R v Teshabaev

[2023] NSWDC 670

District Court

New South Wales

Medium Neutral Citation:

R v Teshabaev [2023] NSWDC 670

Hearing dates:

8 June 2023

Date of orders:

8 June 2023

Decision date:

08 June 2023

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The application is dismissed.

Catchwords:

CRIME – Notice of Motion for trial by judge alone – Alleged prejudicial evidence and need for interpreter cited as reasons in support of motion – Insufficient evidence to support application.

Legislation Cited:

Criminal Appeal Act 1912 s 5F(3)

Criminal Procedure Act 1986 s 132A

Evidence Act 1995 s 137

Cases Cited:

ArthursvWestern Australia [2007] WASC 182

RvBelghar [2012] NSWCCA 86, [89]-[104]

R v Simmons; Rv Moore (No 4) [2015] NSWSC 258, [83]-[89]

RedmanvR [2015] NSWCCA 110, [ 13]-[16], [22]-[23]

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Crown – R (NSW)
Defendant - Kodirjon Teshabaev

Representation:

Counsel:
Crown – Mr Bicanic, T.
Defendant – Mr Skinner, P.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Defendant – Makhoul & Associates

File Number(s):

2020/00352074

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: On 31 May 2023 the accused filed a notice of motion seeking the following order:

“Directions are sought for the leave of the Court under s 132A Criminal Procedure Act 1986 for the accused to apply to be tried by judge‑alone inside the 28 day period before the date fixed for the trial in the District Court; and that it is in the interests of justice to do so under s 132 Criminal Procedure Act 1986.”

This is, in fact, an application under s 132A of the Criminal Procedure Act 1986 (‘CPA’).

2. The matter is listed for trial commencing on 13 June 2023, that is next Tuesday. Today is Thursday, 8 June 2023. There is only one business day between today and when the matter is listed for trial, Tuesday, 13 June 2023, because Monday, 12 June 2023 is a celebration of the King’s birthday.

3. Under CPA s 132A(1), an application for an order under CPA s 132 that an accused person be tried by judge alone must be made not less than 28 days before the date fixed for the trial in the District Court except with the leave of the Court.

Curial History

4. The accused was arrested and interviewed by the police on 11 December 2020. Exhibit 3-3 is a transcript of an electronic record of interview given by the accused to plain clothes Senior Constable Michael Voyez at the Riverstone Police Station on 11 December 2020. He first appeared in the Parramatta Local Court on 12 December 2020. Eventually, the accused was committed for trial by the Local Court at Burwood, to this Court on 28 July 2021. The matter was first mentioned in this Court before Shead SC DCJ on 9 August 2021. The matter was first listed for hearing on or about 3 August 2022.

5. The matter was then before Harris DCJ. The matter was to be tried by her Honour with a jury. Her Honour made certain evidentiary rulings without a jury having yet been empanelled, which is normal in many trials. However, her Honour ruled as inadmissible certain evidence which the accused wanted to put before the Court. The accused made an application to the Court of Criminal Appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912.

6. On 26 August 2022, at the conclusion of argument, the Court refused leave to appeal. However, the reasons for judgment of the Court of Appeal were not delivered until 31 August 2022. They are to be found at [2022] NSWCCA 186, a judgment which is currently restricted.

7. On 11 November 2022, the current hearing date of 13 June 2023 was fixed by Henson ADCJ. In the meantime, the accused had sought special leave to appeal to the High Court of Australia. Special leave was refused on 16 March 2023.

8. As is clear from what I said at the commencement of these reasons, the current application was only made by way of notice of motion filed on 31 May 2023. There is no sworn testimony to support the delay in making the application that is currently before me. A number of reasons have been offered to me by learned counsel for the accused, Mr Skinner. He refers to some communication difficulties. The accused is an Uzbeki and speaks that language. He also speaks Russian, and as I understand it, his record of interview with the police on 11 December 2020 was given using a Russian interpreter. However, his ability in English appears to be sound. He did not need an interpreter during the hearing today, and was able to be arraigned on an indictment bearing date 7 June 2023, which I granted the Crown leave to file in Court today. It contains 15 counts and the accused pleaded not guilty to those 15 counts.

9. There are three counts of exposing a child under the age of 14 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity, an offence commonly known as grooming, and 12 offences of having sexual intercourse with a child under the age of ten years. The maximum penalty for a number of those offences is imprisonment for life.

10. Another reason put forward for delay was problems with funding, but when they arose or what they were has not been adequately explained. I can understand at times that it may have been difficult for counsel and perhaps the instructing solicitor to obtain instructions, but since the accused was first charged, about two and a half years have elapsed and the charges are very serious in nature and would, in any event, have required a trial in this Court. The delay has not been adequately explained.

Authorities

11. There are a number of authorities to be borne in mind. The first is R v Belghar [2012] NSWCCA 86 (‘R v Belghar’), essentially a decision of McClellan CJ at CL with whom Hidden and Hislop JJ agreed. Commencing at [89] his Honour said this:

“89 Section 132 in its amended form is similar to provisions for a judge-alone trial in legislation in Western Australia and Queensland. However, s 118 of the Criminal Procedure Act 2004 (WA) provides in subsection (3) that, when considering the application, the court may inform itself in any way it thinks fit.

90 Section 132 of the New South Wales Act does not contain a similar provision. Accordingly, when considering an application under the section, apart from matters of which the judge may take judicial notice, the court is confined to the evidence placed before it. In the present case the respondent did not give evidence. The submission on his behalf was confined to an assertion that he adhered to conservative Muslim values which would, in the circumstances of the alleged offence, inevitably raise prejudice in the minds of jurors. I shall return to this issue.

91 As I have indicated, the primary judge accepted the Crown's submission that an accused person carries the onus of establishing that an order should be made. The Crown criticised his Honour's decision because the primary judge later asked the Crown to indicate any prejudice that the Crown or the community would face if the application were granted. It was submitted that this question and his Honour's later response to the effect that the Crown had not demonstrated prejudice revealed error, because his Honour erroneously assumed that the Crown carried an onus.

92 With respect, the submission is misplaced. His Honour did not ask the question in a manner which reversed the onus. Rather he was inviting the Crown to identify from its perspective how the prosecution or community interests should weigh in his Honour's assessment of where the interests of justice lay when considering the application for a judge-alone trial.

93 Section 5 of the Criminal Procedure Act provides that an offence must be tried on indictment unless it is an offence permitted or required to be dealt with summarily. The trial will take place in the Supreme Court or the District Court. Section 131 of the Act provides that criminal proceedings in both courts "are to be tried by a jury, except as otherwise provided by this Part."

94 As Kirby P said of s 89(1) of the Supreme Court Act,but for subs (5) and (7), s 132 of the Act contains no guidance as to the matters which may inform the "interests of justice" when an application is made for a judge-alone trial. Subsection (5) does identify the circumstance where a trial may involve a factual issue "that requires the application of objective community standards" as being one occasion when it may be appropriate to refuse to make an order. Subsection (7) encourages a judge alone trial where there may be a substantial risk of interference with a juror. Neither subsection (5) or subsection (7) are of direct relevance in the present case.

95 The decisions in Western Australia are each of a single judge but for the decision of Commissioner Sleight. The decision of the Queensland Court of Appeal on the relevant sections in Fardon was obiter. The decision in Kissier accepted that the fact that an accused made an application was relevant but not determinative. I agree with that view but accept that I would be obliged to follow it in any event.

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

97 In Swain,as I have previously identified, Gleeson CJ identified what he referred to as the collateral advantages of trial by jury. Two interests are commonly identified. First, the community has an interest in ensuring that, where relevant to the issues to be tried, serious criminal matters are determined in accordance with current community standards. Subsection (5) expressly acknowledges this matter. Second, the community has an interest in ensuring that there is public confidence in the criminal justice system. The jury, as a means by which the public may participate in the processes of criminal justice, has been accepted as having a role to play in legitimating the operation of the criminal law, thereby enhancing public confidence in the administration of justice. However, it must also be remembered that less than 3 percent of the criminal trials in this State now take place with a jury: (McClellan CJ at CL, "The future role of the judge - umpire, manager, mediator or service provider" p 2, 1 December 2011).

98 Furthermore as the length of trials grow problems with juror satisfaction with the process have increasingly been reported. New South Wales Attorney-Generals Department, Report of the Trial Efficiency Working Group (2009) at 59-61. Furthermore, as Heydon J recognised, the duty of a judge to give reasons can operate to safeguard the public interest.

99 In so far as the origin of a trial by jury was to provide a protection for the accused, in that he or she would be tried by their peers, where the accused applies in accordance with s 132 for a judge-alone trial, it is plain that the accused has, with proper advice, determined that the protection is not required. For this reason the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in his or her desire to dispense with a jury, must be a relevant factor: Arthurs at [79]. The protection which trial by jury is assumed to provide to an accused person by requiring a unanimous verdict of lay judges is no longer of relevance. Of course, the position as determined in Brown is otherwise with respect to a Commonwealth offence, where s 80 of the Constitution controls the situation. However it must be remembered that Brown was a decision as to the meaning of s 80 and was not, at least so far as the majority were concerned, determined by where the interests of justice may lie. Rather, their Honours concluded the position was constrained by the words of the Constitution.

100 Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, "in the interests of justice", that there should be 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.

101 However, the decision that the judge is required to make must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused's trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused's apprehension is soundly based.

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

103 Although the foundation for a decision to order a judge-alone trial under s 132 is that it be in the "interests of justice." I understand that concept in similar terms to the approach which Kirby P took in resolving the issues in Pambula Hospital. The court must determine whether it is in the interests of justice in the particular case to provide for a judge-alone trial.

104 In the present case, although the primary judge had before him the records of interview of the respondent and the statements from his wife and the complainant, his Honour did not have evidence before him to allow an evaluation of whether the respondent's concerns had substance. The respondent's position was confined to a submission by his counsel that he feared that a jury may be prejudiced against him because of his conservative Muslim beliefs.”

12. In R v Simmons; R v Moore (No 4) [2015] NSWSC 258, Hamill J dealt with a number of matters that have been ventilated before me. His Honour discussed the issue of “prejudicial material”. His Honour said this:

“83.   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.

84.   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).

85.   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 has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario 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).”

86.   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).

87.   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”.

88.   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.

89.   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.”

13. His Honour went on in the following paragraph to discuss the decision of Arthurs v Western Australia [2007] WASC 182, a decision of Martin CJ where there was an application for trial by judge alone, largely as the result of adverse pretrial publicity. Such an issue does not arise in the current matter.

14. However, that decision was cited with approval by Adams J, with whom Hoeben CJ at CL and R A Hulme J agreed, in Bruce DonaldRedman v R [2015] NSWCCA 110. His Honour said this:

“13.   In R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 Hamill J (if I may say so with respect) comprehensively summarised the cases dealing with the application of s 132 of the Act, starting with the principle (to which reference has already been made) in Belghar that, although there was an evidentiary onus on the applicant, there was no presumption in favour of a jury trial and no legal onus on the accused who seeks an order for trial by judge-alone: the question is what is in the interests of justice. The next material point is that, although the accused has no right to trial by judge alone, his or her election for such a trial is to be taken into account as a matter to be weighed in determining where the interests of justice lie: Simmons at [60].

14.   The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales. As Hamill J noted, there are a number of judicial statements commending the ability of juries to assess credibility and reliability of witnesses but “…it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are essential to a trial, that is a factor that militates strongly in favour of a jury trial” (Ibid at 75). His Honour concluded –

[82] …[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 … [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[s] of credibility, putting aside matters of emotion, on an almost daily basis.

15.   (I would add the additional consideration that, here, the effect of delay on the ability of the applicant to defend himself is a complicating feature.)

16.   The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J 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” (Simmons at [53]). Furthermore, it is to be 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). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88]).”

15. Both the Chief Judge at Common Law and R A Hulme J pointed out that the decision in Redman turned on its own particular facts. R A Hulme J went on to point this out:

“21. There is an observation I wish to add concerning the fact that the application came before his Honour Judge Lerve on the very day the matter was fixed for trial (although he had been alerted to it the previous business day). The applicant required leave, his application not having been made "not less than 28 days before the date fixed for the trial": s 132A of the Criminal Procedure Act. An explanation for the lateness of the application was provided in the affidavit of the applicant's solicitor which was read in the District Court.

22.   The late notice to the trial judge was regrettable (at least) and meant that he was required to determine the application expeditiously, given that he had a jury panel in waiting. His Honour's reasons clearly demonstrate that he had a thorough appreciation of the legal principles to be applied but he was denied the opportunity that this Court has had for more timely consideration of their application. Another aspect of this is that I would hesitate before engaging in precise analysis of terminology used by his Honour in his ex tempore judgment (particularly as to his use of the term "quintessential jury issue").”

It is common ground that the case must be decided on the test of where the interests of justice lay.

Evidence Tendered

16. The evidence tendered by the accused as applicant is quite unsatisfactory. Exhibit 1.1 is a short affidavit from the solicitor with carriage of the defence case. The substance of the affidavit is this:

“2. I have been instructed to seek to apply for a judge‑alone trial.

3. I seek leave to do this within a 28 day period because it is in the interests of justice to do so.

4. The defendant, Kodirjon Teshabaev, needs the aid of a Russian or Uzbekistani [sic] interpreter.

5. A judge‑alone trial will provide efficiency to criminal justice and procedure.

6. This trial will consist of complex legal arguments, issues and understandings that will ultimately prejudice the defendant should the matter proceed by jury trial.

7. The complainant has completed her evidence by way of pre‑recording hearing.”

17. The complainant was, during the periods referred to in the indictment, either eight or nine years old. She is currently 13 years old. The accused is her cousin. He is currently 29 years old. There is an age difference of 16 and a half years between the complainant and the accused. It is wholly consistent with the normal practice of the Court that the complainant’s evidence was pre-recorded.

18. The affidavit in paragraph 3 refers to the test which must be satisfied, but the solicitor’s opinion about that test is irrelevant.

19. That the accused may need an interpreter is not unusual. Uzbeki is his native language. He is from Uzbekistan. The accused came to Australia in 2014 and lived with the family of the complainant between 2014 and 2019.

20. The offences are alleged to have occurred when the family were living together in a home unit in French Avenue, Bankstown. The master bedroom was occupied by the complainant’s parents and by the complainant and her siblings. The second bedroom in the unit was occupied by the accused.

21. It is true that a judge‑alone trial is generally perceived as being quicker and time is not wasted, for example, in sending a jury out and bringing a jury back in if there is to be any legal argument. Time length of a non‑jury trial is shorter than the length of a jury trial. The procedure can be less complex in a trial by judge‑alone than it is by trial with a jury, however, those benefits are largely irrelevant.

22. What has been put forward on behalf of the accused is that there will need to be complex directions and there is a hint of prejudice, although learned counsel for the accused puts it at a much higher level than a mere “hint”.

Tendency Evidence

23. The Crown has served a tendency notice but that tendency notice bears date 1 July 2022, it is at least 11 months old. The accused has had 11 months in which to consider the application for tendency evidence and indeed that tendency evidence would have been called in the trial that was to be conducted by Harris DCJ commencing on or about 3 August 2022.

24. The only evidence to be relied upon as tendency evidence is evidence given by the complainant herself, that is fairly straightforward. The evidence adduced in respect of each count in the indictment will no doubt be relied upon by the Crown to support evidence on other counts in the indictment. Paragraph 4 of the tendency notice is this:

“The Crown seeks to prove the following tendencies on the part of the accused:

A. The tendency to have a particular state of mind, namely, to have a sexual interest or attraction towards [the complainant] during the period specified above in [2]; and

B. The tendency to act upon the sexual interest or attraction by engaging her in sexual activity, the subject of the various counts on the indictment.”

25. Paragraph 5 of the tendency notice also needs to be borne in mind, it is this:

“The following common features attached to the evidence sought to be adduced in support hereof;

(i) All the acts (both charged and uncharged) were committed upon the same complainant;

(ii) They all occurred in roughly the same period between March 2018 - December 2019.

(iii) They all occurred at the same flat at ... French Avenue, Bankstown, Sydney.

(iv) They all occurred during brief periods when the accused was minding the complainant (then aged between eight - ten years) for her parents.

(v) They all involved the showing of internet pornography to the complainant, mutual sexual activity, or both.”

26. The substance of the tendency evidence is disclosed in the three JIRT interviews given by the complainant on 9 December 2020, 14 December 2020 and 19 January 2021, that is, within the same month or the following month after she made her initial disclosures to those in authority. No person other than the complainant will give the tendency evidence and it will all be about the charged offences and some uncharged offences that are referred to in the third JIRT interview. This is a relatively straightforward, indeed simple case of tendency evidence, the type of evidence which is commonly given in cases of sexual assault, and will not be difficult for an experienced judge to give appropriate directions nor be relatively difficult for a jury to understand.

27. The Crown points out that as far as the third JIRT interview is concerned, no application has been made by the accused to exclude the evidence as unfairly prejudicial, that is, in particular that there has been no application under s 137 of the Evidence Act 1995.

Alleged Prejudicial Evidence

28. The accused refers to some of the evidence being unfairly prejudicial to him. In the interview that the accused gave to the police he admitted that he himself watched pornography on his mobile telephone. At the time he was interviewed by the police he was 27 years old. He also admitted to masturbating and he also admitted that he had not had sexual intercourse with a woman because that was contrary to his strict Muslim beliefs.

29. In many ways a jury may be in a better position to consider that form of evidence than a judge. Judges tend to be more mature members of our society. Whether there will be 20 years olds and 30 year olds and 40 year olds on the jury panel, I do not know, but invariably the range of jurors’ ages is between their 20s and 60s. Jurors may have a very different view of the prevalence of young men viewing pornography and of single males masturbating than more mature members of our society do who were raised in very different times, much longer ago than a person in their 20s or 30s, or even 40s.

30. However, the accused’s concern that this will be prejudicial to him is not supported by any evidence and is in fact the sort of matter that was dealt with in R v Belghar where the accused believed that his being a strict Muslim would be held adversely against him but there was not a scintilla of evidence to support.

31. Clearly, that is a matter that the Court could give directions to the jury about, and such directions would probably concur with the personal views of a number of members of the jury in any event. However, there was no evidence to support the suggestion that the disclosure by the accused of watching pornography or masturbating and not having had sexual intercourse with a lady would cause any unnecessary prejudice against him.

Need for Interpreter

32. The other factor raised by the accused was of his need to have an Uzbeki or Russian interpreter, preferably a Uzbeki one because that is his native language. It is clear from a part of the electronically recorded interview that the accused gave to police, that the Russian interpreter then being used pointed out to the police that Russian was not the accused’s native language. One can understand that a person who had come from Uzbekistan may have known Russian because at one stage Uzbekistan was part of the USSR where the lingua franca was Russian.

33. However, it is very common for accused persons to need the assistance of interpreters, as I pointed out to learned counsel for the accused and to counsel for the Crown, this happens in almost every second case to come before the Court, sometimes it is not limited to an accused person but also to relevant witnesses some of whom may come from the same ethnic background and some of whom, for example, may speak only, say, Mandarin, or whose English is inadequate.

Decision

34. As has been submitted by Mr Crown, there is here an evidentiary lack of support for the application and no adequate explanation for why the application is made so late.

35. I accept that the accused perceives that he would be better served by trial by judge alone but that in itself is only really of paramount importance if the reasons that the accused relies upon for that belief are adequately explained and adequately proven. Such is not the case in the current application.

36. For those reasons, the application is dismissed.

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Decision last updated: 25 August 2025