Suppressed - [2020] WASC 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   YARRAN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 279
CORAM:   MCGRATH J
HEARD:   27 JULY 2020
DELIVERED          :   29 JULY 2020
FILE NO/S:   INS 47 of 2017
BETWEEN:   LUCAS JAMES YARRAN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Charge of manslaughter - Turns on own facts

Legislation:

Criminal Code (WA), s 272, s 280, s 333, s 392
Criminal Procedure Act 2004 (WA), s 118

Result:

Application for trial by judge alone granted

Category: B

Representation:

Counsel:

Applicant	:	Mr S D Freitag SC
Respondent	:	Ms L E Christian SC

Solicitors:

Applicant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Arthurs v The State of Western Australia [2007] WASC 182
Bell v The State of Western Australia [No 2] [2014] WASC 260
Chiha v The State of Western Australia [No 2] [2015] WASC 147
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Wark [2017] WASC 154
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
Yarran v The State of Western Australia [2019] WASCA 159

MCGRATH J:

The applicant, Mr Yarran, has been jointly charged with two other accused, namely Mr Boag and Mr Smith, that on 3 August 2016 he unlawfully killed another contrary to s 280 of the Criminal Code (WA).
Mr Yarran and his co-accused have pleaded not guilty to the count and will appear for trial commencing in August 2020. The trial in August 2020 is a retrial. At the first trial Mr Yarran and his co-accused were convicted of seven counts including the manslaughter count.[1] The Court of Appeal set aside the conviction for manslaughter and ordered a retrial on that count.
[1] Indictment dated 6 April 2017.
Mr Yarran applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), for his trial to be heard by a judge alone without a jury.[2] Both Mr Boag and Mr Smith support that application. The application is supported by an affidavit of Mr Yarran's counsel, Mr Freitag SC, affirmed 16 July 2020.
[2] Application by Mr Yarran dated 16 July 2020.
Mr Yarran contends that it is in the interests of justice to make the order for the reason that the jury will be significantly prejudiced by material that will be before them, and that consequently Mr Yarran will not be given a fair trial according to law. The prejudicial material comprises, in part, the fact that Mr Yarran was convicted of six counts at his first trial. It is contended that the jury in the retrial will necessarily become aware of the convictions in respect of the six counts and that this will result in significant prejudice that cannot be ameliorated by judicial direction. Therefore, it will be in the interests of justice to order a trial before a judge alone without a jury to ensure that the accused persons receive a fair trial according to law.
Mr Yarran also relies upon the contention that the jury will receive material concerning Mr Yarran's own admissions made during his testimony at the first trial concerning disreputable and illegal conduct that he has undertaken. He contends that this will cause significant prejudice that cannot be ameliorated by judicial direction.
Mr Boag supports the application relying upon the contention that the jury will be prejudiced upon becoming aware that he was convicted of the six counts at his first trial. Mr Boag further contends that the fact that the jury will necessarily hear evidence concerning drugs such as methylamphetamine and the violent nature of the actions underlying the manslaughter counts will cause prejudice to him. Further, Mr Boag contends that the jury will be distracted by the COVID-19 pandemic and that the only remedy is if he is tried before a judge alone without a jury.
The State does not oppose the application. The State accepts that there is a real risk that the jury will become aware that the accused persons were convicted of the six offences at the first trial and that this will cause significant prejudice that cannot be sufficiently removed by judicial direction. Therefore, the State accepts that it would be in the interests of justice to order a trial before a judge alone without a jury to ensure that the accused persons receive a fair trial according to law.
For the following reasons, I have determined that it is in the interests of justice that the accused persons be tried by judge alone and therefore, I exercise my discretion to make that order. I do so for the reason that there is a real possibility that a jury would become aware that the accused persons were convicted of six counts in the first trial and that the risk of prejudice to the accused persons would not be sufficiently ameliorated by judicial direction.
However, I do not accept the contentions of Mr Yarran that his admissions during his testimony at the first trial, concerning disreputable and illegal conduct, is a sufficient basis to grant the order sought in the application. Further, I do not accept the contentions of Mr Boag that the violent nature of the offending in the six counts is a sufficient basis to support the making of the application. Nor do I accept that the jury will be distracted by the COVID-19 pandemic.
In my reasons, I will consider the following:
1.The procedural background and the nature of the State's case.
2.Legal principles relevant to an application under s 118 of the CPA.
3.Determination of the application.

The procedural background and the State's case

By indictment dated 6 April 2017, the accused persons were jointly charged with seven counts.
Count 1 alleged that on 3 August 2016, the accused persons stole from Mr Watson, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a silver neck chain the property of Mr Watson, contrary to s 392 of the Criminal Code.
Count 2 alleged that on the same date and at the same place as in count 1 the accused persons stole from Mr Wilton, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a bracelet the property of Mr Wilton, contrary to s 392 of the Criminal Code.
Count 3 alleged that on the same date and at the same place as in count 1 the accused persons stole from Ms Fairhead, with threats of violence and in circumstances of aggravation, a mobile telephone, a handbag and a motor vehicle key the property of Ms Fairhead, contrary to s 392 of the Criminal Code.
Count 4 alleged that on the same date as in count 1 the accused persons unlawfully detained Mr Watson contrary to s 333 of the Criminal Code.
Count 5 alleged that on the same date and at the same place as in count 4, the accused persons unlawfully detained Mr Wilton contrary to s 333 of the Criminal Code.
Count 6 alleged that on the same date and at the same place as in count 4, the accused persons unlawfully detained Ms Fairhead contrary to s 333 of the Criminal Code.
Count 7 alleged that on the same date as in count 1, the accused persons unlawfully killed Ms Fairhead, contrary to s 280 of the Criminal Code.
Between 1 and 21 March 2018 the accused persons appeared before a judge and jury for trial. The State case at trial in respect of the count of manslaughter comprised the contention that the accused persons, by threats or intimidation, caused the deceased, Ms Fairhead, to do an act being opening the door of a moving car while she was not wearing a seatbelt which resulted in her death. The State case relied upon s 272 of the Criminal Code which deemed the accused persons to have killed Ms Fairhead. The State case was put on the basis that the accused persons were joint principals because they all did an act or acts in a series of acts that resulted in Ms Fairhead being threatened or intimidated.
The State's case is outlined in the judgment of Buss JA. It is necessary that I outline the relevant passages from the judgment of Buss JA:[3]
[3] Yarran v The State of Western Australia [2019] WASCA 159 [24] ‑ [33].
On the evening of 2 August 2016, Mr Yarran, Mr Boag and Mr Smith were at a house in Ridgewood. They were living or staying at the house. SH, a female friend of hers and Georgia McEwan were visiting the house.
During the evening Mr Yarran asked SH, the female friend of hers and Ms McEwan whether they knew of anyone they 'could roll for gear', meaning rob for methylamphetamine. SH said she knew someone who she could bring to the house. Mr Boag and Mr Smith were present when the plan to rob someone for methylamphetamine was formulated and put into effect.
SH contacted Mr Watson by text message and by telephone. She asked him to come to the Ridgewood house. She also asked him whether he had any methylamphetamine. SH gave Mr Watson the impression that she had a sexual interest in him. She told Mr Watson that she and one other friend were the only people at the house.
When Mr Watson received the communications from SH he was with Mr Wilton and Ms Fairhead. They were in Ms Fairhead's motor vehicle, a Toyota Prado 4‑wheel drive. Ms Fairhead agreed to drive Mr Watson to the Ridgewood house.
At about 1.50 am on 3 August 2016, Mr Watson, Mr Wilton and Ms Fairhead arrived at the Ridgewood house in Ms Fairhead's motor vehicle. SH and her female friend were waiting outside the house to meet them. SH invited Mr Watson, Mr Wilton and Ms Fairhead to enter the house. Before and after they entered the house, Mr Watson, Mr Wilton and Ms Fairhead were threatened or intimidated by Mr Yarran, Mr Boag and Mr Smith.
The alleged threats or intimidation included verbal threats, physical intimidation, depriving Mr Watson, Mr Wilton and Ms Fairhead of their liberty, and physical violence against Mr Watson and Mr Wilton in Ms Fairhead's presence during a protracted incident.
In particular, the threats and intimidation included:
(a)Mr Yarran, Mr Boag and Mr Smith confronting Ms Fairhead and the others, while armed, outside the house;
(b)Mr Yarran, Mr Boag and Mr Smith confining Ms Fairhead and the others in the house and then separating them;
(c)Mr Yarran, in Ms Fairhead's presence, becoming angry and slamming a machete into a coffee table in the lounge room;
(d)Mr Yarran, in Ms Fairhead's presence, hitting Mr Watson on the forehead with the machete, drawing blood;
(e)Mr Yarran, Mr Boag and Mr Smith stealing from Mr Watson, Mr Wilton and Ms Fairhead;
(f)Mr Yarran ordering Ms McEwan, in a threatening way while holding the machete, to strip‑search Ms Fairhead;
(g)Mr Yarran, Mr Boag and Mr Smith forcing Ms Fairhead and the others into Ms Fairhead's motor vehicle while armed;
(h)Mr Yarran threatening to kill Ms Fairhead and the others by burning the vehicle with them in it;
(i)Mr Yarran, Mr Boag and Mr Smith being armed with the machete, baseball bats and Mr Watson's knife over the course of the incident;
(j)Mr Yarran, in Ms Fairhead's presence, demanding drugs; and
(k)the tone of voice used during the incident.
Mr Yarran, Mr Boag and Mr Smith threatened to strike Mr Watson, Mr Wilton and Ms Fairhead with the machete and the baseball bats if they did not get into Ms Fairhead's motor vehicle. Mr Wilton was jabbed with the end of a baseball bat. Mr Watson, Mr Wilton and Ms Fairhead were being held against their will. Mr Yarran got into the driver's seat of the vehicle. Ms Fairhead was in the front passenger seat. Mr Watson was in the rear compartment, Mr Wilton was in the middle of the back passenger seat with Mr Boag and Mr Smith on either side of him. Mr Yarran, Mr Boag and Mr Smith took the machete and the baseball bats with them when they got into the vehicle.
Mr Yarran drove Ms Fairhead's motor vehicle erratically. He threatened to drive the vehicle into the bush and to burn it with Mr Watson, Mr Wilton and Ms Fairhead inside. Ms Fairhead then said words to the effect of 'sorry, I can't do this' or 'I can't handle this'. She reached for the machete, which was between the driver's seat and the centre console. Mr Yarran attempted either to grab Ms Fairhead or the machete. The vehicle swerved. Ms Fairhead opened the door adjacent to her and fell from the vehicle.
When Ms Fairhead fell from the vehicle she struck the road and suffered traumatic head injuries. She appears to have lost consciousness immediately and to have been bleeding significantly. Although she did not die immediately, Ms Fairhead did not survive. The cause of her death was the traumatic head injuries which she suffered upon striking the road after falling from the vehicle.
On 21 March 2018, the accused persons were convicted of all of the seven counts on the indictment. On 8 June 2018, the learned trial judge imposed sentence on the accused persons.
On 20 May 2019, the accused persons appeared before the Court of Appeal for an appeal against both conviction and sentence. On 17 October 2019, the Court of Appeal allowed the appeal against the conviction for count 7 namely the offence of manslaughter.[4] The Court of Appeal suppressed the judgment.
[4] Yarran v The State of Western Australia.

Legal principles

Section 118 of the CPA relevantly provides:
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers -
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order 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.
The proper construction and interpretation of s 118 of the CPA has been considered in a number of decisions of the court, from which principles may be distilled.
Section 118(4) of the CPA provides that the discretion of the court to make an order for a trial by judge alone will not be enlivened unless the court is affirmatively satisfied that it is 'in the interests of justice' to do so.[5] If the court is satisfied that it is in the interests of justice to do so, the court then exercises the discretion whether to make the order for trial by judge alone.[6]
[5] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [318].
[6] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21].
The phrase 'in the interests of justice' has a broad connotation and includes both the interests of the accused and the public interest.[7] The public interest in this context includes the proper functioning and the protection of the integrity of the criminal justice system as administered by the courts.[8] The fundamental issue with which s 118 of the CPA is concerned is that the accused receives a fair trial according to law. Therefore it is in the interests of justice to order a trial by judge alone if that is necessary to ensure that the accused receives a fair trial.[9] There must be a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law before a jury.[10]
[7] LFG v The State of Western Australia [319] ‑ [320].
[8] LFG v The State of Western Australia [320].
[9] LFG v The State of Western Australia [321].
[10] LFG v The State of Western Australia [321].
The concept of the interests of justice, therefore, is one that should not be narrowly defined. What is in the interests of justice will vary from case to case.[11] Some guidance as to the factors that may be relevant in assessing the interests of justice is provided by s 118(5) and s 118(6) of the CPA. However both subsections state that the factors listed do not limit the general concept of what might be in the interests of justice.
[11] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [17].
A number of factors have been identified and considered in other cases determining an application pursuant to s 118 of the CPA. The subjective views of the accused as to whether a judge alone trial is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[12] However, as McKechnie J observed in TVM v The State of Western Australia, to pay undue account to the subjective views of an accused person may have the result that the decision is made in the interests of the accused and not the interests of justice.[13] That is because the interests of justice are not coterminous with the interests of an accused.
[12] Arthurs v The State of Western Australia [2007] WASC 182 [79], [80]; The State of Western Australia v Rayney [26].
[13] TVM v The State of Western Australia [30] - [32].
It has been suggested that the obligation of a judge to provide reasons for decision is a relevant factor that may weigh in support of a trial by judge alone,[14] but there are differing views as to whether this is a relevant factor.[15]
[14] Arthurs v The State of Western Australia [73] - [76].
[15] TVM v The State of Western Australia [32]; The State of Western Australia v Wark [2017] WASC 154 [108].
Another factor that may be relevant to the consideration of what is in the interests of justice is the length of the trial.[16] There is not necessarily any time saved if an accused has a judge alone trial.[17] However, a trial of extreme length may create problems for jurors who are required to forgo normal life commitments or upon whom such trials may place a physical, mental or emotional burden which is too great.[18] In addition, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that the jury may be discharged for some reason without reaching a verdict.[19]
[16] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[17] The State of Western Australia v Rayney [37]; The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[18] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[19] The State of Western Australia v Rayney [37].
The fact that the State's case is based upon circumstantial evidence has been considered to be a factor supporting a trial before a jury.[20] I agree with the alternative view that there is no reason why either mode of trial is preferable if the State's case is based upon circumstantial evidence.[21]
[20] The State of Western Australia v Martinez [36].
[21] Arthurs v The State of Western Australia [61] - [67]; TVM v The State of Western Australia [15].
The nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that the jury may be unable to properly consider its relevance and significance.[22] Further, the evidence may involve intricate and disputed expert evidence or the jury may have difficulty in applying different legal principles in the context of complicated questions of fact.[23]
[22] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[23] LFG v The State of Western Australia [337]; The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147.

An overarching consideration in deciding whether it is in the interests of justice that an accused be tried by judge alone is whether the accused can receive a fair trial by jury.[24] Therefore, pre‑trial publicity is a significant factor. In TVM v The State of Western Australia, McKechnie J outlined the extent and nature of pre‑trial publicity that may create an environment in which the accused is unable to receive a fair trial. McKechnie J stated the following:[25]
[I]t can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear.
[24] The State of Western Australia v Rayney [30].
[25] TVM v The State of Western Australia [29].
In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre‑trial publicity.[26]
[26] The State of Western Australia v Rayney [34].
Accordingly, the nature and extent of the pre‑trial publicity must necessarily be of such a nature that, despite a detailed warning to the empanelled jury both at the commencement and the judge's summation of the trial, the risk of prejudice or pre-judgment could not be ameliorated.[27]
[27] LFG v The State of Western Australia; The State of Western Australia v Martinez [31] ‑ [34]; The State of Western Australia v Rayney [92].

Determination of application

I have outlined the basis for the application. The State consents to the application. The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[28]
[28] The State of Western Australia v Mack [2012] WASC 127 [43].
I find that there is a real risk that the jury will become aware that each of the accused persons were convicted of the six other counts on the indictment. The State case in respect of the manslaughter count will rely upon the offending that grounds counts 1 ‑ 6 on the first trial indictment. That is, the conduct the subject of counts 1 ‑ 6 form part of the State case that there were threats or intimidation which led to the death of the deceased. The State submitted that given that the accused were convicted of the six counts, the accused persons are not entitled to conduct their defences in such a way so as to controvert the material facts that underpin the elements of those offences.[29] The circumstance in which the jury may become aware of the convictions is indeterminate at this stage.
[29] Bennett v The State of Western Australia [2010] WASCA 70 [66] ‑ [68].
The consequence of the jury becoming aware of the convictions will be significant prejudice to the accused persons, which cannot be ameliorated by judicial direction. Therefore, it is in the interests of justice to order a trial before a judge alone without a jury to ensure that the accused persons will receive a fair trial according to law.
I reiterate that I do not grant this application on the basis that the jury may hear that Mr Yarran has engaged in previous illegal or discreditable behaviour. Mr Yarran gave that evidence at his first trial. Nor do I grant this application on the basis that the jury may hear evidence concerning methylamphetamine. Any prejudice that may arise in relation to those contentions could be sufficiently ameliorated by judicial direction. Further, I do not accept the contention of Mr Boag that the jury may be distracted concerning the COVID-19 pandemic. Such a contention is speculative and without foundation.
Accordingly, it is in the interests of justice to make an order that there be a trial before a judge alone without a jury to ensure that the accused persons receive a fair trial according to law. I exercise my discretion by so ordering.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
29 JULY 2020