R v Pambris (No 2)

[2018] NSWDC 82

District Court

New South Wales

Medium Neutral Citation:	R v Pambris (No 2) [2018] NSWDC 82
Hearing dates:	20 February 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Application for trial by judge alone is granted
Catchwords:	CRIMINAL LAW – Judgment – Application for trial by judge alone – Accused’s defence involves him admitting to being a drug supplier
Cases Cited:	R v King (2013) NSWSC 448
Category:	Procedural and other rulings
Parties:	The Crown Steven Pambris
Representation:	Counsel: G. Gee – The Crown M. Ainsworth – The accused   Solicitors: Director of Public Prosecutions – The Crown Astoria Lawyers – The Accused
File Number(s):	2015/126486
Publication restriction:	There is to be no publication of the correct name of Spiros Dimakos (a pseudonym) or of any material which may tend to identify him.

Judgment

1. HIS HONOUR: Having granted leave to the accused to bring an application for trial by judge alone, attention turned to the substantive issue. The accused Steven Pambris is charged with having taken part in a home invasion. He denies doing so.

2. The Crown case largely consists of evidence from the person who the Crown says was his co-offender, a Mr Dimarkos. Mr Dimarkos has pleaded guilty, been sentenced and has received a reduced sentence for having promised to assist the authorities. The Crown also relies on some evidence of telephone calls having been made between both Mr Dimarkos and the accused, and also Mr Dimarkos and the undoubted victim of the offence of home invasion, a Mr Steven Emerton. Mr Pambris will, thus, need to explain the nature of his relationship with Mr Dimarkos. Mr Ainsworth tells me that the nature of that relationship is that Mr Pambris was a supplier of drugs to Mr Dimarkos.

3. Mr Pambris has also been charged and pleaded guilty to dealing with the proceeds of crime. The items the subject of those offences came from the home invasion. The Crown says, of course, that Mr Pambris had them in his possession because he participated in the offence. Mr Pambris, on the other hand, says he has them in his possession because Mr Dimarkos paid for some drugs with those items.

4. Mr Ainsworth, thus, puts the application for trial by judge alone on the basis that his client is much more likely to get a fair trial if a judge who is used to dealing with matters of this kind determines the guilt or otherwise of his client, rather than a jury.

5. In response, the Crown, quite accurately, points out that the criminal law proceeds on the assumption that juries follow judges’ directions. However, the criminal law also recognises that juries are not immune from prejudice and do not always act logically. There are many examples in the criminal law where courts recognise that juries may act illogically. The very fact that there are judicial discretions concerning the admissibility of evidence which relate to the risk of unfair prejudice is testament to that.

6. The Crown also points out that this is not just simply a matter of whether conclusions can be drawn from undisputed evidence but the very credibility of Mr Dimarkos is at stake. The Crown also points out that trial by a jury is the way we have done things for many, many years and a decision to abandon that traditional method of trial is not lightly to be undertaken.

7. I am satisfied that the interests of justice require that the application be granted. The risk is that the jury will regard Mr Pambris as a man of very bad character and, thus, take that into account in assessing whether he is guilty of the home invasion offence. Even if I were to direct the jury that they must not do that, there remains a considerable risk that not every juror will follow my direction or perhaps that not every juror will be conscious of prejudices which operate upon them.

8. As far as assessing credit is concerned, I know nothing to suggest that twelve jurors are better at doing that than a single judicial officer. Indeed, as I pointed out in the course of argument, magistrates do it on a daily basis.

9. I should say something about a decision that the Crown relied on, a first instance decision of Bellew J in R v King (2013) NSWSC 448. Decisions such as that are useful for reminding me of the principles, but they are less useful as a comparison of a factual basis for the application. One of the principles which Bellew J, correctly, with the greatest of respect, identifies is that judicial resources and the efficiency of a trial are matters which are not to be taken into account in an application of this kind.

10. I do have to say that the law would be better if such matters could be taken into account. I can illustrate it by speaking about what would happen if this trial were not a judge-alone trial. My availability over the next few days is limited indeed and there is a risk that if this trial was before a jury, I would not start it. There is an associated risk that there would be no judge to start the trial, with the result that it may well have been that a refusal to grant the application made by Mr Ainsworth would result in the vacation of this trial date and an associated delay of perhaps nine months before the trial would commence.

11. I emphasise, of course, that I have followed what the law requires and ignored those practical aspects of the application in making my decision. I have made the comments that I have only because I do not consider that the law should be as it is. In my view, the law should be able to take into account efficiencies in trial process and listing arrangements in deciding whether to grant an application for trial by judge alone.

12. The trial will be before me or another judge without a jury commencing at 2.15 today.

**********

Decision last updated: 06 April 2018