners of Tooheys New while they were there. They left at about 4.45pm. They spent some time in the city and walked to Kings Cross. The Accused told police that he had ‘sobered up by the time we got to the Cross. The Accused estimated that he had had 6 to 7 beers between 2 pm - 6 pm.

4.   The Accused and Walker went to Dlux Backpackers on Darlinghurst Rd. The Accused had worked with Mark Flood, a long term resident and wanted to visit him. The Accused spoke to the manager, whom he knew from previous visits. The manager gave the Accused a stubbie of Carlton draught beer.

5.   The Accused and Walker went to Flood's room. Flood was there and they all went up to the roof. Flood described the Accused as hyperactive, sociable and intoxicated.

6.   They all went up to the rooftop were there was a gathering of people. They took some Strongbow cider. The Accused stated in his ERISP that he had two strongbows and one cup of wine at the Dlux. The Accused remained up on the roof until just before 9pm. By 8.54pm the Accused and Walker were on Darlinghurst Rd. They walked in the direction of its intersection with Victoria St.

7.   Tyrone Smith, Toni Gill and Jack Fynn were together that night. They came into contact with the Accused on Darlinghurst Rd close to the pedestrian crossing and the intersection with Victoria St. They came into contact with the Accused and Walker. The accounts vary of what exactly transpired.

8.   One or more of the three offered the Accused drugs. One of the three punched the Accused to the mouth and all three allege that he hit them. CCTV footage shows that the Accused punched Fynn to the head and Fynn fell to the grounds on the footpath. The Acused [sic] then kicked Fynn to the stomach. The Accused also said that he was an ‘MMA fighter.’ Gill ran down Victoria St towards Daniel and Peter Christie.

9.   Peter and Daniel Christie had walked from Darlinghurst Rd to Victoria St. They must have passed behind the Accused. Peter Christie saw Jack Fynn sitting in the middle of the pedestrian crossing. Fynn appeared dazed. Peter and Daniel stopped 10m away, concerned with what they saw. Accused has pleaded guilty to an assault on Fynn.

10.   The Accused went to Fynn who was still on the ground. The Accused lifted Fynn from the ground. Walker yelled out to the Accused. Walker tried to pull the Accused away. Walker grabbed the Accused by the arm and said, ‘just leave it Shaun, come on let's go home.’ The Accused did not answer and broke free from her grip and went down Victoria St. Walker stayed on the corner.

11.   Peter Christie turned and saw Daniel talking to Gill. Gill said, ‘This dude has just hit all of us.’ Gill pointed to the Accused who at that time went up to Fynn and pulled him up from the ground. The Accused directed and/or pushed Fynn along Victoria St in the direction of Peter and Daniel Christie. Walker yelled out at him to come back.

12.   The Accused walked down Victoria St. He veered towards Daniel Christie. Daniel was standing with his hands by his sides. As the Accused got close to Daniel and Peter he was getting really angry and 'shaping up'. The Accused said a number of times, ‘I'm an MMA fighter.’ The Accused was also swearing and yelling.’ Daniel said, ‘what's going on?’ and/or ‘What are you hitting a kid for?’

13.   The Accused turned his attention to Daniel and said, ‘You think I'm ...’ Peter could not make out the rest. Daniel backed away and put his hands up in a defensive manner, saying ‘no, no, no, no’.

14.   Peter saw the Accused suddenly swing a ‘massive’ right hook with his right fist connecting with the left side of Daniel's head. Daniel Clancy who was in an upstairs bar in the Kings Cross Hotel saw the Accused throw a right hook that connected with the left of Daniel's chin. Daniel's head swung to the right. Both of Daniel's hands were by his side. Daniel stiffened and then fell backwards. Gill and Fynn saw the Accused punch Daniel in the face.

15.   Raymond Taylor who was out the front of the Kings Cross Hotel saw the Accused swing his right arm from his side and hit Daniel in the area of his nose with a closed fist. Daniel fell back with arms still by his side. Manas Upadhay who was in a car parked across Victoria St saw the Accused and Daniel pushing each other before the Accused punched Daniel to the head area.

16.   Daniel's body went limp and he fell to the ground hitting his head on the road. He was knocked out before he hit the ground. There was a loud crack as his head hit the road.

17.   Peter stood between the Accused and Daniel. Peter started swinging or pushing at the Accused. The Accused swung at least another punch and hit Peter in the mouth. The punch split Peter's lip. Peter stumbled back and fell to the ground. The Accused has pleaded guilty to an assault occasioning bodily harm on Peter Christie.

18.   Tyrone Smith approached a group of police at the intersection of Darlinghurst Rd and Bayswater Road and told them, ‘There is a guy punching people on Victoria Street’. They went there in response.

19.   The Accused walked back towards Darlinghurst Rd. Two security guards from the Kings Cross Hotel told the police ‘it's him, its [sic] him’ and pointed to the Accused, whom the police had run past.

20.   DSC Semken stopped and turned around and saw the Accused. He had his arms up and said, ‘I did it, I hit him.’ Constable Downy arrested the Accused. The Accused said, ‘yeah, I know. I'm sorry. He came at me first.’ And/or ‘It was a reaction he started it, I was just protecting my girl. I'm sorry. Is he alright?’

21.   The Accused was bleeding from nose and mouth and had blood on both of his hands.

22.   DSC Semken continued to walk to Victoria St where he saw Daniel Christie lying on his back on Victoria St just outside of the Mercure Hotel. An ambulance was called.

23.   The Crown case includes evidence from CCTV footage from various cameras around the scenes of the two altercations.

24.   The Accused was interviewed briefly after his arrest and later participated in an ERISP. He told police that he had been drinking all day but that he was not affected by alcohol.

25.   He met four or five men at the corner of Darlinghurst Rd and Victoria St. They offered him caps. One of them made a comment about Walker and he pushed that person away. He was hit twice in the mouth. The altercation continued and he hit out at one of them.

26.   He went around the corner because he felt that he needed to before they came back at him. There were three persons and one (or more) of them was coming quickly at him. He hit that person. He did not hit hard. It was just a quick jab. They were the same three people that had been at the corner of Darlinghurst Rd and Victoria St. He punched one out of instinct in an upper cut. He felt threatened because the person was about to hit him and because Walker was behind him. He walked back and the police had arrived.

27.   He had training in what he described as UFC (United Fighting Championship) for strength and physique and to protect himself. He had never fought in a bout.

28.   He said that the same people had been on Darlinghurst Rd as had been further down Victoria St. The same people were involved but there were two incidents.

29.   The Deceased died from blunt force trauma to the head. Many of the abnormalities identified were secondary to mass effect and severe widespread hypoxic/ischaemic damage that occurred subsequent to the primary traumatic injuries. Some of these changes may have obscured or mimicked primary traumatic injuries.

30.   Blood was taken from the Accused while he was [in] police custody. From that sample there is an opinion from Dr Perl that the Accused's blood alcohol concentration at 9pm would have been within a range of .155 to .275, with a most likely level around .195. The blood alcohol concentration could have been 10-20% lower than the recorded result because of the method of testing. Footage from a short interview with police at the time of his arrest suggests that the Accused did not indicate behaviour consistent with that level of intoxication and a high degree of tolerance was suggested.

31.   The Accused's blood was tested for steroids, the result and the available expert evidence do not provide any basis for alleging that steroid use contributed to the commission of the offence.”

The Trial Issues From the Applicant’s Perspective

18. Mr Smith SC informed the Court of what he expected to be the issues at trial.

19. After noting the pleas of guilty which had been entered in response to Counts 2 and 3, Mr Smith SC continued (T17.8-47, 30 March 2015):

“SMITH: That leaves count 1, the murder; what will be a statutory alternative of manslaughter to count 1; count 4 concerning Tyrone Smith, an assault; and count 5, Tony Gill, an assault. If I could just take those each in turn. As to count 1, the murder, your Honour should understand that it may be that, whether or not he delivered the blow, that is committed the act, may be still an issue; but your Honour would understand that the main issue on count 1 will be intention. As I understand the Crown case, the Crown does not say this is an intent to kill case. The Crown puts it as an intent to do really serious bodily harm, and that is in issue.

The statutory alternative to count 1, the manslaughter, again your Honour should understand, with respect, what I've said in relation to murder as to that the act may still be an issue. Your Honour would understand this: that on the assumption that the Crown proves the relevant act for the statutory alternative, there would not be a submission made by me that such an act was not dangerous. I will come back to dangerousness.

As to counts 4 and 5, the assaults on those two young men, the main issue is whether the Crown can prove beyond reasonable doubt that there was in fact the act as alleged.

Can I make it clear that I do not currently intend to make any submission on self defence on the assumption for the moment that there was in fact evidence in the Crown case capable of it being left. Again, I will come back to self defence in due course.

That was point one in our case.

HIS HONOUR: Does that mean it is not your intention to make any submission with respect to self defence with respect to the three matters which are defended; namely, the charge of murder or the statutory alternative of manslaughter with respect to Daniel Christie, and then the assault on Tyrone Smith and the assault on Tony Gill?

SMITH: Yes, it is.

HIS HONOUR: It applies to all of those?

SMITH: Yes, to each of the defended counts. I will speak more with respect to self defence a little bit later.”

20. With respect to the statutory alternative of manslaughter and the concept of dangerousness, Mr Smith SC said (T22.47-23.8, 30 March 2015):

“Could I make these practical submissions. On the assumption that the Crown proves beyond reasonable doubt that the accused delivered the relevant act for count 1 and the statutory alternative to count 1, there will be no submission that such an act was not dangerous. In my respectful submission, it would be bordering on the ridiculous to suggest otherwise. And that issue, that is whether it was dangerous or not, comes in the context of a one punch case where, on the Crown case, it was delivered with force from a well built man. It would be a rare case, in my submission, where there could be a more simple matter for a jury to determine in terms of dangerousness. Just to put that another way, it is so clear in this matter that it becomes not an irrelevant consideration, with respect, but a consideration which has much less weight in the mix than other matters. But clearly it's relevant.”

21. Mr Smith SC returned to the issue of self-defence in the following way (T23.14-36, 30 March 2015):

“SMITH: … I don't repeat what I said to your Honour previously about his case, but I make the submission again here, particularly on count 1. Your Honour has seen the CCTV footage this morning. On the Crown case what happens is the applicant leaves the area of the pedestrian crossing and then moves down that street around the corner, the Crown described it about 15 to 20 metres down the corner, to a position away from where the initial incident occurred to a position where the deceased and his brother was and, on the Crown case, in effect, walked up, and, as I understand the Crown case, punched him. It is open for your Honour to ask the Crown how it could be conceivable that self defence would be left in those circumstances. But, in my respectful submission, on the evidence before your Honour, I would have thought it is unlikely that it could be left on the material before your Honour.

HIS HONOUR: Another way in which self defence might be left is if it is raised as a result of some evidence in the defence case, if there is a defence case. What do you want to say about that topic?

SMITH: I think that's unlikely and highly unlikely.

But, and I say this with respect, there's a difference to a Crown position saying that it may be raised to a Crown submission to your Honour on a judge alone application that we are saying to your Honour that as a matter of law this will have to be left to a jury by a trial judge.”

22. It will be appropriate to keep these indications in mind when considering a number of submissions raised on the present application.

Relevant Statutory Provisions

23. Section 131 Criminal Procedure Act 1986 provides as follows:

“131 Trial by jury in criminal proceedings

Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.”

24. Section 132 provides:

“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.”

25. As will be seen, s.132(4) and (5) are the critical provisions on this application. Section 132(7) does not arise in this case.

26. Section 132A is in the following terms:

“132A Applications for trial by judge alone in criminal proceedings

(1)    An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2)    An application must not be made in a joint trial unless:

(a)    all other accused person apply to be tried by a Judge alone, and

(b)    each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.

(3)    An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.

(4)    Rules of court may be made with respect to applications under section 132 or this section.”

Some General Principles Concerning an Application for Trial by Judge Alone

27. It has been said that, despite the terms of s.131, there is no presumption that a criminal trial should proceed with a jury, thereby casting a burden of proof on an applicant under s.132 to displace such a presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25 [96], 29-30 [118]; R v Stanley [2013] NSWCCA 124 at [42]; R v Villalon [2013] NSWSC 1516 at [20].

28. That does not mean, however, that the choice between trial by jury and trial by Judge alone commences with a blank canvas. The Courts have recognised the important role of juries, drawn from the community, in the administration of criminal justice in this State.

29. In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ (Simpson and Price JJ agreeing) said at 262 [24]:

“The central significance of the jury in the administration of criminal justice in Australia is such that the courts should be, on any view, exceptionally reluctant to insist that the system be bypassed, even when seeking to implement the principle of a fair trial. For serious crimes a fair trial in our system of criminal justice is a trial by jury, subject to statutory exception. The community has a right to participate in the administration of criminal justice, and public confidence in that system turns to a significant degree upon that participation. Furthermore, it must not be forgotten that a fair trial is not only a trial fair for the accused, it is also a trial fair to the community represented by the prosecution.”

30. Although this statement of Spigelman CJ was made in the context of a case where s.132 in its earlier form was under consideration (where the Crown could veto a Judge-alone application by an accused person), the sentiments there expressed remain helpful.

31. Observations made by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517, in the context of a civil case, have been cited regularly in decisions under s.132. The Chief Justice said at 521 [7]:

“… decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.”

32. Considerations of the type referred to in these statements from R v Jamal and Swain v Waverley Municipal Council constitute an important factor in the exercise of discretion under s.132(4).

33. Although a s.132 applicant does not carry a burden of proof, he or she does bear an evidentiary burden: R v Stanley at [42].

34. Section 132(4) identifies the test to be applied on an application such as this. The Court may make an order for trial by Judge alone “if it considers it is in the interests of justice to do so”. That formulation confers a wide discretion on the Judge determining the application: R v Stanley at [23].

35. Section 132(5) is not an exhaustive statement of the circumstances in which an order may be refused. Rather, it provides illustrations of circumstances in which refusal may occur. The legislature has provided some specific examples to be considered in this respect. Section 132(5) acknowledges that, 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 lay people: R v Belghar at 25 [96]; R v Villalon at [20].

36. Submissions were made for the Applicant that the absence of words such as “intention” and “credibility” from s.132(5) was noteworthy and indicated a legislative intention to omit factors of that type as examples of “objective community standards”.

37. I will refer a little later to a number of decisions where “intention” has been considered in this context. For the moment, I observe that it would, in my view, be erroneous to read s.132(5) in a manner inconsistent with its terms. There may be a myriad of issues which arise in a criminal trial which may fall for consideration on a s.132 application. Section 132(5) should be construed as containing a number of illustrations which the legislature considered were worthy of mention. However, the test to be applied is the interests of justice test posed in s.132(4), with that test to be considered in the context of the particular case.

38. In forming a view as to what the interests of justice require, a balancing of various interests is required, including the interests of the parties and also larger questions of legal principle, the public interest and policy considerations: Landsman v R [2014] NSWCCA 328 at [69]. The important role of juries in the administration of criminal justice (mentioned at [30]-[33]) may be seen as touching issues of policy and the public interest, which arise for consideration in determining what the interests of justice require.

39. In R v Stanley, Barr AJ (Macfarlan JA and Campbell J agreeing) said at [42]-[43]:

“42   … The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46].

43   In weighing the concerns of the applicant the Court must have regard to any means available to allay them. The Court should also bear in mind that the interests of the accused are not necessarily the interests of justice. The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 at [7].”

40. I will refer to statements emerging from other authorities, in the context of addressing particular issues raised on the application.

The Media Publicity Issue

41. The principal issue advanced by the Applicant on the s.132 application was the prejudicial media publicity concerning the Applicant and his alleged involvement in these offences.

42. It is not necessary to recite in detail the written and oral submissions made on behalf of the Applicant and the Crown.

Overview of Submissions

43. Put shortly, Mr Smith SC submitted that the media publicity, in both hard copy and electronic form, surrounding the events giving rise to this trial is such that members of a jury panel would undoubtedly have been exposed to it. The publicity includes images of the Applicant, details of his criminal history and commentary arising from the public controversy concerning so-called one punch attacks in the Kings Cross area in 2013.

44. Senior counsel for the Applicant submitted that the media publicity suggested violent and dishonest tendencies on the part of the Applicant, often linked with inflammatory images of him. Amongst the media publicity was reference to the fact that one of his earlier convictions was for assault upon his partner, Ms Walker, who was to be a Crown witness in the trial.

45. It was emphasised for the Applicant that this material was readily available now in electronic form. The ease and speed with which it could be accessed, even after a jury is empanelled, it was submitted, speaks to the real and potential prejudice to the Applicant in a jury trial. It was submitted that carefully crafted directions cannot cure the prejudice to the Applicant.

46. The Crown acknowledged that there was a substantial volume of prejudicial media publicity surrounding the arrest and charging of the Applicant. It was emphasised, however, that the media publicity in evidence occurred very largely in the period between January and March 2014.

47. The Crown pointed to some parts of the electronic commentary concerning the Applicant which was said to be puerile and, using the words of Harrison J in R v Abrahams [2013] NSWSC 729; 230 A Crim R 74 at 94 [62], “irrational and suspect musings of faceless people intent on mischief”.

48. The Crown pointed to other parts of the media publicity, which concerned broader issues of public interest concerning the consumption and supply of alcohol in the Kings Cross area, and its interaction with violent incidents. It was submitted that public discussion of this sort was to be expected, and was also confined largely to the period up to March 2014.

49. The Crown emphasised the significant passage of time since the material in question was first published, and the availability and capacity of jury directions to address concerns which the Applicant may have.

50. Reference was made to s.68C Jury Act 1977 which would apply to the jury once empanelled, thereby prohibiting any enquiry, including internet searching, during the course of the trial.

Decision Concerning Media Publicity

51. It is appropriate to provide some examples of the media publicity to which the Court was taken on the hearing of this application, to give the flavour of the material relied upon by the Applicant.

52. The material falls into several categories:

1. online articles referring to the Applicant’s criminal record and associating him with violence;

2. online video clips with similar content;

3. newspaper articles with similar content;

4. a Facebook page in the Applicant’s name which is said to be a fictional profile set up by unknown people.

53. An online article of “The Daily Telegraph” of 1 January 2014, reporting the Applicant’s first court appearance, stated (Annexure A, affidavit, Daniel Covington, 30 January 2015):

“McNeil wept in court during his initial hearing yesterday.

Sydney should weep instead that someone with McNeil’s extensive criminal history, which includes several convictions for violence, should have been allowed to mix with innocent and vulnerable citizens on one of the biggest nights of the year.

The presence of so many repeat violent offenders in open society is like permitting drunk drivers on our roads, and leads to the same dreadful conclusions.”

54. The Applicant’s Facebook page included words said to have been written by the Applicant (Annexure B, page 6):

“Monsters don’t sleep under your bed, they sleep inside your head.”

55. A later entry on on 3 January 2014 (Annexure C, page 2) asserted that the words in the preceding paragraph were uploaded to the Facebook page on Christmas day, and were sourced from Heath Ledger’s character “The Joker” in the movie “Batman”.

56. In the same article, the following appeared:

“A former colleague at Sydney City Removals, who did not want his name published, said Mr McNeil often spoke to him about taking and selling drugs.

He also said he had boasted about being a member of the Rebels motorcycle club’s Rhodes chapter and showed colleagues photos of himself in the club’s patches.”

57. A “Daily Telegraph” online article on 4 January 2014 included the following (Annexure H, page 3):

“McNeil’s shocking criminal record, obtained through tendered court documents made available to The Daily Telegraph, reveals four assaults, at least two of them on women, breaching two apprehended domestic violence orders, breaching a good behaviour bond through excessive drinking, possessing a knife and possessing drugs.”

The Applicant’s criminal history was set out in the same article.

58. The same article referred to the Applicant’s offence allegedly committed against his partner, Ms Walker (Annexure H, pages 6-7):

“Ms Walker, 25, who this week told The Daily Telegraph that her partner was loving and caring, became one of his victims when he assaulted her on New Year’s Eve 2011.

Court documents show the couple had an argument over her clothing in the Scary Canary Hotel on Kent St in the CBD about 1am. As they walked home to their then-unit in Kent St, McNeil pushed her up against a street pole and squeezed her so hard she had difficulty breathing.

Two passers-by came to her aid but when they left, McNeil pushed her into a concrete wall.”

59. A newspaper article in “The Daily Telegraph” on 2 January 2014 contained extensive coverage (including photographs) over several pages, of the Applicant and Daniel Christie. One article concerning the Applicant was headed (Annexure V):

“Gym junkie into martial arts, rappers and selfies.”

60. A newspaper article in “The Daily Telegraph” on 3 January 2014 included the following concerning the Applicant’s assault on Ms Walker (Annexure Z):

“Police told Ms Walker she was too intoxicated to make a statement at that time and to go home. They told McNeil to stay away from the unit until later that day. However, police had to be called again when he ignored their warning. McNeil was placed on a 12-month good behaviour bond for that assault.

Court documents reveal another victim was a female friend he met at a local RSL club. CCTV footage captured him grabbing her by the throat.

McNeil was arrested sitting in the RSL bar where he handed police a black-handled pocket knife from his pocket that he told them was for self-defence.”

61. As mentioned earlier, a video clip of the Channel 7 “Sunrise” program in early January 2014 was played in Court (Annexure R). The item concerning the Applicant included the following discussion:

“Reporter: his alleged attacker 25 year old Shaun McNeil was refused bail yesterday in Parramatta local court yesterday, he apparently cried when that happened. That's not the state of mind he was in on New Year's Eve, the 25 year old was boasting to people that he was a mixed martial arts fighter, he allegedly punched four other people that night including Daniel Christie's brother who sustained a split lip.

Presenter: Is there any other background to the attacker, was he on a bond for similar offence?

Reporter: Yes he has been known to commit similar offences, he has also been held up for dishonesty arrests in the past, as well he does have a criminal history he has a history of violence also.

Presenter: Obviously huge parallels to Thomas Kelly's death. It supposed to be unprovoked, we read yesterday he was bending over to help someone else.

Reporter: That's right, four other people had been punched by allegedly been punched by Shaun McNeil that night, Daniel Christie and his brother was going to the aid of somebody else that had been punched. It was according to witnesses entirely unprovoked, it was a single closed fist to the face … There are parallels to Thomas Kelly's case in July 2012 the main difference in this case thought they caught the alleged attacker immediately.

Presenter: let's hope the court system really comes through on this"

62. The fictional Facebook page (mentioned at [52](d) above) contains comments, as does a website (Reddit Australia) where people post comments about particular topics (Annexures AG, AI, Daniel Covington affidavit, 30 January 2015; Annexure B, Daniel Covington affidavit, 9 March 2015). Examples of these are:

“Feed the coward to the pigs. This scum is doing min 10 years if not I’m starting a riot on the streets.” (11 January 2014)

Give him life in jail make the coward suffer. Death is the easy way out.” (12 January 2014)

“Fucking parasite loser piece of shit. Too scared to put his case to the people so hoping for some soft judge to let him off. Cunt.” (12 February 2015)

63. Reference was made as well to the second reading speech for the Crimes Amendment (Intoxication) Bill 2014, which included the following comments by the Attorney General (Hansard, Legislative Assembly, 26 February 2014):

“Then, on New Year’s Eve, Daniel Christie became the latest victim, fatally hit in Kings Cross, in the same street where Thomas Kelly was struck - in fact, very close to the spot where Thomas Kelly was struck. Daniel Christie died on 11 January. It is a quiet street and it has many trees that block camera vision, so no record of the assault was available. That assault emphasised to the people of this State the senselessness of the people who are full of drugs and/or alcohol when they start belting other people.”

64. Adverse and sensational media publicity occurs from time to time in the context of cases which have achieved some notoriety. Spigelman CJ touched upon some of these in R v Jamal at 261 [16]:

“16    This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D’Arcy, Bruce Burrell. (See Murphy v The Queen (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D’Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)”

65. The Chief Justice continued in R v Jamal, emphasising that the Courts “have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice”. The Chief Justice said at 261-262 [17]-[21]:

“17    I have had occasion to summarise the relevant case law in the following manner, applicable to the present case, in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344:

‘[103]    There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.’

18    There are now numerous judicial statements as to the validity of such an approach.

19    Going back, for example, as Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7:

‘The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.’

20    Furthermore, as McHugh JA said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425:

‘[31] … 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 criminal jury trials.’

21    The perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years. (See R v Milat; R v Bell; Long v R; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko; R v D’Arcy; R v Burrell supra.)”

66. The lapse of time between media publicity and the trial itself is a significant factor. In Montgomery v HM Advocate [2003] 1 AC 641, Lord Hope of Craighead said at 673:

“Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: part Two, vol 1, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdicts."

67. In Skaf v R [2008] NSWCCA 303, the Court of Criminal Appeal (McClellan CJ at CL, Hidden and Howie JJ) referred to the new dimension flowing from the internet in the area of media publicity. Their Honours said at [27]-[28]:

“27    The problem of publicity given to an alleged offence and the offender has been considered by the courts on many occasions. Sometimes the publicity has caused a court to defer a trial for a period. The assumption which the law makes is that the public’s memory of publicity will fade with time and accordingly after sufficient time, jurors will have no difficulty in confining their deliberations to the evidence. It is of course inevitable that there will be cases where, either because of the extent of the publicity, or, because of the peculiar or sensational nature of the facts, even if the public memory has subsided, when the evidence is tendered at a trial recollections of previous publicity will return. The internet has given a new dimension to these problems. Newspaper articles which provide an account of various events including allegations of criminal activity or a report of the evidence and verdict in criminal trials can now be retrieved, effectively forever. The law must accommodate these issues whilst ensuring a process which is fair both to the accused and the prosecution.

28    Apart from occasions when a trial is delayed to distance it from publicity, trial judges always tell jurors to confine their consideration to the evidence in the proceedings. If a trial has previously attracted or is likely to attract publicity, judges are careful to remind jurors that they are to ignore any publicity. The contemporary view is that it is not necessary for the jury to be sequestered with exposure to the media thereby eliminated. We accept that jurors will be faithful to the directions given by the trial judge and, if they happen upon a media discussion of the events, will be able to discriminate between the evidence and media reporting of the events.”

68. Reference should be made at this point to s.68C Jury Act 1977, which provides:

“68C    Inquiries by juror about trial matters prohibited

(1)    A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2)    This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.

(3)    This section does not prohibit a juror:

(a)    from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or

(b)    from making an inquiry authorised by the court.

(4)    Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

(5)    For the purpose of this section, making an inquiry includes the following:

(a)    asking a question of any person,

(b)    conducting any research, for example, by searching an electronic database for information (such as by using the Internet),

(c)    viewing or inspecting any place or object,

(d)    conducting an experiment,

(e)    causing someone else to make an inquiry.”

69. In Skaf v R, their Honours returned to the internet, and the role of s.68C Jury Act 1977, at [46]:

“As indicated above the internet is an ongoing problem for the criminal justice system. The law has developed some strategies intended to deal with the situation. Model directions have been formulated following the decisions in R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 and R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 and s 68C Jury Act 1977 came into operation on 15 December 2004 prior to this trial. In her opening remarks to the jury the judge gave these directions. In his submissions to the trial judge on the stay application, counsel for Mohammed Skaf conceded ‘The concern is not publicity or what is is [sic] available on the Internet today because your Honour will give directions in relation to that. It is the publicity which is already out there and whether a direction at the start of the trial can remove that from the psyche of the jury as of today’.”

70. The vast bulk of hard copy and electronic reporting of this case occurred in January, February and March 2014. There was some limited coverage in November 2014 of the fact that the Applicant had been committed for trial (Annexures Q, T, BB-BE, BQ-BS, Affidavit, Daniel Covington, 30 January 2015).

71. The fictional Facebook page and the comments on the Reddit Australia site do not, in my view, loom large on the present application. The description given by Harrison J in R v Abrahams to similar material is apt to this matter (see [47] above).

72. I accept that the publicity in the period January to March 2014 was very extensive and strong in content. It was prejudicial to the Applicant in a number of respects, including reference to his criminal history.

73. The publication of the criminal history of an accused person or other adverse material about that person has, in the past, attracted the law of contempt: Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 149-151; Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 21 April 1988, unreported, BC8802019); Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 24 June 1988, unreported, BC8801793). Application of the Bread Manufacturers principle (Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR NSW 242) has been accepted in contempt cases where matters of public interest are being discussed: Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney-General (NSW) v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695).

74. However, publication on the internet of the criminal history of an accused person, and the fact that a jury member had knowledge of past convictions or of alleged criminal behaviour on the part of an accused person, is not regarded necessarily as being sufficient to establish bias: R v K [2003] NSWCCA 406; 59 NSWLR 431 at 446 [67]; R v King [2013] NSWSC 448; 228 A Crim R 406 at 417 [60].

75. It is necessary to have regard, in particular, to the passage of time since the publications were made.

76. As was said in Skaf v R at [27] (see [67 above]), the age of the internet means that what was once newspaper, television and radio coverage that faded in time, could now see the very same articles and programs electronically available via the internet.

77. I do not consider that the media publicity, as strong as it was, is a decisive consideration in circumstances where some 14 months would have passed between the end of that phase in March 2014 (subject to limited coverage of the committal proceedings) and the commencement of the trial in late May 2015.

78. The circumstances of current concern relate to:

1. whether members of the jury panel may engage in any electronic searching with respect to the Applicant prior to the time when a jury is empanelled; and

2. whether the jury as empanelled may engage in electronic searching.

79. The short answer to the second area is that the jury as selected will have passed through a process, prior to empanelment, where it may be expected that the trial Judge will explore this issue and any difficulty that potential jurors may have in fairly determining the case: R v Stanley at [35]. The empanelled jury will be subject to s.68C Jury Act 1977, and directions which the trial Judge will give during the trial itself. As the Court of Criminal Appeal observed in Skaf v R at [46] (see [69] above), the existence of s.68C, and the giving of judicial directions to the jury, constitute an appropriate response to the second area of concern.

80. As Basten JA (Bathurst CJ and Whealy JA agreeing) observed in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at 69-70 [62]-[63]:

“62 The obligation of a juror, encapsulated in the oath or affirmation, is to ‘give a true verdict according to the evidence’: Jury Act 1977 (NSW), s 72A. It is an offence for a juror to ‘make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror’: s 68C(1). The words ‘making an inquiry’ include conducting any electronic search of a database for information: s 68C(5)(b). That language extends to ‘causing someone else to make an inquiry’: s 68C(5)(e). The standard direction given to juries at the beginning of a trial covers that negative obligation.

63   These provisions demonstrate the impropriety of a juror obtaining information outside the course of the trial, which might potentially affect his or her view of matters in issue during the trial.”

81. The first area of concern (at [78](a)) gives rise to different considerations. Is there a realistic prospect that members of the public, who may be on the jury panel, will conduct electronic searches concerning the Applicant between now and the time of the trial?

82. It is difficult to see that any recent or current event would be likely to trigger electronic searching of that type.

83. It may be said that members of the jury panel might consider such an enquiry if there is some media publicity of the forthcoming trial of the Applicant. Is there any step which the Court may take to allay concerns which may arise in this respect in accordance with what was said in R v Stanley at [43] (see [39] above)?

84. An approach which is open to the Court is to make an order prohibiting publication of the pending trial of the Applicant, with such an order to remain in place until such time as the trial Judge has made any other order once the trial is underway. This may be accompanied by a pseudonym order so that the Applicant’s name will not appear in the Court list. Orders of this type may operate to prevent media publicity itself becoming a trigger to electronic searching by members of the community, who may be members of the jury panel.

85. I am satisfied that a combination of steps may be taken to guard against the impact of previous adverse media publicity in the circumstances of this case. I do not consider that the media publicity requires, in the interests of justice, an order for trial by Judge alone in this case.

86. It will be necessary to consider the discretionary question posed by s.132(4) and (5) by reference to the cumulative assessment of issues raised in support of the application. For the moment, however, the critical aspect of the application based on adverse media publicity does not, in my view, lead to an order for trial by Judge alone.

The Intention Issue

Overview of Submissions

87. Mr Smith SC outlined the way in which intention would be an issue in the trial. If the Crown established that it was the Applicant who struck a blow to the head of Daniel Christie then, before a conviction for murder could result, it would be necessary for the Crown to prove beyond reasonable doubt that the Applicant struck Daniel Christie with intent to inflict grievous bodily harm: s.18(1) Crimes Act 1900.

88. Mr Smith SC advanced a submission that intention did not fall within s.132(5). He relied upon certain authority in support of this proposition, and submitted that other cases which had found to the contrary ought not be followed.

89. The Crown submitted that the intention of the Applicant when striking Daniel Christie was an issue in the trial, and that the determination of whether he had an intention to do grievous bodily harm will require the application of community standards. The Crown referred to authority in support of this proposition.

Decision Concerning Intention Issue

90. The starting point on this issue is strong obiter dicta of Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at 472-473 [95]. In the course of providing other examples of factual issues requiring the application of “objective community standards” in s.118(6) Criminal Procedure Act 2004 (WA). Heydon J referred to the question “whether an accused person had a particular intention”. Gummow and Hayne JJ at 451-452 [38] agreed generally with the reasons of Heydon J.

91. The Court of Criminal Appeal, and single Judges, have considered the role of intention in s.132(5). Mr Smith SC relied upon passages in R v Belghar at 24-26 [90]-[100] and in the decisions of Harrison J in R v Abrahams at 96-97 [71]-[77] and of Hamill J in R v Simmons; R v Moore (No. 4) at [61]-[66].

92. The Crown referred to passages in R v Stanley at [56]-[61], R v Dean [2013] NSWSC 661 at [58]-[59] and of Bellew J in R v King at 415-416 [48]-[53].

93. In my view, the intention issue in this case may be characterised as one involving application of objective community standards: AK v Western Australia at 473 [95]; R v Stanley at [55]-[59]; R v King at 415-416 [48]-[53]; R v Dean at [58].

94. In the present case, the question which arises is whether, if the Crown establishes that the Applicant struck Daniel Christie, whether he did so with an intention to inflict grievous bodily harm. An assessment of this issue will involve an examination of all the evidence bearing upon that question and the drawing of inferences, if the evidence permits to the criminal standard. Directions concerning the drawing of inferences, for the purpose of determining an issue of intention are common directions in criminal trials, including a murder trial.

95. I have no difficulty in characterising an assessment as to intention in a criminal trial such as the present as being a matter falling within s.132(5). I have observed earlier that the absence of the word “intention” in s.132(5) provides limited assistance to the Applicant’s argument. The provision is non-exhaustive and, in a context such as this, may readily accommodate an issue of intention.

90. The fact that this issue would fall for consideration by 12 persons as opposed to one person, a Judge, is a factor which operates in favour of the jury being the tribunal of fact in this case.

91. Having regard to the indication by senior counsel for the Applicant that there would be no live issue in the trial concerning dangerousness with respect to the statutory alternative of manslaughter, I do not consider it necessary to address that issue on this application.

The Credibility Issue

98. This issue may be dealt with relatively briefly.

99. Mr Smith SC submitted that, as with intention, credibility was not a term used in s.132(5) and it could not fall within the concept of objective community standards for that purpose. Submissions were advance by reference to a number of authorities.

100. The Crown submitted that the credibility of witnesses, and evidence generally, was a matter which fell within s.132(5) so that it could be taken into account for the purpose of determining whether an order for trial by Judge alone should be made.

Decision Concerning Credibility Issue

101. It is true that the word credibility does not appear within s.132(5).

102. Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence.

103. Like Latham J in R v Dean at [59], I would call in aid the statement of Lord Devlin in Trial by Jury (1966), page 140, cited by Heydon J in AK v Western Australia at 472 [94]:

“Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility [78]:

‘[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers’.”

104. Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant’s trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury.

Conclusion

105. I have had regard to all factors bearing upon the exercise of discretion under s.132(4) as identified in this judgment.

106. For reasons expressed earlier, I do not accept the Applicant’s submission that the interests of justice call for a Judge-alone trial in this case. The substantial adverse publicity with respect to the Applicant will be significantly remote in time by 25 May 2015. Steps may be taken, between now and the commencement of the trial, to avoid any public trigger which may lead to members of the public (including the jury panel) engaging in electronic searching concerning the Applicant. The processes involved in the empanelment of a jury and the directions which the trial Judge will give, together with the operation of s.68C Jury Act 1977, will allow the Applicant to receive a fair trial by a jury comprising members of the public exercising an important role in the administration of criminal justice.

107. The additional arguments advanced on the application by reference to the issues of intention and credibility do not advance the Applicant’s case for an order for trial by Judge alone.

108. In my opinion, it is not in the interests of justice to make an order for trial by Judge alone in this case.

109. The Applicant’s Notice of Motion filed 30 January 2015 should be dismissed.

110. As foreshadowed earlier in this judgment, I am satisfied, for the purpose of s.8(1)(a) Court Suppression and Non-Publication Orders Act 2010, that an order is necessary to prevent prejudice to the proper administration of justice with that order being to the effect that there be no publication of the listing of the Applicant’s trial, nor any publication of the name of the Applicant, with those orders to remain in place until such time as a different order is made by the trial Judge.

111. Accordingly, I make the following orders:

1. the Applicant’s Notice of Motion filed 30 January 2015 is dismissed;

2. I order that there be no publication of the listing of the Applicant’s trial;

3. I order that there be no publication of the name of the Applicant, with the trial of the Applicant to be described in any court list as “R v AA”;

4. Orders (b) and (c) above are to remain in force until such time as a different order is made by the trial Judge;

5. I order that there be no publication of this judgment or of the evidence and submissions made on the application for Judge-alone trial, until such further order of the Court as may be made after completion of the trial.

112. I will request the Court’s Media Manager to bring these orders and this judgment to the attention of the media and I vary the above non-publication orders to allow this process to occur.

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Decision last updated: 12 June 2015