The State of Western Australia v Anthonisz - [2023] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ANTHONISZ [2023] WASC 67
CORAM:   MCGRATH J
HEARD:   7 MARCH 2023
DELIVERED          :   10 MARCH 2023
FILE NO/S:   INS 6 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JACOB DANIEL ANTHONISZ
Accused

Catchwords:

Criminal law and procedure - Accused's application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Pre-trial publicity - Complexity of issues at trial

Legislation:

Criminal Code (WA), s 83
Criminal Procedure Act 2004 (WA), s 118

Result:

Trial by judge alone ordered

Category: B

Representation:

Counsel:

Prosecution	:	Mr M Cvetkoski
Accused	:	Mr S D Freitag SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Hammond Legal

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
Steele v The State of Western Australia [2018] WASCA 133
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 & Ors [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

MCGRATH J:

The accused, Mr Anthonisz, is charged with 542 counts of being a public officer, who without lawful authority or reasonable excuse acted corruptly in the performance or discharge of the functions of his office, so as to gain a benefit for Paul Ronald Whyte and himself contrary to s 83(c) of the Criminal Code.
Mr Anthonisz has pleaded not guilty to the 542 counts and will appear for his trial in August 2023.
Mr Anthonisz applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), that his trial be by a judge alone without a jury.[1]
[1] Application for trial by judge alone filed 5 January 2023.
The basis of the application is that it is in the interests of justice to grant the order for a trial by judge alone given the extent and nature of the pre-trial publicity (which has raised the danger of prejudice or prejudgment of the accused), and that the trier of fact will be required to consider voluminous complex evidence.
The State does not oppose the application. However, the fact that the State does not oppose the application is not determinative of the matter. I must be satisfied that it is in the interests of justice to order a trial by judge alone. Having considered all relevant factors bearing on my discretion, I have determined that it is in the interests of justice to make the order. Accordingly, the application is granted.
In these reasons for decision, I will consider the following matters:
1.The nature of the State case;
2.The legal principles relevant to an application under s 118 of the CPA; and
3.The basis for, and assessment of, the application.

The State's case

The State contends that the accused aided the principal offender, Mr Whyte, a senior public officer commit corruption offences contrary to s 83(c) of the Criminal Code. The State's case is outlined in an amended statement of material facts, which in part, provides as follows.
1.The Offender Jacob Daniel ANTHONISZ (ANTHONISZ) held office bearer roles across multiple companies including, iValuate, Boldline and Quadrant Analytics, and as a physiotherapist at his business, Lifestyle Physiotherapy.
2.ANTHONISZ is the account holder and authorised signatory for the bank accounts and director for the companies of iValuate, Boldline and Quadrant Analytics.
3.ANTHONISZ has a long-standing relationship/friendship with Paul Ronald WHYTE (WHYTE), including an interest in the ownership of racehorses.
4.WHYTE was employed in the WA Public Service for more than 25 years, predominately with Landgate, the Department of Housing and later, with the Department of Communities.
5.Throughout his tenure with the WA Public Service WHYTE held a range of senior officer or senior executive roles, including acting roles of director general or chief executive officer.
6.From 2009 through to 2016, WHYTE was the General Manager for Commercial and Business Operations at the Housing Authority. Prior to 2009, he held senior positions with Landgate.
7.From November 2016 until his arrest in 2019 WHYTE held the position of Assistant Director General Corporate Operations at the Department of Communities.
8.Between March 2015 and 2017 WHYTE was acting concurrently in the roles of Director General of the Department of Housing and Chief Executive Officer of the Housing Authority.
9.On 1 July 2017 the Department of Housing and the Housing Authority, along with numerous other departments, amalgamated with the Department of Communities.
10.From 3 July 2017 to January 2018 WHYTE was acting concurrently in the role of Director General of the Department of Communities and Chief Executive Officer of the Housing Authority and Department of Housing.
11.As Director General, WHYTE was responsible for ensuring the efficient and optimal planning, use and development of corporate resources (human; physical; financial; information systems; and capital assets and accommodation) necessary to deliver departmental and government outcomes and reforms.
12.This role provides stewardship of internal governance, resources, assurance, standards, and integrity; and is accountable for corporate assurance, performance, and conformance. This area oversees all the internal governance, standards and integrity, and corporate assurance.
13.WHYTE was the default cost centre owner for Corporate Operations with sole oversight and responsibility for the cost centre. All purchase orders/invoices submitted were sent to WHYTE for approval.
14.WHYTE received invoices through his work email from three (3) companies, iValuate, Boldline and Quadrant Analytics, for project work purporting to have been completed.
15.WHYTE approved the invoices and payment was made to ANZ bank accounts for iValuate, Boldline and Quadrant Analytics.
16.Since 2008, businesses linked to ANTHONISZ received payments to the business bank accounts from the Department of Communities, Housing and Landgate.
17.Payments were made by corporate credit cards or through the payment of invoices.
18.Invoices for a project known as the Keralup project are paid from an allocated cost centre, but payments to iValuate, Boldline and Quadrant Analytics were made from the ADG Corporate Operations cost centre. This cost centre is not involved in the Keralup project.
19.WHYTE is the business area owner/authoriser, with delegated authority to approve payments.
20.iValuate, Boldline and Quadrant Analytics are not approved contractors for the project.
21.All payments for the project are recorded against the allocated cost centre to ensure budgetary compliance.
22.No payments to iValuate, Boldline and Quadrant Analytics appear in this cost centre, in payments to contractors or budget reports.
23.Once the payments were received in the account, ANTHONISZ used some of the funds for several purposes, including for general living expenses, to purchase wine, purchase vehicles or pay credit card debts.
The offending allegedly commenced on or about 21 April 2008 and ceased on 4 November 2019. During the period of the offending, 542 payments, totalling $22,123,171.04, were made from the State Government to the bank accounts held in the name of iValuate, Boldline, and Quadrant Analytics. The State did not receive any services or goods from the respective companies in respect of the 542 payments.

Relevant 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 appsly 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. The Court of Appeal outlined the relevant legal principles in Steele v The State of Western Australia.[2]
[2] Steele v The State of Western Australia [2018] WASCA 133.
Neither the accused nor the State has the right to elect a trial by judge alone.[3] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[4]
[3] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [317].
[4] The State of Western Australia v Mack [2012] WASC 127, [43].
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 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 of whether to make the order for trial by judge alone.[6]
[5] LFG v The State of Western Australia, [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 not only the interests of the accused but also 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]
[7] LFG v The State of Western Australia, [319] - [320].
[8] LFG v The State of Western Australia, [320].
The fundamental issue with which s 118 of the CPA is concerned is that the accused receive a fair trial according to law and therefore, it will be 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]
[9] LFG v The State of Western Australia, [321].
[10] LFG v The State of Western Australia, [319] - [321].
The concept of being in the interests of justice, therefore, is one that should not be narrowly defined and necessarily contemplates the analysis and weighing of relevant factors. 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 but both subsections state that the factors listed therein do not limit the general operation of the concept of what might be in the interests of justice. Where the issues at trial are likely to involve consideration of community standards of the type referred to in s 118(6) then that may favour a trial by jury.
[11] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383, [11].
A number of factors have been identified and considered in other cases that are relevant in determining what is in the interests of justice pursuant to s 118 of the CPA. No one factor will necessarily be paramount, with each factor given its appropriate weight in light of the particular facts and circumstances.[12]
[12] LFG v The State of Western Australia, [324].
The subjective views of the accused as to whether a trial by judge alone is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[13] However, as McKechnie J observed in TVM v The State of Western Australia,[14] 'to pay undue account to the subjective views of an accused person … may have the result that a decision is really being made for the interests of an accused, not the interests of justice'.[15] That is because the interests of justice are not coterminous with the interests of an accused.
[13] Arthurs v The State of Western Australia [2007] WASC 182, [79] - [80]; The State of Western AustraliavRayney, [26].
[14] TVM v The State of Western Australia, [2007] WASC 299.
[15] 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,[16] but there are differing views as to whether this is a relevant factor.[17] I do not accept that the obligation to provide written reasons is a relevant factor.
[16] Arthurs v The State of Western Australia, [73] - [76].
[17] 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 interests of justice is the length of the trial.[18]
[18] Criminal Procedure Act 2004 (WA), s 118(5)(a).
A trial of extreme length may create problems for jurors who are required to forgo normal life commitments, or on whom such trials may place too great of a physical, mental or emotional burden.[19]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.[20]
[19] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[20] The State of Western Australia v Rayney, [37].
There is not necessarily any time saved if an accused has a judge alone trial.[21]Certainly not for the trial judge, who will undoubtedly take a period of time at the conclusion of the trial to complete and deliver written reasons to be published at the delivering of the verdict.
[21] The State of Western AustraliavRayney, [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380, [29].
The trial may be of complexity, raising difficult questions of fact, which will likely be unreasonably burdensome to a jury.[22]
[22] Criminal Procedure Act, s 118(5)(a).
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.[23] I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case is based upon circumstantial evidence.[24]
[23] The State of Western Australia v Martinez& Ors, [36].
[24] 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 in a particular case may be considered to be so graphic or disturbing that a jury may be unable to properly consider its relevance and significance.[25] 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.[26]
[25] LFG v The State of Western Australia, [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[26] 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.
In Steele v The State of Western Australia,[27] the Court of Appeal observed:
(7)In enacting s 118, Parliament must be taken to have known of the following well-established and long-standing principles in relation to criminal trials by or before juries:
(a)The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.
(b)The criminal justice system, as administered by the appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision-making or juries is unaffected by matters of possible prejudice.
(c)The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. However, what is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations.
[27] Steele v The State of Western Australia, [11].
The overarching consideration in determining 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.[28]
[28] The State of Western Australia v Rayney, [30].
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:[29]
…It 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.
[29] 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:[30]
The issue of pre-trial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pre-trial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527 at 532-533 per Street CJ, Yeldham and Finlay JJ agreeing; Western Australia v BLM (2009) 40 WAR 414 per Buss JA, with whom Owen, Wheeler and Pullin JJA agreed. It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM (at [70] - [73]); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J. In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (at 614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs (at [87]). Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' (at [33]).
[30] 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 of a trial and during the judge's summation, the risk of prejudice or pre-judgment could not be ameliorated.[31]
[31] LFG v The State of Western Australia; The State of Western Australia v Martinez & Ors, [31] - [34]; The State of Western Australia v Rayney.

Assessment of the application

The accused relies upon two bases in support of the application, being the pre-trial publicity and the complexity of the matter. Counsel for the accused submitted that the combined effect of the pre-trial publicity and the complexity of the matter, taken as a whole, supports the finding that an order under s 118(1) of the CPA should be made.

Pre-trial publicity

The accused contends that the matter has been the subject of extensive pre-trial publicity and consequently, there is an unacceptable risk that the accused will not receive a fair trial. Counsel submitted that there has been a very significant amount of negative and inflammatory publicity concerning the matter and that the publicity has created a public climate of hostility and prejudice in respect of the accused (and the co-offender Mr Whyte). In support of this contention the accused relies upon the affidavit of Mr Bawden sworn 5 January 2022.
Mr Bawden deposes that the events leading to the accused charges have been referred to by media organization as 'Australia's biggest public sector corruption scandal'.[32] The accused contends that the media reports have generated extensive pre-trial publicity that has resulted in a public climate of hostility and prejudice towards the accused and his co-accused, Mr Whyte. That publicity commenced on or about 15 November 2019 when the accused and Mr Whyte were arrested. The relevant newspaper articles and website reports of 15 November 2019 are produced by Mr Bawden.[33]
[32] Affidavit of Mr Bowden [15].
[33] Affidavit of Mr Bowden, annexure HTB-1 [16].
Mr Bawden further deposes that extensive pre-trial publicity was generated on or about 19 November 2021 when Mr Whyte was sentenced to 12 years immediate imprisonment in respect of 564 counts. Mr Whyte pleaded guilty to the 564 counts of corruption.
Mr Bawden produces the results of research conducted concerning the pre-trial publicity. Mr Bawden states that 1400 general search results are returned in respect to the search of the accused's name regarding the alleged acts of corruption. Further, 165 news search results were identified, an undefined number of image search results were returned, and 54 videos search results were returned from the research conducted.
Mr Bowden deposes that a significant amount of the pre-trial publicity refers to the accused and Mr Whyte as 'associates' in the scandal. Mr Bawden submits that the connection between the accused and Mr Whyte will recreate a risk that a jury, even if properly directed, will infer the accused's guilt from the fact of Mr Whyte's admissions, pleas of guilty, subsequent conviction and sentencing. Therefore, the widespread publicity has created a climate of hostility.
I have considered the nature of the media reports and the social media posts. Understandably, given the nature and extent of the corruption offences committed by Mr Whyte, extensive media coverage has occurred. A trial judge would be required to direct the jury concerning pre-trial publicity. It is 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. However, in this case there has been widespread pre-trial publicity that arises from the time of the arrest of Mr Whyte, to his sentencing on his plea of guilty.

Complexity of trial

The accused's contention is that the trial may be characterised as complex for the reason that the State case relies upon voluminous material, and is difficult to follow, with a significant number of transactions. The accused submits that the trial would be an unfair burden on a jury.
The accused submits that the State case is in respect of an alleged complex financial scheme involving three corporations, two State government agencies, several bank accounts, thousands of financial transactions and the amount involved is $22 million. The evidence includes approximately 1200 pages of documents comprising bank statements, transaction histories, invoices and other accounting records and extensive electronic communications.
I accept that there is some complexity with the evidence given the significant voluminous nature of the State's brief of evidence.

Conclusion

I have revisited the two bases upon which the accused relies to ground the application and I have considered the composite weight of the two bases. Having done so, I am satisfied a trial by judge alone should be ordered.
In making that determination, I have carefully considered the submissions of counsel and am mindful that counsel for both the accused and State submitted that a trial by judge alone should be ordered. I am satisfied that the extensive media coverage is prejudicial, creating a public climate that is hostile or prejudicial to the accused. A significant factor that weighs on my finding is that the co-offender and principal offender pleaded guilty and was subject to extensive media coverage, prior and subsequent to his plea of guilty and being sentenced.
I must give full weight to the judicial direction that would be given at trial instructing the jury to put prejudice and sympathy to one side and deliver a verdict based solely on the evidence at trial. The evidence to be led at trial is voluminous and somewhat complex but not overwhelming.
Accordingly, I am satisfied, after considering the composite weight of the relevant factors relied upon by the accused, that it is in the interests of justice that the trial be heard before a judge alone. Therefore, the application is granted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Honourable Justice McGrath
9 MARCH 2023