Redman v R

Case [2015] NSWCCA 110


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Bruce Donald Redman v R

Medium Neutral Citation: 

[2015] NSWCCA 110

Hearing Date(s): 

31 March 2015

Date of Orders:

27 May 2015

Decision Date: 

27 May 2015

Before: 

Hoeben CJ at CL at [1]
Adams J at [2]
R A Hulme J at [20]

Decision: 

(i)leave to appeal be granted;
(ii)the decision below be quashed; and
(iii)the trial proceed by judge alone.

Catchwords: 

CRIMINAL LAW – application for trial by judge alone appeal – no presumption in favour of trial by jury - right to a fair trial - sexual intercourse with person under 10 years without consent

Legislation Cited: 

Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995 (NSW)

Cases Cited: 

Gilbert v The Queen [2000] HCA 15; 201 CLR 414
R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
R v Simmons; R v Moore (No. 4) [2015] NSWSC 259

Category: 

Principal judgment

Parties: 

Bruce Donald Redman (Applicant)
The Queen (Respondent)

Representation: 

Counsel:
Mr D O’Neil with Mr J Kellaway (Applicant)
Mr K McKay (Respondent)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 

2014/00007634

Publication Restriction: 

None

Decision under appeal: 

 Court or Tribunal: 

District Court of New South Wales

  Jurisdiction: 

Criminal

  Date of Decision: 

13 October 2014

  Before: 

Lerve DCJ

  File Number(s): 

2014/00007634

JUDGMENT

  1. HOEBEN CJ at CL: I agree with the orders proposed by Adams J for the reasons which his Honour has set out in par [15] thereof. As indicated by R A Hulme J, the resolution of this matter depended very much upon its unusual facts.

  2. ADAMS J:

Introduction

  1. The applicant, a 47 year old aboriginal man, was arrested and charged in January 2014 with two counts alleging that, between 31 December 2003 and 25 December 2004 at Tilpa in the State of New South Wales, he had sexual intercourse with a young girl who was six or seven years of age at the time, contrary to s 66A of the Crimes Act 1900. When the matter came on for trial on 13 October 2014 the applicant applied for the trial to proceed by judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Crown opposed the application, which was refused. The applicant appeals from this decision under s 5F(3) of the Criminal Appeal Act 1912.

    The Criminal Procedure Act 1986

  2. So far as is relevant this provides –

    132 Orders for trial by Judge alone

    (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

    (2) …

    (3) …

    (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…

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Redman v R [2015] NSWCCA 110
Case
[2015] NSWCCA 110
Decision Date

CaseChat Overview and Summary

The case of Redman v R involved an appeal against the decision of a trial judge to deny a request for a trial by judge alone. The applicant was charged with sexual intercourse with a person under 10 years without consent. The legal issues before the court were whether the trial judge had erred in concluding that a jury was better suited to assess the credibility of the parties involved and whether there were means available to avoid the prejudice to which the applicant pointed. The court was required to determine whether the trial judge had correctly applied the principles set out in relevant case law and whether the decision was in the interests of justice.

The court found that the trial judge had erred in assuming that a jury was a superior tribunal of fact for assessing credibility. The court held that there was no presumption in favour of a jury trial and that the decision should be based on what is in the interests of justice. The court also noted that there is an important distinction between prejudicial material proposed to be relied on by the Crown and prejudicial material proposed to be introduced by an accused. The court held that an accused person should be able to defend themselves by all forensically available means and should not be forced to choose between the risk of unfair prejudice and censoring their defence.

In conclusion, the court found that the trial judge had erred in his assessment of the relative abilities of judge or jury to determine facts. The court held that the decision to deny the application for a trial by judge alone was not in the interests of justice. The court ordered that the matter be remitted to the trial judge for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ
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]).Conclusion On a fair reading of the trial judge’s reasons, it seems to me (with respect) that, as distinct from merely emphasising the jury’s suitability for judging credibility in a word against word case, his Honour acted on the basis that a jury is a superior tribunal of fact for this purpose. This was a significant error: the interests of justice are not determined by suppositions about the relative abilities of judge or jury to determine facts, though in some cases – such as those enumerated in s132(5) – a jury may be the more appropriate tribunal, other things being equal. Evidence that the applicant could not have been at a birthday party on or, for that matter, after 27 November is obviously relevant and could not be excluded. Nor can the applicant be prevented from being entirely candid about the matter, not because the fact might be disputed, but because his credibility will be judged against that of the complainant and a suspicion in the jury’s mind about a lack of candour could be unjustly engendered were he to appear to be concealing matters from them; the jury will assess his truthfulness on their overall view about him as a witness. For obvious reasons, the proposal of the Crown did not ameliorate this problem. A direction that the jury must not speculate about the circumstances does not answer this problem, even supposing it were effective to prevent the implication that something adverse to the applicant was being kept from them. The question then arises whether directions by the trial judge not to use the evidence of wrongdoing adversely to the applicant would suffice. Likely it would, but a real risk would remain that it would not. These cases are emotionally fraught and the offences naturally instigate powerful feelings of disgust. The applicant cannot rely on evidence of good character. In short, the applicant must make a choice between full disclosure on the one hand and the real risk of adverse prejudice on the other.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The Crown submitted that it was open to the trial judge to conclude that a jury was better able than a single judge to assess the relative credibility of the complainant and the applicant. At all events, since the application depended upon establishing that the applicant would be prejudiced by disclosure of the truth, it was open to his Honour to find that means were available to avoid the prejudice to which the applicant pointed.Consideration 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]. 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. (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.) 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]).Conclusion