R v Stanley

[2013] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stanley [2013] NSWCCA 124

Hearing dates:

2 May 2013

Decision date:

28 May 2013

Before:

Macfarlan JA at [1]; Campbell J at [2]; Barr AJ at [3]

Decision:

1. Allow the appeal and quash the order appealed from;

2. Dismiss the application.

Catchwords:

CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried;
CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions;
APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE - apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.

Legislation Cited:

Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977

Cases Cited:

AK v Western Australia [2008] HCA 8, (2008) 232 CLR 438
Arthurs v State of Western Australia [2007] WASC 182
Brown v The Queen [1986] HCA 11
DAO v R [2011] NSWCCA 183
Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
House v The King (1936) 55 CLR 499
R v Belghar [2012] NSWCCA 86
R v Burrell [2004] NSWCCA 336
R v Fardon [2010] QCA 317
R v Sean Lee King [2013] NSWSC 448
Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517

Texts Cited:

"Some Simple Thoughts on Intention" by Richard Buxton QC [1988] Crim LR 484 at 494.

Category:

Principal judgment

Parties:

Walter Kevin Stanley (Respondent)

Representation:

Counsel:
J H Pickering SC (Applicant)
C Smith (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Borthwick & Butler (Respondent)

File Number(s):

2012/ 43158005

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-09-20 00:00:00

Before:

Nicholson SC, ADCJ

File Number(s):

2012/43158

Judgment

1. Macfarlan JA: I agree with Barr AJ.

1. Campbell J: I agree with Barr AJ.

1. Barr AJ: This is an appeal by the Crown under S 5F Criminal Appeal Act 1912 against an order made in the District Court that the respondent, Walter Kevin Stanley be tried by judge alone.

1. The respondent was committed to the District Court for trial and the hearing was listed to commence on 17 September 2012 at the sittings of the District Court at Moree. By 19 September it was clear that the trial would not be reached at that sittings and would have to be adjourned to a later sittings. It seemed that that might involve a change of venue as well.

1. There was business to do, however, and the Crown presented an indictment containing three counts which may be summarised as follows-

1. On 9 February 2012 at Moree the respondent intentionally or recklessly inflicted actual bodily harm upon [the complainant] with intent to have sexual intercourse with her;

2. At the same time and place the respondent assaulted [the complainant] and at the time of the assault committed an act of indecency, namely exposing his erect penis; and

3. At the same time and place he assaulted [the complainant].

1. The respondent pleaded not guilty to the first count and guilty to the others. Sentencing proceedings on the second and third counts were deferred and his Honour was informed that the respondent wished to apply for a trial by judge order on the first.

1. The power to make such an order lies in Division 2 of Part 3 Criminal Procedure Act 1986. Relevantly, ss 131 and 132 of the Act are as follows-

131 Trial by jury in criminal proceedings

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

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.

1. By s132A (1) of the Act an application for a trial by judge must not be made within 28 days before the day fixed for trial except with the leave of the Court. There was a notice of motion seeking leave according to s 132A as well as a trial by judge order. Counsel read an affidavit of the respondent's solicitor, referring to the charges and the facts. The portions of the affidavit relevant for present purposes are these-

2. The accused was arrested on 9.2.12 and charged with assaulting a nurse at Moree Hospital with intent to have sexual intercourse with her. He has remained in custody since refused bail. Attached hereto and marked with the letter 'A' is a copy of the Police Facts.

4. During a conference with Mr Carty of counsel and I on 12.9.12 the accused instructed that he would be pleading not guilty to count one on the indictment (inflict actual bodily harm with intent to have sexual intercourse) but would plead guilty to the alternative count two (indecent assault).

5. During the conference on 12.9.12 the accused sought and received advice from Mr Carty and I in relation to the effect of an order for a Judge alone trial. He instructed us to make application for a Judge alone trial on his behalf and seek leave to make that application out of time. The crown was informed of our intentions that same day.

6. The accused is an aboriginal man. He was grossly intoxicated at the time of the incident that is the subject of the trial. He says he has no memory of the assault. The defence have no evidence to contradict the factual scenario which will be put forward by the crown witnesses.

7. The only live issue in the trial of count one will be whether the crown has proved that the accused had the required specific intent when he assaulted the complainant. The trier of fact will need to consider the accused's gross intoxication and the possibility that he had formed no specific intent or his intent was otherwise than oral penetration of the complainant.

8. It is understood that the crown will call Dr Judith Perl Pharmacologist to give evidence regarding the likely effects of the alcohol and drugs consumed by the accused. The defence will call Graham Starmer Pharmacologist.

9. It is submitted that it is in the interests of justice that this matter proceed as a Judge alone trial because the discrete factual issue to be determined does not involve the application of community standards and there is a real potential for community revulsion and unfair prejudice towards the accused.

1. There was discussion between counsel and his Honour about the need for leave under s 132A. It was clear that a further trial date would have to be fixed, but for more abundant caution his Honour granted leave. No point about that arises in the appeal.

1. Counsel put evidence before his Honour, comprising a statement of facts and experts' reports. The statement of facts differed somewhat, though not materially, from the one annexed to the solicitor's affidavit. It was in these terms-

1. About 2:15am on Thursday 9th February, 2012 police attended 8 Arunga Street, Moree. The accused was within the residence, naked and his behaviour strongly suggested he was under the influence of a drug. An ambulance attended and after further discussions it was determined the accused be taken to Moree Hospital. The accused was compliant with police and ambulance officers during this time, however he was unsteady on his feet and had some difficulty getting into the back of the ambulance. The accused was provided with a blanket and placed in the rear of the police truck.

2. The accused was taken to Moree District Hospital where the victim [RN] was a Registered Nurse and was in charge of the Hospital at the time. The victim was being assisted by a witness [EN] (Enrolled Nurse). The victim introduced herself to the accused and provided him with a hospital gown. The accused was taken in to the Accident & Emergency Department and lay down on 'resus bed 1'. The accused was provided with further sheets and a blanket to cover himself.

3. The victim, with the assistance of [EN], commenced OB's (Observations/Vitals) as per standard practice. The accused displayed varying levels of being under the influence of a drug and was rambling words.

4. During the initial stage of observations the accused was not aggressive to staff and Police and Hospital Security left and attended to other duties.

5. About 4:10am the accused's behaviour changed and he became verbally aggressive toward the victim stating, "Fuck'en [RN], Fuck'en slut come here...Come here I want to give you a pearl necklace... You have beautiful eyes, fuck'en come here."

6. Due to the accused's change in behaviour the victim contacted Dr (name) where she relayed the condition of the accused. Dr (name) provided a phone order for 'Valium 5mg'. After the phone call the victim administered the medication to the accused.

7. Just prior to 5am the accused yelled to [RN], "Come over here." The accused had removed his bed sheets and was laying in the bed naked with an erection. [EN] told the victim not to go near the accused as he was exposing him self.

8. The victim said to the accused, "If you put you clothes on I'll come over."

9. The accused picked up the urinal bottle which had been placed on his bed and threw it in the general direction of the nurse's station where the victim and [EN] were sitting. The urinal bottle landed on the floor in front of the nurse's station.

10. The accused, whilst naked, got up and stood at the end of the bed holding his erect penis with both hands. The victim she attempted to telephone Hospital Security.

11.The accused approached the nurse's station and pushed past [EN]. The victim was in fear for her safety and made her way toward the triage room at the opposite end of the Emergency room. The accused ran after the victim and caught her just inside the triage room. The accused took hold of the victim by her hair and the victim fell or was knocked to the ground. The accused had pulled clumps of the victim's hair from her head and while the victim attempted to cower on the ground the accused was forcing his erect penis in the general direction of the victim's face and stating, "Put this in your face." The accused was jabbing his erect penis in to the face of the victim. As the victim tried to crawl away the accused pulled her back by the necklace, causing the necklace to snap.

12. The victim was screaming for help and (name) was on the phone to triple 0 requesting Police assistance and observed the actions of the accused.

13. A second witness, (name), who is employed as a Security Officer at Moree Hospital heard the screams of the victim and entered the triage room via a side door. (Name) observed the accused to be standing naked with an erect penis and attempting to force his penis in to the face of the victim who was cowering on the floor. (Name) got between the accused and the victim and they were separated. Additional Hospital staff had arrived to the triage room and escorted the victim to a separate room where she was locked inside.

14. The accused ran through the hallways of the hospital whilst naked. Police arrived a short time later where and found the accused in the maternity ward. Police announced their office and directed the accused get down on the ground. The accused did not comply with the Police direction and due to his highly agitated state he was forcibly taken to the ground and hand cuffed.

15. The accused was placed in to custody on a time out due to his drug effected state. Detectives were contacted and assisted with the investigation. A crime scene had been established at the hospital where a number of photographs were taken and two clumps of hair believed to be that of the victim were collected as exhibits.

16. About 8am the accused's partner (name) attended Moree Police Station as a support person. The accused appeared to have recovered by this time however; another time out commenced as the support person sought childcare.

17. The support person returned to Moree Police Station a short time later however, the accused requested medical assistance. An ambulance was called and checked the welfare of the accused. The accused was then informed of his rights in accordance with Part 9 of LEPRA while in the presence of the support person. The accused spoke with Aboriginal Legal Service.

18. The accused then participated in an Electronic Record of Interview No: R0220271. The accused informed Police he has no recollection of any incident at Moree Hospital. The accused informed Police he had consumed two (2) cases of rum and coke and self administered 'Oxycontin' and 'Gas' (methamphetamine) prior to this incident. The accused further claimed that someone must have spiked his drink and that's why he went off his head.

19. The accused participated in a forensic procedure in regard to the obtaining of photographs.

20. The accused is charged with the matter before the court.

1. His Honour enquired about the effect of intoxication at the trial and asked what the issues were likely to be. Mr Carty, counsel for the respondent, said, as had been stated in his solicitor's affidavit, that the only live issue in the trial would be whether the trier of fact were satisfied beyond reasonable doubt that the respondent had the specific intent required for proof of the first count, given the substantial evidence of gross intoxication. Counsel reminded his Honour that the respondent had said in an interview with police that he had no memory of the assault. Counsel also reminded his Honour that to make out the mental element necessary for the first count the Crown had to prove an intent to penetrate the mouth. That was how the Crown had particularised the sexual intercourse referred to in the first count. The debate continued and Mr Carty repeated on a couple of occasions that the issue would be whether the Crown had proved specific intent.

1. Some discussion followed about the evidence of two experts whose reports were in evidence, Associate Professor Starmer and Dr Perl, both forensic pharmacologists.

1. The debate turned to the reasons why his Honour should make the order. In his affidavit the respondent's solicitor had put forward as justifying the order that the discrete factual issue for trial did not involve the application of community standards, that there was a real potential for community revulsion and that there would be unfair prejudice towards the respondent if he were tried by a jury. The affidavit left unclear whether the prejudice contended for flowed from the asserted revulsion or whether perhaps it was intended to be connected to a statement earlier in the affidavit that the accused was an Aboriginal man.

1. Counsel informed his Honour that the expert evidence was not contentious. Both experts apparently agreed on the effects the relevant substances could have on the human body, that the respondent appeared from reports to have been well affected by some substance or substances and that it was not possible to calculate his blood alcohol concentration or to assess the effect on him of a drug he was reported to have consumed. They agreed that the respondent was obviously drug affected when he arrived at the hospital. Both spoke in terms of his ability to appreciate the consequences of his actions, opinions which did not appear to bear upon the issues Mr Carty had raised.

1. The debate continued and there is this passage at T10-11-

HIS HONOUR: I haven't read this case and I need to read this case but it's sounding awfully like a jury question to me.

CARTY: Well that question in my submission-

HIS HONOUR: The only other thing that - and you might want to address me on this because I haven't turned my mind to it, and that is that the nature of the conduct, just as a reference - is likely to start you off on the back foot. But one of the problems is that any conduct that's before a jury is usually..(not transcribable)..on the back foot if there's an allegation of wrong doing.

CARTY: But here it's different because it will be here that there will be no-

HIS HONOUR: We've got a hospital. We've got a nurse trying to do the best she can.

CARTY: Yes.

HIS HONOUR: And we've got a patient being abusive like in a bad way.

CARTY: An unprovoked assault. Yes.

HIS HONOUR: That's really the only factor I think that you legitimately have going for you and it's a question of whether I should take it away from a jury.

CARTY: Yes I think that's right your Honour, although there is - it's my submission that your Honour could take into account the fact that a judge alone trial would be shorter and perhaps more efficient and also that in a judge alone trial the judge would be required to give reasons. And the giving of reasons does enhance the administration of justice in my submission. Although Belghar I must concede that in Belghar the Chief Judge expressly said that in his view the fact of the giving of reasons is not a matter that's to be taken into account.

HIS HONOUR: I'd be inclined to agree with him.

CARTY: But the other two judges didn't really - although Hidden J expressed an opinion that he agreed with the Chief Judge, he said he'd prefer to express no concluded view about the matter. And Hislop J had the same approach, said it was not necessary to determine that issue. Belghar really, the main - it was dealt with on the fact. The Crown appeal was allowed because the learned judge had accepted that there would be prejudice against the accused who was a Muslim and it was a matter that was related to Orthodox Muslim views about the role of women in society but the court in Belghar, Court of Criminal Appeal said well there was no evidence of that.

CROWN PROSECUTOR: That there was a prejudice towards--

CARTY: Yes, there was no evidence of the likelihood of prejudice.

HIS HONOUR: So there was in one sense no evidence of the likelihood of prejudice before me but I would have thought it was a matter of common sense.

CARTY: Yes.

HIS HONOUR: Whether in the light of that -I mean--

CARTY: I don't think I'm able to stress the accused's Aboriginality so much in support of the application. It's more the facts of the case that I rely on as giving rise to prejudice.

HIS HONOUR: If you want to express it as the accused's Aboriginality you've got to bite the bullet to demonstrate that a change of venue would not be an appropriate outcome if there was an issue of racism.

1. Mr Carty did not respond in such terms. The debate moved to the possibility of a change of venue.

1. The Crown addressed his Honour and there was this exchange-

CROWN PROSECUTOR: Well just as I understand it the submission that is now being made is that the reasons for there to be a judge alone trial are that a trial may be shorter or more efficient. If I can firstly deal with that. As I understand the reasons given by the Chief Judge at Common Law and your Honour will have regard to para 111 of the judgment, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies and the operation of the court which may be available from a judge alone trial.

HIS HONOUR: Overall efficiency may come at too high a price, that's the way I would put it if you lose your jury trial.

CROWN PROSECUTOR: Yes. And that was picked up by Hidden J at para 120. The perceived desirability of reasons for a verdict and the efficiency of the conduct of a criminal trial may well be matters of policy et cetera, however as the law stands I can see little or no place for either consideration in determining the appropriate mode of trial. And similarly in the same paragraph Justice Hidden dealt with the fact that judges give reasons whereas the jury reasoning is okay. That was also a point that did not find favour with the Chief Judge of Common Law.

As to the issue of - well firstly perhaps revulsion, it's a matter in the court's experience of course and as your Honour noted most of these cases that do come to trial do involve some aspect of very distasteful behaviour. It's not a case involving extreme violence. It's not a case where in fact the accused did ejaculate or was involved in an act that was of a nature so reprehensible that itwould attract in my submission the ordinary feelings from the community that someone must be punished. And by that I'm referring to cases perhaps such as extreme paedophilia or the possession of child pornography or a type of a murder or assault where there's a high level of sadism.

In my submission to your Honour although this is a case - and your Honour has identified of course that the victim does perhaps to some degree enjoy a position in the community where her profession is held in high regard. In my submission your Honour that's a relatively--

HIS HONOUR: The Florence Nightingale factor.

CROWN PROSECUTOR: Yes. But in my submissions your Honour that doesn't elevate the circumstances in this trial beyond - or so far beyond the ordinary that it would attract the exercise of your Honour's judgment.

Can I say to your Honour that in terms of aspects of prejudice the decision in Belghar at the end would seem to be very firmly that while individuals may have concerns about prejudice if they came from community groups that identified as being perhaps the subject of a general prejudice, that was not a matter for judicial notice and nor was it something the court could take notice of unless there was particular evidence and unless the court felt that those types of things could not be dealt with by way of a direction to a jury. I accept what's been said about the change of venue and it may be that that's a matter that the chief judge of the District Court would take into account in telephone call over.

HIS HONOUR: The other thing that needs to be understood is that by both parties I think which is that specific intent can sometimes be formed by people who are in a terrible state of intoxication or whatever.

CROWN PROSECUTOR: Certainly.

HIS HONOUR: And that is surely a matter that can be taken into account on sentence. I may be wrong about this, because it lacks the malice of planning and cold hard calculated..(not transcribable)..

CROWN PROSECUTOR: I shouldn't find any for the Crown but I agree with what you Honour says. This is a matter that would not have occurred I expect other than for the fact of severe intoxication.

HIS HONOUR: It's hard to imagine that it would happen.

CROWN PROSECUTOR: Can I say to your Honour, just going back to Belghar for a minute, if your Honour goes to para 90, the Chief Judge notes that in considering an application under the section apart from matters where the court might take judicial notice the court is confined to the evidence placed before it in the application. Paragraph 96 might be of some assistance to your Honour because it would seem to establish, and I think Hidden J agreed with this, that there is no presumption the trial should be with the jury but that that is the default position in this State by the operation of the legislative provisions.

The Chief Judge went on to note that the accused person carries an evidentiary onus and that also was picked up by Hidden J at para 118 of the judgment and perhaps is expressed quite articulately there. About halfway through or a third of the way through para 118,

"It is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial, which is jury trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case and the approach of the parties should not be-"

So it would seem as your Honour identified the test really is the-

HIS HONOUR: In which case my suggestion is it comes at too high a price. I'm a great believer in jury trials I'm afraid.

CROWN PROSECUTOR: Well your Honour there is a thread that runs through certainly the judgment given by the Chief Judge at Common Law that that would be his position and although he comes to the view that I've indicated to your Honour in his judgment-

HIS HONOUR: If there is no presumption it should be a jury trial then this concept of overall [efficiency] comes at too high a price. It's a slightly different issue I suppose.

CROWN PROSECUTOR: Yes. Because I mean separately to that idea of there being a presumption one way or the other what his Honour does say or is at some length to point out is that there are advantages that have been recognised historically to the trial by jury mode and--

HIS HONOUR: Well one of the advantages of trial by jury can give you, and don't know whether it will do it in this case, that is the mercy verdict.

CROWN PROSECUTOR: Yes and that's remarked upon in the judgment. But it's of course, it's balancing the interests of justice for the community and all of the parties. It's not the one party. Perhaps the only other matter that I would specifically point to your Honour as being something that the Crown relies upon is that the matters that are set out in s 132, subpara (5), as I understand it are it's not an exclusive list but it sets out criteria if you like that have been the subject of remarks by other judges considering the issue of trial by jury or a judge.

HIS HONOUR: I notice this is contended not one of the matters in that list.

CROWN PROSECUTOR: No but if your Honour goes to para 24 of the case of Belghar, Chief Judge of Common Law refers to a decision from the High Court in AK v Western Australia, a 2008 case reported at 232 CLR 438 and there's a discussion of the judgment of Heydon J and an extract from what Heydon identified as being five advantages of a trial. And in that towards the bottom of the page in the second last paragraph it's not numbered because it's an extract of the other judgment. There's discussion of the criteria what was then s 118 subpara (6) of the Criminal Procedure Act lists the factual issues requiring the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity, dangerousness and then Heydon J appears to have gone on to say "other examples of factual issues requiring the application of objective community standards include where the 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.

And in my submission to your Honour although it is a little different from the criteria in fact listed in subpara (5). Your Honour can see that there's an application generally to that principle that it represented at the community perhaps best able to from their own experience judge levels of intoxication an whether or not an intention was in fact formed.

HIS HONOUR: I'll try and give a decision in this tomorrow morning.

CARTY: Yes your Honour. If I may just raise one matter? I take your Honour to para 100 of the Chief Judge at Common Law's judgment. He says,

"When alleged offence involves objective community standardsparliament has made plain that it may be preferable in the interests of justice that there should be a trial by jury. However, where as in the present case the trial will not require the application of community standards to resolve any issue the factors favouring a jury trial are diminished at least by the absence of that factor."

And the issue it would seem in this trial of Belghar was what was the intent of the accused when he took hold of the complainant who was seated on a rail. He said it was to stop her falling. She said it was to - or the Crown case was that he was intending to push her. So I just point that out to your Honour.

1. His Honour gave judgment on the following day. He dealt first with the nature of the application and the issue for trial, he summarised the facts, paraphrasing them sometimes but generally following the text of the document I have extracted. His Honour noted that the respondent had no memory of events and that counsel did not require the complainant to attend for cross-examination. He dealt with things the respondent was reported to have said and what they might have meant. He dealt with the expert evidence. He set out the relevant parts of s 132. He dealt with the principles of trial by jury and made particular reference R v Belghar [2012] NSWCCA 86, R v Fardon [2010] QCA 317 and Brown v The Queen [1986] HCA 11.

1. His Honour turned to the matters put forward by the respondent as justifying the orders sought, referring in terms to the solicitor's affidavit, and continued -

37. I am of a view the question of whether the accused did form a specific intent is a question of fact for the Tribunal of Fact however constituted. Whether the ultimate outcome can be assisted by the tender of expert evidence is moot, but if so, juries can be assisted by submissions and directions in assessing the value and impact of expert evidence. Indeed in this case both parties have been in agreement as to the effect of the drugs even though I do not regard the conclusions of the experts as having any relevance to the question of specific intent.

38. As I understand the argument relying upon s 132(5) was all but abandoned by the defence. In any event it would not provide a basis upon which I would order a judge alone trial. As to the potential revulsion I note the following aspects. Paragraph 6 of the affidavit. The accused is an Aboriginal man. He was grossly intoxicated at the time of the incident that is the subject of the trial. He says he has no memory of the assault.

● The defence have no evidence to contradict the factual scenario which will be put forward by Crown witnesses.

● On arrival at the hospital the accused was placed in a hospital gown.

● At 4.10 am the accused became aggressive sufficiently for Dr Finlay to be notified and advice sought.

● Pursuant to Dr Finlay's advice Valium was administered with apparent paradoxical aggressive impact with the optimum impact being at about 5.00 am.

● At 5.00 am the accused said "Come here". He was naked and had an erection.

● When his demand was not met he threw a urinal bottle at the nurses' station where both nurses apparently were.

● He next stands naked, black, holding his penis.

● KF attempts to flee to safety, the accused catches her, still naked/black and with an erection.

● He pulls clumps of hair while she is on the ground and he is naked black and with an erection.

● The accused says "Put this in your face" and jabs his black penis in her face, still erect as I understand it.

● Her necklace is broken as he pulls her back as she tries to crawl away.

As help arrives the accused flees while still naked and is found in a maternity ward. I doubt that the "maternity ward" location advances the Crown case and that any prejudice or revulsion arising from that description could easily be overcome by the use of the words "another ward".

39. The accused has been in custody for some nine months, his trial is unlikely to proceed at Moree where the court is presently conducted. It is likely his trial will be though in a country town; Tamworth and Armidale, Coffs Harbour have all been mentioned as possible sites.

40. As unpleasant as it may be to so acknowledge, racism is more prevalent in rural and remote regions than it is in metropolitan regions. Unfortunately it is not a matter that can be adequately the subject of evidence because of its very nature, its very presence is frequently denied and at times it is applied without conscious thought.

41. On the other hand there is screening done at the commencement of any jury trial with a view to having those who have some potential or real conflict of interest to step aside. The question is what confidence can there be in this process weeding out those who may nonetheless have a predisposition to racism or an abhorrence of violence or sense of horror at the uncontested circumstances of this case to such a point that would see their objectivity compromised.

42. I accept there is an importance in the public having a sense of confidence in the administration of criminal justice. Frankly I do not see that sense of confidence being undermined when in appropriate cases a judge is allocated to sit alone, determining the guilt of an accused.

43. There is also some concern about the impact that this trial may have upon jurors. This is not a matter that seems to have been discussed in other trials but it is well known that notwithstanding counselling facilities being available the very fact that counselling facilities are made available to jurors indicates that there are impacts lingering long beyond the announcement of a verdict. This trial has some fairly abhorrent aspects attaching to it.

44. Also of some importance is that the parties to this litigation should be given every opportunity to have confidence in the administration of justice in their case. That is particularly so for a party who is present by virtue of command and contesting his guilt. Surely this was one of the underlying aims of s 132. I note also in that aspect that the conclusion of para 99 that I earlier referred to in the Chief Judge's reasoning in Belghar makes this observation after having noted that the trial by jury was to provide protection and yet there was a waiver of right for protection. His Honour continues:

"For this reason the subjective views of an accused and his or her belief that a jury trial may not be fair is reflected in his or her desire to dispense with a jury must be a relevant factor."

45. While the objection of the Prosecutor is a trigger that compels the enquiry being made before me, one of the interests of justice is to ensure fairness to both parties. That is to say the decision to institute a judge alone trial must be done with a balanced view about what is fair to both parties. The objection by the Prosecutor should not result in the prosecution obtaining any advantage or incurring, incidentally, any unfair disadvantage. The interests of justice also needs to focus upon whether there is any impediment to be found in the prospects of the trial by judge alone producing an outcome that would not reflect on the evidence available the true state of affairs. Finally the interest of justice requires that the trial procedures and process would not be compromised.

46. In my view the level of revulsion attracted by the circumstances of this case are at such a level that it is in the interests of justice, according to the criteria I have identified, to order that the trial of the accused be done by judge sitting along. I make that order. (Emphasis added)

The Argument on Appeal

1. Mr Pickering SC for the Crown drew attention to his Honour's summary in dot-point form of the agreed statement of facts and to the repeated addition of the word "black", then to his Honour's remarks at paras [40], [41]. Mr Pickering submitted that, having put aside any argument based on the application of community standards, his Honour decided the application on two bases, namely the revulsion the jury would experience from the facts and the likely irremediable prejudice of a country jury against an Aboriginal accused. The Crown attacked both bases as incapable of justifying the order appealed from.

1. In written submissions Mr Smith, counsel for the respondent in this Court, submitted that although his Honour referred to the fact that the respondent was an Aboriginal man and to racial prejudice, that did not guide or affect the decision for a trial by judge order. His Honour decided the issue on the level of revulsion the jury might feel. There was evidence on which his Honour was entitled to reach that conclusion. The Court should not interfere with a judgment made within the proper limits of the discretion of the primary Judge.

1. Mr Smith candidly added in oral submissions that if, contrary to his submissions, this Court concluded that his Honour decided the application on the basis of racial prejudice, he would not seek to defend the order on that basis.

The Law

1. By s 132 (4) of the Act his Honour was required to consider whether it was in the interests of justice that a trial by judge order should be made. That formulation conferred a wide discretion on his Honour. DAO v R [2011] NSWCCA 183 was an appeal against a decision made by a trial judge under s 97(1)(b) Evidence Act 1995. The operative words of the subsection were "the court thinks that". Spigelman CJ considered the words analogous to formulations requiring a Judge to be 'satisfied' and said that "consider" was equivalent to "be satisfied". Accordingly, a decision of a primary judge who is required to be satisfied or to consider is reviewable only on the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499.

1. A high degree of judicial restraint is required when an appellate court is asked to review such a decision; DAO v R per Spigelman CJ at [55]; R v Belghar [2012] NSWCCA 86 per McClellan CJ at CL at [87].

1. There will be error in the exercise of the discretion of the primary judge where the judge acts on a wrong principle, brings to bear extraneous or irrelevant matters, mistakes the facts or fails to take into account some material consideration or if the decision is unreasonable or plainly unjust: House v The King at 505; DAO v R at [78].

Consideration

1. Apart from the agreed statement of facts and the experts' reports, the only evidence before his Honour was the affidavit of the respondent's solicitor. Although the solicitor stated that the respondent was an Aboriginal man it contained no suggestion that he might on that account fail to receive a fair trial at the hands of the jury. The topic of racial prejudice arose obliquely when counsel were addressing his Honour on the judgment of this Court in R v Belghar. Mr Carty had been speaking about the efficiency of a trial by judge alone and the benefit in such a trial of stated reasons. That was a subject dealt with in R vBelghar. In fact the majority of the Court, Hidden and Hislop JJ, had preferred not to discuss that issue and the principal question, about which the Court was unanimous, was that the primary judge had decided the case on a fact found without evidence. The primary Judge had erroneously concluded that there would be prejudice against the accused, who was a Muslim. Mr Carty was not asserting that the respondent risked prejudice on racial grounds. It was only after Mr Carty's submission that his Honour introduced the question of prejudice to the respondent. In response to his Honour's observation that he would have thought prejudice was a matter of common sense, Mr Carty said that he did not think himself able to stress the accused's Aboriginality so much in support of the application.

1. Counsel in this Court agreed that racial prejudice was no part of the respondent's case before the primary judge. Consistently, that topic was eschewed in this Court.

1. When the Crown Prosecutor came to address his Honour he pointed out that while individuals might be concerned about prejudice if they came from community groups identified as being perhaps the subject of a general prejudice, that was not a matter for judicial notice, nor was it something the court could take notice of unless there were particular evidence about it.

1. Shortly afterwards the Crown Prosecutor referred his Honour again to R v Belghar and the observations in that case of the Chief Judge at Common Law, that apart from matters of which the Court might take judicial notice, the primary judge was confined to the evidence placed before it. As the Crown Prosecutor pointed out, Hidden and Hislop JJ agreed.

1. In this Court Mr Smith, referring to his Honour's statement at [41] of the judgment, pointed out that his Honour was dealing disjunctively with two topics. The first was about the process of "weeding out" those who might have a predisposition to racism, the second about the process of "weeding out" those who might have an abhorrence of violence or a sense of horror at the facts. So, the submission continued, what might at first have appeared to be a judgment about the risk of racial prejudice was seen to be based instead on the abhorrence of violence and sense of horror that might affect members of the jury arising out of the facts of the case. As to that, it was submitted, there was evidence before his Honour. Mr Smith went onto submit that in para [46], the last paragraph of his Honour's judgment, there was no mention of prejudice on account of race. The matter was determined on the "level of revulsion" provoked by " an abhorrence of violence or sense of horror" in the context of the "uncontested circumstances" of the case. The matter was not determined on the basis of racial prejudice or a predisposition to racism.

1. Although the meaning of the expression "according to the criteria I have identified" in his Honour's last paragraph is unclear, I accept that his Honour's decision was informed by his assessment of the seriousness of the facts, coupled with the fact that the respondent had no answer to them, and the effect those facts might have on the jury. I am not prepared to accept, however, that his Honour's apprehension of racial prejudice was not also a reason for making the orders sought. I have considered Mr Smith's argument based upon the latter part of para [41] but do not think, reading that paragraph with para [40], that his Honour was intending to restrict himself to his concern about the striking nature of the evidence. If that is what his Honour had intended to do there would have been no need to mention racism at all.

1. The transcript of the debate and the judgment shows that this was a topic about which his Honour was concerned throughout. His Honour first raised it as applicable to the respondent, though there was no logical connection between the issue in Belghar and any issue in the present case. His Honour remarked that he would have thought it a matter of common sense. When counsel drew back from putting his case on that basis his Honour pressed the question, telling counsel that he would have to bite the bullet that the change of venue would not solve the problem of racism.

1. The next sign that this matter was weighing on his Honour's mind was that, when reviewing the facts for the second time his Honour repeatedly inserted the word "black", something not appearing in the evidence and not coming from either counsel.

1. Putting all this together, I have come to the view that his Honour concluded that any jury sworn to try the respondent was likely to be racially prejudiced. That was a finding made outside the ambit of counsel's arguments and without evidence. In my opinion his Honour erred in bringing an extraneous matter to bear in coming to his decision.

1. His Honour also concluded that the process normally resorted to of identifying members of a jury panel who might not be able to bring an impartial mind to the issues and excusing them would not protect the respondent from the risk of an unfair trial. That conclusion was no more than his Honour's opinion, unassisted by evidence or submission. The Jury Act 1977 provides for members of jury panels to be drawn from a wide cross-section of the general community. Their selection for service is random. The Sheriff and the trial court have wide powers to excuse potential jurors, including those it is suspected might be unable to bring a fair mind to the issues. At the commencement of any criminal trial the Crown must outline for the jury panel the nature of the charge and name the persons involved. It is then that the Court invites panel members to raise matters of concern and to excuse those it is appropriate to excuse; Jury Act ss 9,12, 25, 38.

1. His Honour failed to consider the measures available to the Court to warn members of the jury against allowing prejudices to influence them in their decisions. The law assumes, and trial judges are required to assume, that jurors will follow the directions of law given and that they are followed: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [31]; R v Burrell [2004] NSWCCA 336.

1. In my opinion his Honour fell into error in coming to the conclusion that any risk of juror prejudice could not be averted by resort to the appropriate procedure. That was an error of principle justifying intervention by this Court.

1. I would uphold the appeal and quash the order for a trial by judge.

The Disposal of the Application

1. The Crown asked the Court, if it upheld the appeal, to dismiss the application. The Court has power to do so. By s 5F(5) Criminal Appeal Act 1912 the Court on hearing an appeal under the section-

(a)   May affirm or vacate the judgment, order, decision or ruling appealed against, and

(b)   If it vacates the judgment, order, decision or ruling, may give or make some other judgement, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.

1. Mr Smith opposed such an order and asked the Court, if the appeal were upheld, either to make the trial by judge order or to remit the matter to the District Court to be dealt with there.

1. I think that this Court should bring the matter to an end. The respondent was arrested at the hospital and has been in custody now for more than 15 months. The Court has been informed that his trial has been fixed for hearing in August. The interest of justice require that there be no further delay. It has not been suggested that if the matter were sent back to the District Court to be dealt with according to law any further evidence would be tendered. The evidence is in short compass and is known to this Court.

1. In deciding whether or not to make an order for trial by judge alone the Court must decide where the interests of justice lie. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. The Court should not assume that either form of trial is more desirable than the other: Arthurs v State of Western Australia [2007] WASC 182 at [75]; R v Belghar at [49]. The interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made: R v Belghar at [96]. An applicant bears no burden of proof. However, the applicant does bear an evidentiary burden. The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46].

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

1. Mr Smith submitted that three matters justified the Court's making the order, namely-

(1)   The prejudice which the nature of the evidence was likely to engender in the jury.

(2)   The complexity of the expert evidence, leading to the desirability of a judge's trying the facts and giving reasons.

(3)   The fact that no question would arise at trial requiring the application of community standards.

(1) The Facts of the Case

1. The gravity of the events about which there can be no challenge may be summarised thus-

(a) The respondent was a patient in a public hospital in a small country town.

(b) He was under the care of the complainant, a registered nurse, who was going about her duty.

(c) The respondent was influenced by the alcohol and other drugs he had taken.

(d) The respondent was naked and his penis was erect.

(e) Without justification or warning the respondent approached the complainant, uttering offensive and degrading words.

(f) Regardless of whether he had the specific intent charged, the respondent intended to perform some sexual act on or in the presence of the complainant.

(g) The respondent chased and caught the complainant, knocking her or causing her to fall to the floor. He pulled her hair from her head. He jabbed his penis into her face.

(h) The respondent acted so violently that police officers had to handle him forcibly and handcuff him.

1. In my opinion the evidence of these facts is likely to engender disgust in, to shock, any member of the jury hearing the case. But, leaving aside the question of degree, the facts are of a kind ordinarily heard by juries in criminal cases in this State. It is common for the Crown to put before juries evidence in explicit and detailed form of violent acts, of a sexual nature or otherwise, committed on helpless victims, some of them children. It is common for the Crown to adduce explicit evidence of serious injury to victims of crime which often results in disfiguring and permanent injury and disability, even death.

1. Trial courts in this State are required to ensure that members of jury panels are informed about the cases they may be called on to judge and to entertain applications from panel members who wish to be excused because they think they may be unable to bring a fair mind to bear on the issues. Trial judges routinely ensure that this is done.

1. Trial courts assume that members of juries may be prejudiced. They assume that members of juries may react emotionally to disturbing evidence. That is why trial judges always warn juries that they are not to allow emotion or prejudice to play any part of the process by which they reach their decisions.

1. In Gilbert v the Queen Gleeson CJ and Gummow J wrote at [13] -

13 The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice

1. Accordingly, this Court assumes both that the judge who presides at the respondent's trial will warn the members of the jury, if there is one, that they are not to allow any prejudice they feel to affect their decisions and that the jury will understand and follow the direction.

1. In my opinion any prejudice towards the respondent resulting from the evidence likely to be put before a jury can be adequately dealt with so that it does not inform the verdict of the jury.

(2), (3) The Complexity of the Expert Evidence and the Application of Community Standards

1. These two topics can be dealt with together.

1. It is necessary to say more about the evidence of Associate Professor Starmer and Dr Perl. In his report of 3 September 2012, Associate Professor Starmer recited the facts, noting that the respondent's behaviour strongly suggested that he was under the influence of a drug. He continued thus under the heading Opinion -

1. Mr Stanley told Police- that, prior to the incident, he had consumed "2 cartons of rum''. If it is assumed that he had consumed 48 cans [375 ml) of pre-mix rum [assumed to contain 4.8% alcohol by volume], this would have delivered 340.9 g of alcohol, or approximately 34 standard drinks. It is not possible to estimate what Mr Stanley's blood alcohol concentration would have been because the time he started drinking is not known. However, the amount of alcohol consumed is most likely to have resulted in gross intoxication.

1.1. It is generally accepted that in non-tolerant individuals, memory is suddenly lost as the blood alcohol concentration rises past a level of about 0,150g/100ml, Complete memory loss is often associated with gross alcohol intoxication. An alcoholic blackout (alcohol-induced loss of memory) is defined as the temporary, complete inability to form long-term memory as the result of a high blood alcohol level. Blackouts are frequent in the heavy alcohol user although they can also occur in a "social" user of alcohol. It has been demonstrated that large amounts of alcohol block memory formation. This blockade results in an inability to place any events that occur while under the influence of alcohol into any memory store. A blackout is not really forgetting, rather, it is not remembering. It has also been demonstrated that a person may behave similarly during an alcohol-induced blackout to other occasions when, although highly intoxicated, memory is retained. It has also been suggested that because of an inability to retrieve information from long-term memory, an individual's capacity to fully appreciate his actions while intoxicated may be severely diminished. Such alcoholic blackouts normally require high blood alcohol concentrations - above about 0.250 g /l00 ml, which might well have been attained by Mr Stanley.

2. Mr Stanley told Police that, prior to the incident, he had injected about 20 or 30 lines of "oxycoton". I assume that he was referring to OxyContin, which is a proprietary (Mundipharma) preparation of oxycodone, a full opioid agonist whose principal therapeutic action is analgesia. Oxycodone is similar to morphine in its action. Therapeutically, it is used in the management of moderate to severe chronic pain unresponsive to non-narcotic analgesia. Adverse drug reactions are typical of full opioid agonists. In. normal doses, the most common side effects of opioid analgesics are nausea, vomiting, constipation, drowsiness and confusion. Micturition may be difficult and there may be ureteric or biliary spasm; there is also an antidiuretic effect. Dry mouth, facial flushing, sweating, anorexia, faintness, vertigo, bradycardia, supraventricular tachycardia, syncope, palpitations, orthostatic hypotension, hypothermia, restlessness, changes in mood and miosis also occur. Larger doses of oxycodone may produce respiratory depression. With the exception of constipation, side effects tend to reduce with time. Oxycodone may modify patients' reactions to a varying extent depending on die dosage and individual susceptibility. If their ability is impaired, patients should not drive or operate machinery. Concurrent use of central nervous system depressants (including alcohol) with oxycodone may result in increased respiratory depression, hypotension, profound sedation or coma. Caution is recommended and the dosage of one or both agents should be reduced. However, there is no information to suggest that oxycodone influences the pharmacokinetics of alcohol.

2.1 As with other opioids, tolerance and physical dependence tend to develop upon repeated administration of oxycodone. There is potential for abuse of the drug ana for development of strong psychological dependence.

2.2 The OxyContin formulation provides for a controlled release of the drug from tablets. The Oxynorm formulation is available as oxycodone-containing capsules and liquid. It is not clear -whether Mr Stanley was injecting crushed tablets of OxyContin or oxycodone obtained from the Oxynorm formulation. It is not possible to comment on the dose of oxycontin that Mr Stanley might have injected since, with ""street drugs" the identity and potency of the sample are always open to question, as is the nature of any adulterants which may be present

3. Mr Stanley told Police that prior to the incident, he had used "speed". "Speed" is a powder or paste from of methylamphetamine which is usually about 10% pure. This form of the drug can be insufflated (snorted), injected or taken orally- Methylamphetamine is closely related chemically to amphetamine but has more prominent central nervous system effects and less peripheral effects at low dose. It is thus often preferred to amphetamine by abusers.

3.1 The amphetamines have a large number of pharmacological actions, most of which are a consequence of their sympathomimetic action. In the central nervous system, amphetamine causes the release of catecholamines from nerve endings and the resulting noradrenergic hyperactivity is probably responsible for the marked increase in wakefulness, alertness, speed of response and amount of voluntary activity seen after amphetamine. Amphetamines also have a euphoriant action and users commonly report feeling happy or enthusiastic after taking the drugs. The only legitimate clinical uses of amphetamine are in the treatment of narcolepsy and attention deficit disorder. Methylamphetamine has no legitimate clinical uses in Australia but is available on the illicit market.

3.2 The toxic effects of amphetamines are extensions of their normal pharmacological actions. Thus, cardiovascular signs include headache, hypertension, pallor and palpitation. With amphetamine overdose, central nervous system signs include hyperreflexia, restlessness, talkativeness, insomnia, sleep disturbances, violence and increased libido. There is also speeding of mental processes to the extent that the subject becomes submerged in a flood of thought associations and the attention jumps rapidly and ineffectually from one thought to another, as in a manic psychosis.

3.3 While it is possible that the central nervous system stimulant effects of methylamphetamine could have partially offset the depressant effects of oxycodone and alcohol, none of the doses of these substances is known, so it is difficult to speculate on the combined effect. However, it is dear that when Police first came into contact with Mr Stanley, shortly after 2 am, he was obviously drug-affected.

4. At 4.20 am, Mr Stanley was given 5 mg of Valium. Valium is a proprietary (Roche) formulation of diazepam, a member of the group of classical benzodiazepines which exhibits anxiolytic, sedative, muscle relaxant and anticonvulsant effects. This is presumed to be the result of facilitating the action in the brain of gamma-aminobutyric acid, a naturally occurring inhibitory transmitter. Diazepam is used for management of anxiety disorders or for his short-term relief of the symptoms of anxiety, Diazepam is also a useful adjunct for the relief of reflex muscle spasm due to local trauma (injury, inflammation) to muscles, bones and joints. Sedation/ amnesia, impaired concentration and impaired muscle function are associated with the use of diazepam. Diazepam interacts with alcohol in a manner which is more than additive. That is, the effects of the combination are greater than would be expected from the sum of the component parts.

4.1 Transient amnesia or memory impairment has been reported in association with the use of benzodiazepines. Anterograde amnesia may occur using therapeutic doses, the risk increasing at higher doses. Amnestic effects may be associated with inappropriate behaviour.

4.2 Paradoxical reactions such as restlessness, agitation, irritability, aggressiveness, delusion, nightmares, hallucinations, psychoses, inappropriate behaviour and other adverse behavioural effects, acute rage, stimulation or excitement may occur and are more likely in children and the elderly.

4.3 After oral administration, diazepam is rapidly and completely absorbed from the gastrointestinal tract, peak plasma concentrations appearing 30 to 90 minutes after oral intake. The incident occurred at about 5 am, some 40 minutes after Mr Stanley had taken diazepam, i.e. at a time the drug would be expected to be reaching maximum effect.

5. In conclusion, it appears that Mr Stanley was obviously drug-affected when he arrived at the hospital. J consider that he would not have been able to appreciate the consequences of his actions at that time and that this situation could well have been exacerbated after he had taken diazepam, which could have had a paradoxical stimulant effect. His lack of memory of the events is consistent with the known effects of high blood alcohol concentrations and benzodiazepines.

1. In her report of 12 September 2012 Dr Perl mentioned the witness' statements she had read, including a transcript of the respondent's interview with a police officer. Dr Perl referred to Associate Professor Starmer's report and continued-

Police were called as a result of the unusual behaviour displayed by the Accused. He was found to be naked, appeared to be talking to himself but was incoherent, he appeared to fix his attention on objects, appeared to stare at the object for prolonged periods then his eyes would dart randomly in every direction before again staring at an object. He appeared to be having visual hallucinations, he did not respond to Police or verbal instructions, he was seen to be unsteady on his feet. He became verbally abusive and behaving inappropriately.

Police were informed by another person at the Accused's residence that the Accused had injected "speed" or "ice" intravenously.

The Accused indicated he used "speed", had 20, 30 lines of oxycodone and consumed a large amount of alcohol (thinks two cartons of rum and cola.

The accused was also administered 5 mg Valium at the hospital around 4.20 am. It appears the Valium was administered orally (notes indicate 5 mg PO).

The incident appears to have occurred sometime around 4.50 am.

Based on my specialised knowledge and the information provided:

1. I am of the opinion that the Accused appears to have been well affected by some substance or substances on the night of the incident.

2. I agree with Dr STARMER that it is not possible to calculate the Accused's blood alcohol

concentration based on the lack of information relating to when the alcohol was consumed.

3. I also agree with Dr STARMER that the effects of oxycodone are difficult to assess since the dose and timing of the dose are not known.

4. Similarly, it is difficult to determine the effects of the illicit drug "speed" or "ice" (both containing methylamphetamine) because the dose, time of use and tolerance of the Accused is not known. However, many of the symptoms displayed by the Accused between the time the Police had first contact with the accused and the time of the alleged incident are highly suggestive of the effects of gross intoxication by methylamphetamine.

5. I agree with Dr STARMER that diazepam can impair memory (as does alcohol and oxycodone) but paradoxical effects of a 5 mg dose of orally administered diazepam are highly unlikely (but not totally impossible). I do however note that in the record of interview the majority of answers provided by the Accused are simply "yeah" or "don't remember" and he did not appear to provide responses to the questions (which appeared to be allegations put to him rather than direct questions). Therefore his record "of interview does not assist me in forming any opinion.

6. In summary, based on the behaviours displayed by the Accused which was noted by Police, the hospital staff and the ambulance officers, it appears clear that the Accused was significantly drug affected and in such a condition he may not have been able to appreciate the consequences of his actions.

1. The relevant question is whether the Crown has proved beyond reasonable doubt that the respondent formed the intent to penetrate in the manner contended for. In answering the question the tribunal of fact will consider evidence of what the respondent said and did at the hospital, including his demeanour, what he told police he had consumed, what the pharmacological experts assumed as fact and their opinions of the capacity of the relevant substances to affect the formation of intent and, if it is available, their opinion whether the respondent did form the necessary intent.

1. The question is a simple one, of a kind of routinely answered by juries. In AK v Western Australia [2008] HCA 8, (2008) 232 CLR 438 Heydon J was discussing Western Australian legislation permitting orders to be made for trial by judge alone and the consequent duties of trial judges to give reasons for their decisions. His Honour reviewed Lord Devlin's writing on the advantages of trial by jury and noted his Lordship's description of trial by jury as "the lamp that shows that freedom lives': at [80] [90]. Heydon J continued thus at [95]-

[Lord Devlin] considered that trial by jury had a "unique merit" in "that it allows a decision near to the aequum et bonum to be given without injuring the fabric of the law, for the verdict of a jury can make no impact on the law". Thus Lord Devlin saw the jury as being for some purposes "the best judicial instrument" 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 (102). (Footnotes, save the last, omitted)

1. At footnote (102) Heydon J referred to portion of a paper entitled "Some Simple Thoughts on Intention" by Richard Buxton QC [1988] Crim LR 484 at 495. This is an extended extract of the paper, including the passage, which I have underlined, referred to by his Honour-

The present law: leave it to the jury

After the lengthy disquisition engaged in above it may come as something of an anticlimax for the reader to be reminded that intention in the criminal law is now in effect not an issue of law at all, but rather an issue of fact, to be determined by the jury without theoretical speculation and thus without theoretical guidance from the judge That approach is confirmed by the two Court of Appeal cases of Purcell and Nedrick, in which the Court analysed and set out the effect of Moloney and Hancock. From a practical point of view, therefore, as the Court of Appeal intended, further speculation on the meaning and implications of the House of Lords cases is unnecessary and, indeed, impermissible Those cases are to be interpreted as laying down that, save in some exceptional circumstances that we consider in the next section, the jury should be directed as to intention by the judge saying, and saying only

"You must feel sure that the defendant intended to cause [serious bodily harm] to the victim You can only decide what his intention was by considering all the relevant circumstances and in particular what he did and what he said about it "

We would respectfully venture two comments First, it might be thought unsafe, or alternatively anti-intellectual, to leave the decision in a matter that has long agitated the sages to the analytically unguided conclusion of 12 ordinary people. But, as Mr Duff has pointed out, the persistent difficulties encountered by successive codifiers in producing an adequate definition of intention suggest that recourse 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, in other words, that this may be one area where, to coin a phrase, the life of the law should indeed be experience rather than logic If we understand this philosophical view correctly, it stresses that the agent is a human being, just as the observers are, and that the observers should therefore use their understanding as human beings, shared with the agent as well as with each other, of the implications of the agent's actions and of what the agent says about those actions in order to assess the responsibility of the agent.

It does not-seem too high-flown to see in this approach an endorsement of the policy adopted in Purcell and Nedrick of leaving issues of intention to the judgment of the jury. Nor, on our second point of comment, is that view inconsistent with the reserve expressed above about the use in Moloney of examples drawn from ordinary language, or ordinary life, to illustrate the difference between intention and desire. The problem of those examples is that they do not specify sufficiently precisely the results caused by the accused for which responsibility is sought to be ascribed. However, in an actual trial it will inevitably be the case that the jury is directed to consider the accused's intention with regard to specific results caused or to be caused by him. We have little doubt that the jury's instinctive understanding of the implications of human action will cause them to consider that question in terms of the accused's purpose: just as the commentators to whom we referred above instinctively see purpose as the obvious, indeed inevitable, synonym for intention in the criminal law. (Footnotes omitted)

1. Mr Smith submitted that the passage referred to by Heydon J does not necessarily support the proposition that intention is a matter that relates to a community standard "such that it must require deliberation by a jury as opposed to a judge-alone trial".

1. 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,

1. I doubt whether the evidence of the pharmacological experts is likely to be complex. As their reports stand, they agree. They may continue to agree. A jury is not likely to have difficulty understanding opinions about the effects of alcohol and the other drugs mentioned on the mind, particularly the ability to form and the likelihood of the formation of intent. Such matters may not be wholly unfamiliar to jurors. Some may know at first hand some of the effects spoken about, at least of alcohol. Such jurors would be able to judge from experience.

1. I have taken into account the collateral benefits of trial by jury referred to by Gleeson CJ in Swain v Waverley Municipal Council. Bearing in mind, that the tribunal of fact will have to apply community standards in judging the formation of intent, I think that a jury is the preferable tribunal of fact. I think that this outweighs any need for reasons to be given.

1. In my opinion the interests of justice favour a trial by jury. I would dismiss the application.

1. I would make the following orders-

(1)   Allow the appeal and quash the order appealed from;

(2)   Dismiss the application for trial by judge alone.

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Amendments

05 June 2013 - typographical

Amended paragraphs: [5]; [32]; [42]; [44]

Decision last updated: 04 October 2013