R v Simmons; R v Moore (No 4)
[2015] NSWSC 259
•19 March 2015
|
New South Wales |
Case Name: | R v Simmons; R v Moore (No 4) |
Medium Neutral Citation: | [2015] NSWSC 259 |
Hearing Date(s): | 9-10, 18 March 2015 |
Date of Orders: | 19 March 2015 |
Decision Date: | 19 March 2015 |
Jurisdiction: | Common Law - Criminal |
Before: | Hamill J |
Decision: | (1) Leave pursuant to s 132A Criminal Procedure Act 1986 (NSW) is granted. |
Catchwords: | CRIMINAL LAW – trial by judge alone – application out of time – whether leave should be granted – appearance of judge shopping – unedifying spectacle – no judge shopping in present case – leave granted – “interests of justice” – factors to be taken into account – whether the issue of intention requires the application of objective community standards – whether jury has advantage over judge in assessing issues of credibility – jury as “the lamp that shows that freedom lives” – prejudicial evidence – where accused required to introduce evidence to conduct his defence – whether direction to jury capable of curing prejudice – “judicial wishful thinking” – application granted |
Legislation Cited: | Criminal Procedure Act 1986 (NSW) |
Cases Cited: | AK v Western Australia [2008] HCA 8; 232 CLR 438 |
Texts Cited: | Bagaric, Mirko, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 |
Category: | Procedural and other rulings |
Parties: | Crown |
Representation: | Counsel: |
File Number(s): | 2013/150652013/17269 |
Publication Restriction: | This judgment is redacted in accordance with non-publication orders made in R v Simmons (No 5) [2015] NSWSC 333. An un-redacted version is available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS). |
JUDGMENT
Part way through a pre-trial voir dire hearing, Tony Simmons (“the accused”) and Kieran Moore (“Mr Moore”) applied for an order under s 132 of the Criminal Procedure Act 1986 (NSW) that they be tried by judge alone. The application was foreshadowed for the first time by the accused on Monday 16 February 2015 at the commencement of the voir dire concerning the admissibility of admissions or statements against interest made by each of them (T 10).
The matter was raised for a second time towards the end of the eighth day of the voir dire (3 March 2015). Shortly before 1pm on Wednesday 4 March 2015, Mr Moore was granted leave to file in Court an election under s 132 along with a notice of motion and supporting affidavit. Mr Young SC, who appears for the accused, asked for time “to give my client one further opportunity to consider his position, having heard your Honour’s judgment” (T 314). This was a reference to the judgment that I delivered that morning in relation to the admissibility of admissions made by the accused to undercover police officers: R v Simmons; R v Moore (No 2) [2015] NSWSC 143 (“Simmons (No 2)”). Shortly after lunch, the accused filed in court a notice of motion and supporting affidavit.
The issue was stood over until 9 March to enable the Crown to consider its position. The Crown’s position was complicated. However, the Crown did not consent to a trial by judge alone and so it is necessary to determine whether a judge alone trial is “in the interests of justice”: s 132(4). I heard argument in relation to the application on 9 and 10 March 2015. Further evidence on the application was adduced on 18 March 2015 and further submissions were received on 16 and 18 March 2015.
On Tuesday 10 March 2015 I made rulings excluding statements against interest and admissions made by Mr Moore: R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (“Simmons (No 3)”). On Friday 13 March 2015 the Crown indicated that the Director had ordered no further proceedings in relation to Mr Moore. He was discharged on the indictment and his application for a judge alone trial abated. I understand that he is now to be a prosecution witness.
The accused read an affidavit of his solicitor (Matthew Lorkin) affirmed 4 March 2015 and a further affidavit of Mr Lorkin affirmed 9 March 2015. Substantial portions of the second affidavit were not pressed (T 429-431). In addition to the affidavit evidence, the parties agreed that it was necessary to receive all of the evidence that had been tendered on the pre-trial voir dire: see Simmons (No 2) at [46] - [50] and Simmons (No 3) at [13].
This comprises a 13 volume brief of evidence (Ex VD 1) as well as 14 separate exhibits (Ex VD 2 – VD 15). Neither party made any reference to Ex VD 2 - VD 15. The parties did not identify with any precision the parts of the 13 volume brief that are relevant to this application. When the matter was first argued, it was unclear which parts of Ex VD 1 will actually be adduced in evidence at the trial and it seemed that the accused had not consulted with the Crown to determine the evidence that the Crown intended to lead (T 425-6, 429-430, 432-434). Submissions were made in relation to parts of the evidence that the Crown Prosecutor later indicated would not be lead at the trial. Following a concession by the Crown on the final day of the first voir dire, it is known that a large amount of the listening device material considered in Simmons (No 2) will not be led at the trial: R v Simmons (No 2) at [151].
In the absence of a clear understanding of the material to be led at the trial, it was not possible to make a reasoned assessment of where the “interests of justice” lay. The matter was adjourned to allow the parties time indicate what would, and what would not, be led in the trial proper.
Exhibits VD 16, 17 and 18 were tendered on Wednesday 18 March and it is now tolerably clear, at least for the purpose of this application, what evidence is to be led at the trial.
RELEVANT LEGISLATION
Sections 131 – 132A of the Criminal Procedure Act 1986 (NSW) provide:
“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.
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.
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.”
These sections replaced earlier provisions providing for a judge alone trial on 14 January 2011. Section 132 was previously in the same terms as the repealed s 16. Section 16 had, in turn, replaced s 32. The previous provisions (ss 16, 32 and 132) were in substantially the same terms as one another. The introduction of the current version of ss 132-132A made two significant changes to the law. Under the previous regime, a judge alone trial could not be ordered unless an election was made “before the date fixed for the person’s trial”. This requirement was mandatory: R v Perry (1993) 29 NSWLR 589 at 593-594. Attempts to circumvent it (by adjournment of the trial date) were frowned upon although sometimes succeeded: see R v Coles (1993) 31 NSWLR 550 at 553-554. Section 132A maintains the requirement that applications be made in a timely fashion. Applications must be made “not less than 28 days” before the trial date “except with the leave of the Court”.
The second change introduced by s 132 concerns the requirement under s 32(3) that the accused could only elect for a judge alone trial if the Director of Public Prosecutions consented. This change was “introduced to remove the former veto power held by the prosecution”: R v Abrahams [2013] NSWSC 729 at [10]; New South Wales Legislative Council, Courts and Crimes Legislation Further Amendment Bill 2010, Second Reading Speech (Hansard), 24 November 201 at 28073.
WHETHER LEAVE SHOULD BE GRANTED
The parties concede that leave under s 132A is required. The Crown does not oppose the grant of leave. In spite of the Crown’s position, the question of whether leave should be granted in the present case is a live one. The application is tardy in the extreme.
From the time the trial date was fixed (16 February 2015), the case was mentioned in the arraignments list on four occasions in the second half of 2014. At no stage was the presiding Judge given any indication there may be an application for a judge alone trial.
On 4 July 2014, Johnson J confirmed the trial date of 16 February 2015 with a 12 week estimate. It was indicated that there would be pre-trial issues of some substance. Johnson J asked a number of questions in the course of that mention as to the logistics of the hearing and how its smooth running might be facilitated.
On 5 September 2014, the matter was again before Johnson J in the arraignments list. Notices of motion had been filed by both accused concerning the objections taken to parts of the prosecution brief. Johnson J anticipated the difficulties that may arise given the length and complexity of the proposed voir dire and observed that jury panels had been organised for 16 February 2015. His Honour vacated the listing of the trial date and listed the pre-trial motions for 16 February 2015 with the trial to follow. No suggestion was made on 5 September 2014 that, depending upon the resolution of the objections that were to be raised on the voir dire, an application for trial by judge alone may follow the pre-trial hearing.
The matter came before Fullerton J on 3 October 2014. Mr Stratton SC, appearing on behalf of Mr Moore, but speaking on behalf of all parties indicated that the parties “would be keen to proceed from the pre-trial applications into trial.” Her Honour confirmed the date for the pre-trial applications and enquired whether there was any possibility of using something described as “judge time” in the final months of 2014 to facilitate the smooth running of the pre-trial and trial proceedings. None of the parties were available and her Honour simply confirmed the date for the pre-trial hearing, noting that the trial would proceed after rulings on the voir dire were made. Nothing was said to suggest that the trial would be anything other than a jury trial.
Finally, the matter came before Johnson J on 5 December 2014. On that date his Honour announced that I was to be the trial judge. Mr Stratton SC again said “could I confirm my understanding that at the moment the matter is set down for pre-trial hearings … with a view to the trial starting shortly thereafter?” Mr Young SC agreed with the proposition that the 12 week estimate may “get shorter but not longer” although he confirmed it was necessary to maintain the 12 week listing to be “a bit cautious”. However, he expressed the view that “it would be less than that”. His Honour asked the parties whether anything else needed to be raised. Nothing was.
Arranging for the attendance of sufficient jury panels to ensure that a trial commences is a matter of some administrative and logistical difficulty. It involves summonses being sent out and significant effort on the part of the Sheriff of New South Wales. Courtrooms with appropriate facilities must be organised and scarce resources allocated accordingly. Members of the public are inconvenienced and no doubt anxious about the prospect of serving on a jury.
For that reason, it is important when matters are mentioned before the arraignments judge that the parties provide a clear account of the issues anticipated. Where an application for a judge alone trial is contemplated, it is important for the list judge to know that. It may be that that application can be dealt with in the list court so that it is not a matter determined by the judge who may ultimately preside at such a trial.
The purpose of s 132A(1)—and s 32(4) before it—is to avoid the appearance (or actuality) of “judge shopping”. In Perry v The Queen, Gleeson CJ said (at 594):
“I have no doubt that one of the legislative purposes underlying s 32(4) of the Criminal Procedure Act is concerned with an important matter of appearances. One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused person were making such election in the light of the knowledge of the trial judge.”
See also R v Coles at 552-553 (Wood J).
In the second reading speech for the Bill introducing s 132A the Attorney General said:
“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.”
—New South Wales Legislative Council, Courts and Crimes Legislation Further Amendment Bill 2010, Second Reading Speech (Hansard), 24 November 2010 at 28073.
In the present case, there can be no suggestion of “judge shopping”. As I said earlier, the parties have known the identity of the trial Judge since 5 December 2014. That is a considerable time before the 28 day time limit prescribed by s 132A. Thus, it cannot be suggested here that the parties made the application as a result of discovering the identity of the judge.
However, matters of appearances are not limited to the identity of the trial judge. The case has thrown up two incidents that, from the point of view of appearances, are unfortunate.
On 3 March 2015, Senior Counsel for the accused indicated that he had instructions to make an application for a judge alone trial. He indicated that he would formally make the application by notice of motion the following day although he doubted that “it actually needs a couple of pieces of paper to galvanise the Crown into action in the circumstances”. On 4 March 2015, Senior Counsel had in his possession the formal documents but did not seek to file them until he had taken further instructions:
“I’m going to give my client one further opportunity to consider his position, having heard your Honour’s judgment.”
This was a reference to my judgment in R v Simmons (No 2), handed down earlier in the day and in which I made certain remarks about Mr Simmons’ conduct, character and willingness to engage in criminal activity of a large variety of kinds (see for example at [142]-[149]). The appearance, if not actuality, was that Mr Simmons was basing his decision around things I had said earlier in the day. This was a perfectly sound and proper forensic exercise and an appropriate discharge of counsel professional responsibility to his client. However, as I said in the course of the argument, it was an “unedifying spectacle” from the point of view of appearances. It would not have occurred had the application for a judge alone trial been made in advance of the trial and in a timely fashion.
The second incident involved the position taken by the Director of Public Prosecutions. The Crown Prosecutor has taken a fair and principled approach to the application. He acknowledges that this is an unusual case in terms both of the quantity of prejudicial material and the particular manner in which that prejudicial material affects the trial. However when the application first came to be argued on 9 March 2015, I was reserved in the voir dire judgment concerning the admissions made by Mr Moore (R v Simmons (No 3)). Asked whether the Director consented to the application for trial by judge alone, the prosecutor described it as “a rather delicate situation” and continued:
“My instructions to oppose, and I need to quite openly inform your Honour, is predicated upon not knowing your Honour’s view in relation to the voir dire matter involving [Mr Moore’s admissions]’s.”
…
“If your Honour took a certain view, or made certain findings of fact in that matter, that it could impact on whether the Crown, the instructions for the Crown to consent or otherwise to the application for judge alone might change.”
The appearance of this is that the Director was seen to be deciding whether or not to consent to an application for a judge alone trial – which is to say determining its position on the “interests of justice” – based on the identity of the trial judge. I must reiterate that I am not being critical of the Crown Prosecutor when I make these remarks. He made the submissions delicately, with admirable candour and on my invitation to speak plainly. However, once again, the appearances are bad. One problem with the matter being raised in this way, although the Crown Prosecutor was clear in eschewing it, was the appearance that some pressure may be placed on the decision maker in relation to findings to be made. (I have now delivered the judgment in Simmons (No 2) and have been advised that there will be no submission made that I should be disqualified from hearing the matter.)
If the application for a judge alone trial was determined in advance of the pre-trial hearing, and things were said in the course of a voir dire that prompted or justified an application for the judge to disqualify themselves, that application would be dealt with on its merits. The identity of the trial judge should play no part in the determination of, or election for, a judge alone trial. Such an approach is against the purpose of the legislation and inimical to the appearance of justice.
An application for a judge alone trial should be considered from both parties point of view without any reference to the identity of the trial judge. That is so whether the trial judge is part heard in pre-trial hearings or not. If something is said in open court or in a judgment or if information comes to the attention of the parties that might create the appearance or apprehension of bias on the part of the trial judge, the application for the judge to be disqualified from hearing the case should be made then.
All of this goes to emphasise the problems with making an application under s 132 at such a late stage.
In my opinion, there is much to be said for the application for a judge alone trial to be made before other pre-trial issues are considered. While this might potentially give rise to applications based around decisions then made on the voir dire, it avoids the appearances to which I have made reference.
The tardiness of the application militates against the grant of leave under s 132A(1). However, the question of leave must also be considered by reference to a number of other significant factors.
First, as I have said, the identity of the trial judge was known since early December 2014. The purpose of the 28 day time limit is to avoid the actuality and appearance of judge shopping. That consideration has no meaningful application where the parties were aware of the identity of the trial judge for such a long time before the trial date.
Second, it has been put from the bar table (and I accept) that the solicitor for Mr Simmons raised the possibility of a judge alone trial informally with the prosecution at one or more of the mentions before the arraignment Judge. While the matter should have been brought to the attention of the list Judge, I take that matter into account in considering the question of leave.
Third, rightly or wrongly, Mr Young SC took the view that the application for a judge alone trial would have been premature in advance of the ruling on the voir dire. I disagree with that stance and, even if the judge hearing the voir dire determined the sequence of applications differently, notice of the possibility of the application should have been made earlier. However I accept that Senior Counsel took a different view and did so in earnest. There was no forensic advantage in hiding the possibility that he may make an application for a judge alone trial. Further, Mr Young SC advised the court of the possibility of the application on the first day of the pre-trial hearing.
Fourth, as Mr Stratton SC (then appearing for Mr Moore) pointed out when I raised the question of whether there was jurisdiction to hear the application after the trial had (technically) started (cf s 130(3)(a) Criminal Procedure Act), the trial date was formally vacated by the list Judge on 5 September 2013. His Honour listed the pre-trial hearing for 16 February 2015 noting that it was expected to take “several weeks”. On 5 December 2014 the list Judge confirmed the listing of the pre-trial hearing “with the trial to proceed thereafter”. The situation is not dissimilar to that which arose in R v Coles where Wood J made the following practical observations (at 553):
“The initial allocation of a hearing date is often a nominal date. Cases which are fixed for hearing are sometimes not reached, and cases are sometimes adjourned for cause on the date appointed for trial, either because the Crown or the accused is not ready. These cases are then re-fixed. In country circuits, and in other metropolitan courts where there are running lists, there may either be no specific date fixed, or at best the date is a nominal or not before date. When proceedings are adjourned to a new date for cause, or re-fixed after being not reached, it is difficult to say that a new date for trial has not been appointed by the trial judge, or list judge, as the case may be.
I am not prepared to construe s 32 so as to exclude the possibility of a new date for trial being fixed by the trial judge. It seems to me, as a matter of principle, that is what occurs when a matter is stood out of a daily list, and listed for a new date. I am unable to identify any satisfactory basis for framing a distinction which would be dependent on the reason for the adjournment or the re-fixing of the trial”.
In view of the listing of the trial “to proceed [after]” the pre-trial hearing, any date fixed was both non-specific and “nominal” in the sense articulated by Wood J.
Fifth, the Crown Prosecutor does not object to leave being granted. His position appeared to be (if I may be permitted to infer it) that the accused should not be locked out from arguing the merits of their application based on a refusal to grant leave due to the failure of their legal representatives to make the application earlier. This is a fair and correct approach.
Sixth, having read the material and heard the submissions, the application is based on unusual circumstances and is clearly arguable.
For those reasons, I will grant leave under s 132A of the Criminal Procedure Act.
However, it should be clear to practitioners that this is a most unusual case. I expect that in most cases leave would be refused if the application is not made until after the date that the matter was set down for trial or for the hearing of pre-trial applications where the trial was to proceed thereafter.
THE FACTUAL BACKGROUND, CIRCUMSTANCES OF THE ALLEGED OFFENCE AND BASIS OF THE APPLICATION
I have set out the factual background of this case in both of my judgments on the voir dire. In Simmons (No 3) I summarised the circumstances at [7] - [11]:
“7. In June 2009 Andrew Russell, a resident of Bathurst, went missing. He was last seen, at least by a source that is considered by the Crown to be reliable, on 2 June 2009. His family and friends have not seen him since that date. A witness, Michael O’Neill, saw a man near the intersection of Littlebourne Street and the Sydney Road (Great Western Highway) in Kelso at around 10:30 pm and then again a short (unspecified) time later. The man was in the middle of the highway and Mr O’Neill was concerned and spoke to him. He reported the incident to Bathurst Police. A few weeks later, after Mr Russell was reported missing, Mr O’Neill was shown a photograph and said he was “quite confident” that it depicted the same man.
8. Suspicion attached fairly quickly to the accused Simmons because there was known animosity between him and Mr Russell. It is alleged (and, based on his plea on arraignment, not disputed) that on 20-21 March 2009, Simmons assaulted Mr Russell. However, while Simmons seemed to be the prime suspect, orthodox police investigations failed to uncover any cogent or admissible evidence against him. There was a good deal of rumour and some evidence of things that he had said, but no reliable evidence of real substance was uncovered between June 2009 and September 2012.
9. The accused (Moore) was a close friend and associate of Mr Simmons and the rumour mill suggested that he too was involved, either as an accomplice in the murder or in assisting with the disposal of the body.
10. Between September 2012 and January 2013, the police employed a sophisticated undercover operation targeting Simmons. The details of that operation are set out in some detail in my judgment admitting the evidence of Simmons’ admissions: R v Simmons; R v Moore(No 2) at [9]-[42]. The admissions made are detailed at [84]-[97]. In short, Simmons asserted that he and the accused had come upon Mr Russell at a bridge on the Sydney Road outside Bathurst, had taken him by car to a cliff near the town of Sofala and pushed him off the cliff. They retrieved the victim’s body and buried it in a mineshaft in another location near Sofala. Mr Simmons took the undercover police to the location where they buried the body. No mineshaft or human remains have been found in that area in spite of a thorough search. It is clear from the submissions on the voir dire that Mr Simmons’ case is that the admissions are untrue and that he was boasting or big noting himself for reasons of no present relevance.
11. The admissions made by Simmons would suggest that Mr Moore is guilty of murder. He was part of the joint enterprise of abducting Mr Russell and played a part in pushing him off the cliff. Of course, those admissions are not admissible against the accused. The Crown case against the accused Moore is that Simmons killed Mr Russell and that the accused assisted in disposing of the corpse.”
In Simmons(No 2), I set out the nature and extent of the undercover police operation undertaken between September 2012 and 16 January 2013: at [9] – [42]. I set out the admissions that were made by the accused from [84] – [97]. I will not repeat that summary here and it is necessary for the reader to refer to those paragraphs to obtain any real understanding of the reasons that follow.
In general terms, the object of the police operation was to trick the accused into believing that a number of undercover operatives [REDACTED]. The accused was encouraged to speak plainly and truthfully about crimes he had committed in the past. In particular, [REDACTED], the accused was encouraged to provide all of the circumstances surrounding the alleged murder of Mr Russell. As I said in the judgment admitting the evidence of his confessional statements, Simmons showed himself to be ready, willing and able [REDACTED]. In the lengthy recorded conversation between Simmons and the undercover police officers, Simmons admitted to being involved in a wide range of criminal offences in the past.
In the recordings of 9, 15 and 16 December 2015 the accused made admissions to the murder of Mr Russell. To oversimplify what he said, he claimed that he and Mr Moore picked up Mr Russell at a location outside Bathurst, drove him to cliff-face at a place called Wallaby Rock near the hamlet of Sofala and pushed him from the cliff. He and Mr Moore then recovered the body and buried it in a mineshaft at another location near Sofala.
Mr Simmons’ answer to those potentially devastating admissions will be that the confession is untrue. As I understand it, it will be suggested that he told those lies in order to big-note himself in front of people that he thought [REDACTED].
The basis of the application for a judge alone trial is that, no matter what editing is done to the material, the nature of that material and the evidence that the accused will need to adduce in order to explain why he made admissions that he now says are false, is so prejudicial that no jury would be capable of bringing an impartial mind to bear on the ultimate issue for determination. That issue is the truthfulness and reliability of the admissions. While there is other evidence, confessional and circumstantial, upon which the Crown will place some reliance, the Crown acknowledges that the case will most likely rise and or fall on the question of the reliability of the substance, if not the detail, of the admissions. As best as it can be anticipated at the outset, the Crown’s position will be that even if the precise mechanism of the murder (i.e. pushing the victim off the cliff) is incorrect, the tribunal of fact may accept part or parts of the confession and that this may corroborate the other evidence supporting the case that Simmons is responsible for the disappearance and murder of Mr Russell. For example, there is evidence from an independent source that might establish that the location where Mr Russell was last seen alive is not far from the location where the accused admitted that he picked up Mr Russell.
The accused submits that no direction could be formulated which would be sufficient to ensure that the jury does not act on the basis of the prejudice occasioned by the introduction of such a large body of evidence showing that the accused was a willing participant in a diverse array of serious criminal activity.
The Director of Public Prosecutions does not consent to the order for a trial by judge alone. However, the experienced Crown Prosecutor who appears at the trial acknowledges the force of the arguments put by the accused. In particular, he concedes that the amount of prejudicial material is significant and unusual. He acknowledges that there will be real difficulties for both parties in adducing the evidence in such a way that the trial does not run the risk of miscarriage and discharge of the jury.
However, the Crown Prosecutor took the role of “contradictor”. In doing so he relied upon the large body of authority in the New South Wales Court of Criminal Appeal and in the High Court to the effect that juries are generally capable of obeying directions and that the system is predicated upon the assumption that they do so.
The Crown referred to a number of notorious cases where juries were entrusted to determine the issues in spite of the fact that the evidence necessarily showed the accused to be members of groups that are unpopular in the general community from which any jury is drawn. For example, he referred to the trial of Hawi and others involving the murder of a man at Sydney airport (the appeal is Hawi v R [2014] NSWCCA 83). That case was surrounded by great publicity of a prejudicial kind that necessarily involved the jury knowing that the members of both the groups of men who participated in a serious affray in a public aircraft terminal were members of criminal groups (outlaw motorcycle gangs). The Crown noted that the jury in that case was capable of distinguishing between the accused and a number were acquitted. He referred back to cases such as the trial following the Milperra Massacre, another trial involving so called outlaw motorcycle gangs. Again, the jury heard a substantial amount of prejudicial evidence and yet were capable of obeying directions to act in accordance with their oaths and to put aside matters of emotion and prejudice: R v Annakin (1987) 17 NSWLR 202; R v White (1988) 17 NSWLR 195.
A less felicitous example raised by the Crown concerned the lengthy terrorist trial which proceeded before Whealy J in 2010 and was subject to a recent decision of the Court of Criminal Appeal: Elomar, Hasan, Cheikho and Jamal v R [2014] NSWCCA 303. That was an unfortunate reference because, as far as I am aware, none of the accused in the trial were acquitted and so the proposition that the jury differentiated between the cases and was not influenced by prejudice cannot be tested. In any event, it was a case tried under Commonwealth law and trial by judge alone is not available under s 80 of the Constitution: Brown v R [1986] HCA 11; 160 CLR 171.
Otherwise, the Crown Prosecutor’s point is well made. I accept that many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices.
RELEVANT LEGAL PRINCIPLES
I have set out the terms of the statute authorising a “trial by judge order”. The decision turns on a consideration of the question of whether it is in the “interests of justice” to make a trial by judge order. Obviously enough, the interests of justice is an expression of very wide import and may raise an extremely diverse array of considerations.
No presumption in favour of trial by jury
The judgment of McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 represents the most comprehensive analysis of the current provisions in New South Wales. Most of the principles to be derived from the judgment were helpfully summarised by Bellew J in R v Villalon [2013] NSWSC 1516 at [20].
In R v Belghar the Chief Judge at Common Law made reference to the analysis of the benefits of trial by jury undertaken by Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at [90], [93]-[97]. Heydon J referred to Lord Devlin’s famous description of the jury as “the lamp that shows that freedom lives” and set out the five advantages that Lord Devlin identified in his Hamlyn Lectures collected in Trial by Jury (rev ed) (1966).
McClellan CJ at CL at [96] rejected the proposition that s 131 “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”. His Honour acknowledged that there was an evidentiary onus but there is no presumption in favour of a jury trial and no legal onus on an accused person who seeks an order under s 132.
No right to a trial by judge alone but the accused’s election is to be considered
In R v Stanley [2013] NSWCCA 124 Barr AJ held that “an accused cannot have a trial by judge alone for the asking”. However, the Queensland authority relied upon in support of that proposition appeared to take the view that the Criminal Code 1899 (Qld) was not “neutral” and that trials by judge alone were “exceptional”: R v Fardon [2010] QCA 317 at [81]. It is difficult to reconcile that position with the judgment of McClellan CJ at CL in R v Belghar. His Honour at [96] referred to the comments in R v Fardon as obiter and rejected the proposition that the New South Wales statute required “weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury”.
However, it must be correct that the accused has no right to demand a trial by judge alone.
On the other hand, the fact that the accused has decided on legal advice to relinquish his right to a jury trial is a matter to be weighed in determining where the interest of justice lie. Similarly, any subjective apprehension in the accused that he will not receive a fair trial in the hands of the jury is a relevant consideration: R v Belghar at [99], Arthurs v Western Australia [2007] WASC 182 at [79]. In R v Stanley it was held at [42] that there must be more than a “mere stated apprehension without supporting evidence”.
Community standards and intention
Sub-section (5) provides some non-exhaustive guidance as to a particular circumstance where the court may decide that it is not in the interests of justice to make a trial by judge order. That circumstance is where the case raises the “application of objective community standards, including an issue of reasonableness, negligence, indecency, obscenity or dangerousness.” None of the specific matters referred to in the section will be an issue in the current trial. Nor is it anticipated that the case will give rise to any other question concerning or requiring the application of objective community standards. The questions that will arise in the present case are first whether the prosecution can establish beyond reasonable doubt that Mr Russell is deceased. That issue is starkly raised in circumstances where his remains have never been found. The Crown will rely on the fact that he has not been seen or heard of since 2 June 2009 and his disappearance is unexplained. I anticipate that Mr Russell’s poor health will be relied upon by the Crown to submit that he was unlikely to simply leave the Bathurst area and take up residence elsewhere. The Crown will also rely on the admissions made by the accused to various people including the undercover operatives. The second issue will be whether the admissions to the undercover operatives are reliable in the sense that they are true. I gather that the issue in relation to other alleged confessional statements will be whether those statements were in fact made. Those are questions of fact and do not attract the application of community standards.
In spite of the fact that the accused disavows the issue on this application, there is some possibility that the question of intention may arise. Obviously, if it is accepted that the accused pushed the deceased off a cliff (the confession in the course of the undercover operation) the issue of intention will scarcely be arguable. There is some evidence in Ex VD 1 that the accused made admissions to bashing Mr Russell. If those admissions are accepted, or if the Crown relies on that alternative version of the admissions, it may be that the tribunal of fact would be called upon to consider whether an intention to inflict really serious injury or to kill has been established.
There is some controversy in the cases as to whether the question of intention is a matter which raises objective community standards: see, for example, AK v Western Australia [2008] HCA 8 at [95] (Heydon J), R v Stanley [2013] NSWCCA 124 at [55]-[58] (Barr AJ, Macfarlan JA and Campbell J agreeing); R v Dean [2013] NSWSC 661 at [58] (Latham J), R v King [2013] NSWSC 448 at [52] (Bellew J), R v Abrahams [2013] NSWSC 729 at [73]-[77] (Harrison J). Both Bellew J in R v King (at [52]) and Harrison J in R v Abrahams (at [76]) referred to R v Belghar at [100] and noted that McClellan CJ at CL at [90] implicitly accepted that the question of intention did not raise the application of community standards, at least in the circumstances of that case.
Harrison J considered the controversy in R v Abrahams and said at [73]-[77]:
“73. In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Heydon J considered that the question of whether or not an accused person had a particular intent was an example of an issue requiring for its determination the application of community standards. His Honour said this at [95]:
‘...Thus Lord Devlin saw the jury as being for some purposes 'the best judicial instrument'. A clear illustration of this role of the jury is seen when the jury decides whether the facts it finds answer certain legal criteria. That phenomenon is recognised by s 118(6) of the Criminal Procedure Act, for the court may refuse to order trial by judge alone 'if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness'. Other examples of factual issues requiring the application of 'objective community standards' include whether behaviour was 'threatening, abusive or insulting'; whether conduct was 'dishonest', a matter to be decided by the jury 'according to the ordinary standards of reasonable and honest people'; whether an assault is 'indecent'; and whether an accused person had a particular intention.’
74. The link between decisions concerning the existence or formation of a particular intent and the application of community standards was also discussed by Barr AJ in R v Stanley [2013] NSWCCA 124 at [56] - [59] with a conclusion as follows:
‘[59] I accept that the fact alone that community standards must be applied in the resolution of factual issues does not mandate trial by jury but, as subs (5) makes clear, it is a circumstance in which the jury may be considered to be the superior tribunal of fact."
75. For my part I find it difficult immediately to accept that cases concerned with the assessment of whether or not a particular individual had formed or retained a particular intent allegedly relating to the commission of some charged act necessarily or even arguably "involve a factual issue that requires the application of objective community standards". The question, for example, of whether or not an act was committed with such force that it bespeaks or evinces a particular intention is undoubtedly a question of fact. The force of the suggestion that there is a corresponding and simultaneous requirement to apply some objective community standard in undertaking the assessment of that factual issue is not obvious to me. I note with some interest that the only citation provided by Heydon J for the proposition that "whether an accused person had a particular intention" was an example of a factual issue requiring the application of objective community standards was at note [86] to his Honour's judgment in these terms:
‘[86] Buxton, 'Some Simple Thoughts on Intention', [1988] Criminal Law Review 484 at 495: '[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'.’
76. In Belghar, McClellan CJ at CL expressed the view that the determination of intention in the particular circumstances of that case did not involve the application of community standards. Latham J referred to the competing views about it in R v Dean [2013] NSWSC 661 at [58] as follows:
‘[58] The Crown in King relied upon this aspect of Heydon J's judgment and the Crown relies upon it here. It is right to acknowledge that Justice Heydon's observation in this respect was not endorsed by any other member of that bench and that McClellan CJ at CL accepted that the issue of intention did not involve the application of community standards in the circumstances applying in Belghar. Like Bellew J, I am not persuaded that the issue of intention can never involve the application of objective community standards. I also note that the basis of the decision in Belghar was that the trial judge determined the application in the absence of appropriate evidence and without considering whether such prejudice as was found to exist could be neutralised by directions.’
77. Having regard to the view I have otherwise formed, it is strictly unnecessary to decide the point. I accept cautiously that it could not be said that the issue of intention could never involve the application of objective community standards. It does not, however, appear to me that this is such a case.”
I agree with those observations, particularly those in paragraph [75]. There is a qualitative difference between the application of community standards to questions such as whether an act is obscene, indecent, reasonable or negligent and a factual inquiry as to whether a particular accused formed the necessary intention to constitute a specified criminal offence. Further, if the Parliament was of the view that the issue of intention was one that involved the application of community standards, it would have been very easy to include that issue within the non-exhaustive list of matters identified in sub-s 132(5).
Neither counsel anticipates that the issue of intention will loom large in the trial. The real issue in the trial will be the whether Mr Russell was killed and, if so, who killed him. The accused says that the issue of intention is unlikely to arise in any meaningful way. Mr Young says that no submission will be made in address that the jury (or Judge sitting alone) might find the accused guilty of manslaughter on the basis that he did not have an intention to kill or inflict grievous bodily harm. The Crown Prosecutor expressed doubts that the issue will arise and it is not a matter upon which the Crown relies in opposing a trial by judge order.
Efficiency and the length of the trial
In R v Markou [2011] NSWDC 25, Judge Berman SC noted that judge alone trials tend to be quicker and more efficient. His Honour noted:
“7. Even in trials that run without interruption, judge alone trials are more efficient. Advocates naturally assume that the clever points they are making regarding evidence have to be emphasised and repeated in order to ensure that the least perceptive member of the jury understands it. Not only do judges tend to understand points the first time they hear them, they have the ability to say to an advocate. ”I understood that the first time”. I use that simple example of how a judge alone trial tends to be quicker.”
In R v Belghar, McClellan CJ at CL at [110] referred to these observations and similar comments in other cases. He accepted that such efficiencies and the length of the trial may form “part of the mix of issues” to be considered in a particular case but went on at [111]:
“111. 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 v Herriman (1988) 14 NSWLR 387, they are not relevant to the interests of justice in the particular case.”
An example of a case where the length of the trial was a significant part of a consideration of the “interests of justice” was R v Gittany [2013] NSWSC 1503. In that case, McCallum J accepted counsel’s estimates that the trial would have been significantly longer if conducted with a jury. The evidence was that the accused had insufficient funds to privately engage his legal team for the longer jury trial. An adjournment to allow a legal aid application to be pursued would have resulted in the unavailability of an important prosecution witness. In those circumstances, her Honour accepted that the length of the trial was a critical factor in determining whether it was in the interests of justice to make a trial by judge order.
The duty of a judge to provide reasons
Another issue discussed in R v Belghar was the advantage of transparency inherent in the requirement that a Judge give reasons for the verdict. This is to be contrasted with the jury which is “as inscrutable as the Sphynx”: Ward v James [1966] 1 QB 273 at 301 (CA), Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 365. McClellan CJ at CL said at [112]:
“To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.”
Complex expert evidence
Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]. In Kingswell v R [1985] HCA 72; 159 CLR 264 Deane J said at 302-303:
“There is, for example, obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial or upon the detailed technical questions which may be involved in the trial of white collar and computer crime.”
Further, it may often be in the interests of justice for the reasoning process of the tribunal of fact to be exposed in cases involving an assessment of competing and complicated expert evidence: Arthurs v Western Australia at [90].
Credibility issues
Lord Devlin was of the firm opinion that the jury was the most appropriate tribunal to determine issues of credibility:
"[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."
—Lord Devlin, Trial by Jury, (rev ed) (1966) at 14, Cited in AK v The State of Western Australia [2008] HCA 8; 232 CLR 438 at [94] and R v Belghar at [24].
In Doney v The Queen [1990] HCA 51; 171 CLR 207 the High Court referred (at 214) to:
“...the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.”
However, it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are central to a trial, that is a factor that militates strongly in favour of a jury trial.
In R v Belghar, McClellan CJ at CL referred to Lord Devlin’s statements but did not adopt them in the context of his analysis of s 132.
In Coates v Western Australia [2009] WASCA 142 at [9]-[12] Owen JA said:
“9. The assessment of credibility is essentially a subjective matter, although some objective considerations might come into play in forming the platform from which the assessment is made. Section 118(6) is of no direct assistance to the appellant here. That was the view taken by the trial judge when the application was made to abort the trial (ts 3826). In my opinion his Honour was correct in coming to that conclusion.
10. It is true that a free exchange of views and ideas can be very helpful in the decision making process. Everyday experience indicates that the physical and mental process of having to articulate propositions and to listen to the reaction of others can clarify thinking. But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.
11. I am not suggesting that juries are incapable of making objective and dispassionate decisions. A judge's charge to a jury will almost always include directions to that effect and I have no reason to believe that jury members do other than pay due and faithful regard to the instruction. But the day to day working life of a judge will often involve dealing with evidence in ways that are outside the normal experience of members of the public. For example, a judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. When matters of that nature arise in a jury trial there is a need for careful direction to guide the jury in relation to them. The experience gained by a trial judge over time in relation to a wide range of fact-finding methods can be a peculiar advantage.
12. In this case the trial judge was acutely aware of the centrality of Mr X's testimony. He expressed some views about the advantage jury members would have in discussing the evidence. If his Honour's comments are taken as an indication that he regarded himself at a material disadvantage in assessing Mr X's credibility then it will be apparent from what I have said that I do not agree. But I am not sure that this is what his Honour meant. It does not follow that just because one group has an advantage that another group (or individual) has a material disadvantage in relation to the same matter.”
Those observations were made after the trial Judge had referred to the passage from Doney v The Queen set out above at [74] and went on:
“When 12 people unanimously agree on the credibility of a critical witness there can be the highest degree of confidence that that assessment is correct. However, in a trial without a jury only one person makes that assessment, and in my view it follows that exceptional care must be taken before accepting an accomplice's evidence.”
Buss JA (with whom Martin CJ agreed) said at [118]:
“118. In my respectful opinion, the learned trial judge overstated any difficulty for a trial judge (and his Honour is a very experienced trial judge) in determining the credibility of a witness. The assessment of the truthfulness and reliability of witnesses is a basic function of a trial judge and, in performing that task, he or she is not, in my opinion, under any relevant disadvantage compared with a jury. Indeed, a trial judge has considerable advantages over a jury as a result of his or her training and experience.”
In R v Farrow [2014] NSWSC 1781 Rothman J made a trial by judge order in a case where the sole issue was mental illness. There was a conflict of expert opinion. Central to that conflict was the question of whether the accused was “genuine in his statement of symptoms”. Rothman J acknowledged (at [37]) that this was a matter “invariably” considered by juries and not a matter that “peculiarly, or even preferably, should be determined by the trial judge.” In spite of that fact, and the fact that the issues “may require the application of objective community standards”, his Honour was persuaded that it was in the interests of justice for the matter to be determined by judge alone.
There may be cases where particular issues of credibility mean that the interests of justice favour a trial by jury. In R v Tasich [2012] NSWDC 96 Knox DCJ expressed the opinion that where there were attacks on the credibility of public officials and members of parliament “it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury.”
I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis.
Prejudicial material
Jodie O’Leary suggests that the most common reason for seeking a judge alone trial is a belief in the accused “that his or her trial might otherwise be prejudiced by previous media publicity or by evidence which the jury might find revolting”: Jodie O’Leary, “Twelve angry peers or one angry judge: An analysis of judge lone trials in Australia” (2011) 35(3) Criminal Law Journal 154. O’Leary considered cases across Australia, particular in Western Australia, Queensland and New South Wales.
There are a number of cases in New South Wales where applications for trial by judge alone have been based on prejudice arising from material contained in the evidence of the case itself, from the media publicity surrounding the proceedings or from the risk that a jury may interrogate the internet. Overwhelmingly, it has held that the prejudice identified in the application is capable of being overcome by direction to the jury: see, for example, R v Abrahams at [54]-[60], R v Dean at [65], R v King at [60]-[65]; R v McKnight [2014] NSWSC 398 at [31] (Campbell J).
In R v King, Bellew J cited some of the more influential statements to the effect that a jury is capable of following directions imploring them to disregard matters of emotion and prejudice:
“62. 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.’
63. Observations to a similar effect had previously been expressed by Mason CJ and Toohey J in R v Glennon [1992] HCA 16; 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] HCA 56; (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] HCA 28; 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.’
64. 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).”
There are many statements to similar effect. It is assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J).
Academic writers have questioned this “near heroic belief that jury directions can cure negative impressions formed about an accused” and suggested that “there is no evidence to suggest that this is anything other than judicial wishful thinking”: see Mirko Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 at 8. Bagaric refers to a “body of work that suggest that once people form an adverse view they cannot simply discard their preconceptions upon command” (see footnote 4 on p 8) and asserts that “the overwhelming trend of results is that notorious accused are convicted”.
In spite of the persuasiveness of Bagaric’s essay, the force of the authorities are such that I must proceed on the basis that jurors are capable of, and do, obey directions, including directions requiring them to disregard prejudicial publicity surrounding a trial and prejudicial evidence adduced in the course of the trial. However, this axiom can be taken only so far. The discretions residing in a trial judge to exclude prejudicial evidence, to suppress evidence during the currency of a trial, to discharge a jury without verdict if inadmissible evidence comes before it and to order separate trials of co-accused and severance of multiple counts are all examples of legal remedies which would not exist if it were universally the case that juries were capable of obeying directions and disregarding prejudicial material. It is a question of degree and turns on a thorough analysis of both the nature and extent of the prejudicial material and the method by which it will be introduced into the trial.
This was recognised by Judge Woods QC in R v GSR (3) [2011] NSWDC 17. That case is best identified by reference to the nickname given to the accused by various media outlets. The accused became widely known as the “Butcher of Bega”. He had been tried and convicted in relation to an offence of inflicting grievous bodily harm with intent. The trial attracted an enormous amount of media publicity. He was then called for trial in relation to a number of offences of indecent assault. Woods QC DCJ held that the publicity was so great and so prejudicial that a fair trial before a jury could not be held at that time. Accordingly, his Honour made an order under s 132 of the Criminal Procedure Act and the case proceeded by judge alone trial. R v GSR (No 3) is an example of an exception to both the body of case law that the system is predicated on the fact that juries obey the directions that they are given and also the general proposition that juries are capable of disregarding prejudicial material.
Similarly, in Arthurs v Western Australia, Martin CJ was persuaded that he should order a trial by judge alone largely as a consequence of pre-trial publicity that his Honour described at [86] as “extensive, continuous and in some respects extraordinary”. The Chief Justice had earlier found at [31] that some of the publicity arguably constituted a contempt of court. In concluding that the interests of justice favoured a trial by judge without a jury his Honour said at [87]-[92]:
“87. There are of course many cases dealing with the extent to which prejudice that might be occasioned by pre-trial publicity can be ameliorated by an appropriate warning and direction to the jury, and it is standard practice in Western Australia to direct juries that they should not make any access to the Internet to conduct any of their own inquiries in relation to any aspect of the case before them. However, there is, I think, room for doubt as to the efficacy of these processes, particularly in cases which have achieved the notoriety of this case. So in my opinion there is some weight in the proposition that there is a prospect that the fairness of Mr Arthurs' trial might be prejudiced by the extensive publicity to which I have referred if he is tried by a jury.
88. The second factor which I take into account is the possible effect which the evidence as to the circumstances of the offence might have upon a jury. As I mentioned earlier, it is, I think, neither necessary nor appropriate for me to detail those circumstances other than to observe that the evidence is likely to test the emotional strength and fortitude of any person required to consider it in detail, whether juror or Judge.
89. Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict. That consideration seems to me to lend weighty support in this case to the proposition that trial by Judge without jury is in the interests of justice.
90. A third factor which I take into account is allied to the second in that it draws upon the significance of the obligation to provide reasons in the event of a trial by Judge without jury. While it could not be said that the complexity and length of this trial is such that it would be burdensome on a jury, there are more than 70 prosecution witnesses named on the indictment, although we do not yet know how many of those witnesses are to be called. The latest estimate as to the length of trial I have received is one of ten days.
91. I am, however, told by defence counsel that there are likely to be issues requiring the detailed evaluation of expert evidence, including expert pathological and psychiatric evidence. I accept though that it is difficult to be certain as to precisely the extent of that evidence at this stage.
92. I do not for one moment suggest that those are issues which are beyond the capacity of a jury and although this is not a factor upon which I would place considerable weight, from my review of the prosecution brief there do appear to be aspects of this case in respect of which the delivery of reasoned decisions for judgment would be in the interests of justice.”
O’Leary noted (at p 22) that the cases reviewed for her paper predominantly concerned issues relating to prejudice arising from publicity surrounding the case. She considered that the distinction in Arthurs v Western Australia may have been that much of the prejudicial material was evidence to be led at the trial. Such material often concerns the horrific nature of the offence itself. As Latham J’s judgment in R v Dean shows, it is generally accepted (although it cannot universally be true) that prejudice of that kind can be cured by direction. Dean was charged with 11 counts of murder arising from a fire he set at a nursing home. Latham J said at [65]:
“65. Unfortunately, trials for multiple murders are not unknown to the administration of criminal justice. Notorious trials such as that relating to the murder of 7 young tourists by Ivan Milat (R v Milat NSWCCA 26 February 1998) in circumstances far more heinous than the instant case have been conducted before a jury. It is accepted by the common law that juries follow instructions from the trial judge that impress upon them the importance of deciding the matter on the evidence in the trial and putting to one side any emotional responses they may have. Robust and repeated instructions to the jury panel that invite any prospective juror to disqualify himself or herself from the panel if unable to put prejudices aside are capable of markedly reducing the risk of bias.”
The application in the present case is not based on prejudicial publicity or on the horrific nature of the evidence to be adduced in relation to the alleged murder itself. Rather, the application is based on the prejudice that will be occasioned by the introduction of evidence that the accused [REDACTED]. In that sense, the case is rather unusual. The case of Donai v R [2011] NSWCCA 173, to which reference was made in Simmons (No 2) at [152], provided an example where similar evidence (led without objection) caused the trial to miscarry and a jury verdict to be set aside.
APPLICATION OF THOSE PRINCIPLES TO THE PRESENT CASE
Prejudicial material to be adduced at trial
As the judgment in R v Simmons; R v Moore (No 2) shows, there is a vast amount of material in the brief relating to Mr Simmons which is of a highly prejudicial kind. This was summarised in my earlier judgment in dot point form in paragraph [142] – [149]:
“142. The material tendered on the voir dire contains a vast amount of material which, if admitted before a jury, would give rise to enormous prejudice to the accused’s right and capacity to receive a fair trial. That material comes in a variety of forms. First, there is the participation by the accused [REDACTED] in the course of the covert police operation. Secondly, in the course of the conversations with the undercover officers, the accused made many admissions (or boasts) about his past involvement in a variety of criminal offences. Third, the tenor of much of the conversation is offensive and suggestive of a person of bad character.
143. I note that the accused have indicated (“formally” yesterday) that they intend to seek leave under s 132A Criminal Procedure Act to make an application for Judge alone trial under s 132. The Crown is yet to indicate its position on the application and the question of leave is a live one. The application is yet to be dealt with and it is appropriate to deal with the s 137 submission on the basis that the trial will be by jury.
144. As my summary of the scenario evidence shows, the police enticed the accused into the commission of a wide variety of pretend criminal offences. His willingness to involve himself in these crimes does him no credit and is likely to cause a jury to consider him to be a person of bad character with a propensity towards the commission of a vast array of offences. Without being exhaustive, the malfeasance and criminal behaviour in which the accused was prepared to participate included:–
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- [REDACTED]
- [REDACTED]”
However in the course of submissions, the Crown Prosecutor indicated that he did not need to rely upon a large number of the earlier conversations recorded by listening device between September 2012 and early January 2013. The critical material was that contained in the conversations of 9 January 2013, and 15 – 16 January 2013.
The Crown will not press for or seek to tender that earlier material. Presumably the facts of the police operation and its general nature will be given in oral testimony by the relevant offices but the highly prejudicial listening device recordings will not be played and not all of the details of the [REDACTED] criminal offences in which the accused was encouraged to participate would be placed before the jury.
The remaining material, which is to say the recordings on 9, 15 and 16 January 2013, still contain evidence of a highly prejudicial nature. It shows the accused’s willingness to engage in [REDACTED]. It was by introducing that “scenario” that the police were able, after a lengthy and sophisticated undercover investigation, to extract the confession or confessions that they did. That material cannot be extricated from the factual matrix to be played out before the jury.
Further, within the conversations themselves there are a number of occasions when the accused refers to other crimes that he may have been involved in as well as other material that shows him in a very bad light. While the Crown does not press for the tender of all of that material, it is inevitable that some of it will come out in the trial. It is likely that the accused would seek to rely on the things he said in support of his defence that he was big-noting himself in front of the people [REDACTED].
In Simmons (No 2) I referred in general terms to the nature and extent of the prejudicial material that would remain even taking into account the Crown’s agreement not to adduce all of the earlier recordings and assuming a large amount of editing of the evidence:
“154. However, if the admissions (or some of them) are admitted, it will still be necessary for the jury to be aware that that the underlying theme of the covert operation was that the UCOs [REDACTED]. In addition to that, the conversations containing the admissions are riddled with comments that suggest that the accused is callous and uncaring. By way of example, the comment about robbing the victim after he was dead and that he was a ‘bum’. Also, he made disparaging remarks about the possibly deceased UCO 2.
155. This means that, in spite of the concession by the Crown to extract large portions of the material, there will remain a real danger of unfair prejudice.
156. Further, if the admissions go before the jury, the accused will need to make difficult forensic choices in relation to what parts of the evidence he requires to ensure that the jury understands his defence. I expect that the defence will be that the things he said to the police were unreliable, untrue and the result of him big noting himself [REDACTED]. To establish this he will have to cross-examine his way through a minefield of potentially prejudicial material. Again, this creates a danger of unfair prejudice.”
Simmons (No 2) included a direction that the parties liaise in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That was a substantial undertaking but on Wednesday 18 March 2015 the parties advised me of the prejudicial material that they agree needs to be led to enable (i) the Crown to put the evidence of the crucial admissions fairly and comprehensibly before the jury and (ii) the defence to mount its contention that the admissions are unreliable.
Ex VD 17 is a list of the material to be edited from the listening device recordings of 9, 15 and 16 January 2013. Ex VD 18 is a summary of the prejudicial material that, by agreement between the parties, will remain. It includes reference to [REDACTED]. It also includes reference to offences previously committed by the accused including drug supply. Perhaps most significantly for present purposes, it includes reference to the “scenario” [REDACTED]: see Simmons (No 2) at [32]-[37]. The accused was active in this enterprise. [REDACTED].
Ex VD 16 is a schedule of material from the recordings between September 2012 and early January 2013 that the accused may seek to elicit in order to put into a realistic and true context his case that his admissions were boasts [REDACTED]. The scenarios are set out in Simmons (No 2) and encompass a wide range of criminal and anti-social behaviour.
Affidavit evidence
The accused relies on two affidavits of his solicitor. The first affidavit refers to the fact that the Crown will rely on evidence of an earlier assault by the accused on Mr Russell as “motive or relationship evidence”. It also says that many of the civilian witnesses know the accused through their mutual involvement in criminal and drug related activity. It is asserted that the nature of these relationships “involves the danger of inadvertent disclosure of criminal behaviour during their evidence”. The affidavit annexes the accused’s election for a judge alone trial. The election was made after receiving the advice of his solicitor and Senior Counsel. The affidavit also refers to body of evidence to which I have already referred.
The second affidavit identifies further areas of prejudice and lists a number of witnesses known to the accused through criminal connections, drug related activity or as a result of meeting the accused in gaol. Reliance on much of this material was abandoned in the course of argument when it became clear that the Crown did not propose to rely on the material or would not adduce any evidence of criminal connection between the accused and the witnesses.
I accept that the material in the affidavits provides some basis for concerns that inadmissible and prejudicial evidence may inadvertently be adduced in the trial. However, of itself, this is a matter that can be dealt with by caution on the part of the advocates and, if necessary, clear direction to the jury.
The Crown Prosecutor’s position
The Crown Prosecutor is instructed to oppose the application for judge alone trial. However, in so doing he acknowledges “I can fairly say there are merits in the application … it’s not just a wish-list type of application” (T 389). Later he indicated that “given the state of the [DPP] Guidelines, I’m not in a position to consent” but went on “I concede there a significantly good reasons for the application being made by both accused” (T 416).
As I have set out above, the Crown went on to make cogent submissions based around a jury’s ability to follow directions that require them to put aside matters of prejudice and emotion.
Relevant considerations
I turn then to summarise my reasoning and application of the principles of law to the facts of the present case. In doing so, I will repeat in summary form some of the principles of law that guide me and to which I have already made reference.
There is no presumption in favour of a jury trial and there is no onus on the accused to establish that it is in the interests of justice for the trial to be conducted by judge alone.
This is not a case where the application of community standards will be a factor. While a question of intention may arise and while some of the authorities suggest that intention might involve the application of such standards, I am not persuaded by those authorities and accept the submission of counsel that this is not a case where intention is the central issue.
Questions of credibility of the witnesses will inevitably arise and the Crown has identified a number of witnesses whose credibility will be subject to dispute. However, for the reasons I have articulated, I am of the opinion that this is a neutral consideration.
This is not a case involving complex expert opinion evidence or where the Judge’s duty to give reasons is of particular significance. If a jury were to return a verdict of guilty, it would clearly be on the basis that it accepted relevant parts of the accused admissions. The accused would not be benefited or enlightened by a statement of reasons.
I do not consider the length of the trial to be a matter of any significance in the present case. I accept that a judge alone trial is likely to be somewhat more efficient but, judging from the length of the voir dire, I doubt that the savings of court time would be particularly large. In any event, with one reservation, I do not consider such matters constitute a relevant consideration in the circumstances of this case. The reservation is that there is a real risk that if the jury is empanelled there will be repeated applications for discharge of the jury as the material comes out. Some of those applications are likely to have some merit. If acceded to, there will be an increase in court time, expense and inconvenience to witnesses. If refused, it may give rise to grounds of appeal.
The accused’s election to be tried by judge alone is a matter worthy of some weight. I infer from his election that he is concerned that the nature of the prejudicial material may impact on him receiving a fair trial in front of a jury. The affidavit evidence satisfies me that he has sought and received advice from an Australian legal practitioner as to the effect of a “trial by judge order”: s 132(6).
I commence my consideration of the question of the prejudicial material by acknowledging the large body of authority supporting the proposition that juries will obey the directions of the trial judge and are capable of putting to one side material giving rise to prejudice.
I also acknowledge the fair and reasonable stance adopted by the Crown Prosecutor. While the Crown did not have instructions to consent to a judge alone trial, he candidly acknowledged the difficulties that both parties would encounter in conducting the trial in the light of the nature and extent of the prejudicial material lurking in the brief.
I have not been taken to any case where the prejudice is as extensive as it appears to be in this case. Further, apart from the sheer volume of prejudicial material, the real vice in the present case is the way in which the evidence will be introduced, the fact that it raises both character and tendency in circumstances where the Crown places no reliance on it for those purposes and, perhaps most potently, the fact that the accused’s counsel may need to introduce certain parts of the material in order properly to argue his client’s defence. As I have said, that defence is no doubt that [REDACTED]. That is a most unpalatable defence and one that will be entirely foreign to most members of the jury. I find it difficult to see how the accused can fairly conduct that defence and expect a jury of right minded people from the community to put aside his admitted criminal propensity in determining in a cold, scientific, dispassionate and judicial manner whether the Crown has proved its case of murder beyond a reasonable doubt.
I am unable to envisage any direction to the jury that will alleviate the prejudice that will be aroused by the material that it is anticipated will be led in this trial. In Makarov v R(No 3) [2008] NSWCCA 293 a large body of prejudicial evidence was tendered as “context” or “relationship” evidence. The Court (Bell JA, Johnson and McCallum JJ) held that the careful and thorough directions given in that case were “not capable of overcoming the prejudice that arose as a result of the joint trial and the admission of the appellant’s other sexual misconduct”. While the factual and legal matrix is entirely different, the cases share two common threads. The first is the sheer volume of prejudicial material that will be introduced into the trial and the fact that the material is not introduced in direct proof of guilt but for an ancillary purpose. The second is that direction to the jury is unlikely to overcome the prejudice that will result in the admission of such a large body of evidence.
CONCLUSION AND ORDERS
Taking all of those matters into account, I have reached the conclusion that it is in the interests of justice that the accused be tried by judge alone.
I make the following orders:
(1)Leave granted under s 132A Criminal Procedure Act 1986 (NSW).
(2)Pursuant to s 132 Criminal Procedure Act 1986 (NSW) I order that the accused is to be tried by judge sitting alone without a jury.
(3)The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission.
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