The State of Western Australia v Damjanovic - [2024] WASC 402

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DAMJANOVIC [2024] WASC 402
CORAM:   MCGRATH J
HEARD:   25 OCTOBER 2024
DELIVERED          :   25 OCTOBER 2024
PUBLISHED           :   29 OCTOBER 2024
FILE NO/S:   INS 12 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
PETER DAMJANOVIC
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) - Whether interests of justice require a trial by judge alone - Prejudicial evidentiary material - Whether directions likely to be effective - Pre-trial publicity - Whether jury may be intimidated at trial

Legislation:

Criminal Code (WA), s 279
Criminal Procedure Act 2004 (WA), s 118

Result:

Application for trial by judge alone granted

Category: B

Representation:

Counsel:

Prosecution	:	Mr J Whalley SC & Ms L Knuckey
Accused	:	Mr S Freitag SC & Ms C Kilby

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Legal Aid (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
R v Zammit [1999] NSWCCA 65
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 is charged with one count of murder contrary to s 279 of the Criminal Code (WA).
The accused has pleaded not guilty to the count and will appear for trial in October 2025.
The accused applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), that his trial be by a judge alone.[1]
[1] Application for Trial by Judge Alone dated 13 September 2024.
The application is based on the following grounds:
(i)The confronting evidence that the State proposes to rely upon at trial.
(ii)Extensive pre-trial publicity regarding the alleged offending that has resulted in a public climate of hostility and/or prejudice towards the accused.
(iii)A risk that a jury would be intimidated by the possible conduct of the deceased's family at trial.
The State, whilst adopting a neutral position in respect to the application, made the submission that in the circumstances of the case, it is open to make the finding that it is in the interests of justice for the trial to be conducted before a judge alone.
For the following reasons, I am satisfied that it is in the interests of justice to order a trial by judge alone. Therefore, the application is granted.
In my reasons, I will consider the following matters:
(1)The nature of the State's case;
(2)The legal principles relevant to an application under s 118 of the CPA; and
(3)An assessment of the application.

The State's case

The State's case is outlined in an amended statement of material facts in the following terms:[2]
[2] Amended Statement of Material Facts dated 9 April 2024.
1.This is a murder in the context of family violence.
2.The deceased, Tiffany Woodley, was born on 4 September 1987. She was [35] years old when she was killed by the accused, who was her partner.
3.The deceased was living at 125 Birkett Street, Bedford. She had lived there for over 13 years. She had three children: Jessica Woodley (15), Peter Damjanovic aka 'Young Peter' (6) and Lydia Damjanovic (5). Peter and Lydia are the children of the accused. They were living with the deceased's mother, Meretta Kickett, and the deceased's sister Semisha Kickett in Banksia Grove as per a court order.
4.The relationship between the deceased and the accused was characterised by family violence from early on. The deceased often called Meretta and told her that the accused had beaten her. On some of those occasions Meretta could hear the accused in the background mocking the deceased for 'running to her mother'. On one occasion the deceased came to Meretta's house 'all beat up and with her hair matted'. The deceased also had multiple restraining orders against the [accused], the last one from May 2023.
5.The accused lived at the deceased's address on and off. He had not been living with her until about a month before her death, when he came back to help her move things, and started living at the deceased's house again. The accused had been kicked out of St Patrick's Lodge in Fremantle in March 2023 and been living on the streets.
6.The deceased had mental health problems, and was at Royal Perth Hospital a few weeks before the attack due to her mental health.
Monday 7 August 2023
7.In the morning of 7 August 2023 the accused and the deceased went to Yagan Square in the city together. The deceased had an appointment at Royal Perth Hospital, and the accused had an appointment in Fremantle.
8.The accused took the train to Fremantle for his appointment, which was scheduled for 11 am and lasted for 45 minutes. After the appointment he went to see a relative for the train fare back to Perth.
9.He took the train back to Yagan Square. Somebody gave him a full bottle of port which he started drinking during the train trip. By the time the accused returned home he had consumed half of the bottle. From Yagan Square the accused took the bus to Coles in Inglewood. He obtained some food from Coles and walked to the deceased's house, which is about 20 minutes away.
10.Some time after 4 pm an argument ensued between the accused and the deceased. The accused became angry and hit the deceased. He told her to go to the bathroom because her face was bleeding.
11.In the bathroom the accused viciously assaulted the deceased by hitting her to the head multiple times with a weapon, believed to be a towel rail. The deceased tried to flee but the accused prevented her from leaving the house because of her bloodied face. The accused tried to push her back into the shower and the deceased fell to the ground. The accused took the mobile telephone off the deceased. He kicked the deceased to the body and to the head. When the deceased stopped breathing, the accused called 000.
12.In the 000 call the accused stated that:
•    The deceased was not breathing and that he had killed her;
•    They had an argument;
•    The deceased was lying on the floor and that he could see her brains;
•    He beat her because they had an argument;
•    The deceased's face was half missing.
13.The first police officers arrived at 5:09 pm. The front door was open, but the security screen was locked. The accused was crouching over the deceased. Officers shouted at him to open the door, which he did.
14.They heard the accused say, 'help me, help me'. The accused came out of the house wearing a white tank top and green jeans. His face, arms, and hands were covered in blood and there was blood on his top. Police arrested him. He kept saying 'she needs help', and 'please save her'. The accused wailed when he was cautioned.
15.The deceased was lying on the floor in the corridor in a large amount of blood. The right side of her face had been ripped from her skull with her skull clearly visible to the attending officers.
16.St John Ambulance officers arrived at the address at about 5 pm. They removed the deceased from the house into the garden as there was insufficient space in the house to treat her. Resuscitation efforts were unsuccessful, and the deceased was declared life extinct at the scene.
17.At 5:14 pm when the accused was told that he was under arrest he said, 'Yes sir, yes, I'm a murderer'. Due to the accused taking large gasps of air when in the pod of the police car, paramedics were asked to check on him. The accused said that he would 'burn in hell for it', that he just wanted the deceased to be alive and that the deceased was Tiffany Woodley, the mother of his children. The accused stated that he had injected speed in the morning, and that he usually has about $300 worth of speed every day.
18.The accused was taken to hospital for assessment. His blood sugar levels were very high, and his heart rate elevated. The accused said he had drunk an entire bottle of port earlier in the day, [and that the] deceased had been smoking marijuana and [had] been 'picking on him'. He also said that his kids would hate him for what had happened.
19.The accused's blood contained alcohol and methylamphetamine.
20.On 8 August 2023 at 10:40 am the accused participated in an electronically recorded interview with officers from the Homicide Squad, during which he made several admissions, including that he had hit the deceased with his hands and the showerhead, and kicked her. He was evasive about the use of the towel rail. He claimed that the deceased had fallen, and hit her head against the bathroom wall. He said that he wanted to hurt her but did not know that she was going to die. He said that he had lost control, and that he rang the ambulance when she stopped breathing.
21.The post‑mortem examination found that the cause of death were injuries of the head and face in a woman with coronary artery atherosclerosis and urinary tract infection. It was noted that there were multiple soft tissue injuries to the deceased's head and face, as well as fractures to the nasal bones and both orbital floors. There were features of associated traumatic brain injury including bilateral patchy thin subdural haemorrhage and bilateral patchy subarachnoid haemorrhage, more extensive of the right side of the brain. There were contusions of the right frontal and temporal lobes.
(footnotes omitted)
The accused's counsel submitted that the issues at trial will be causation and whether the accused had the requisite intention for the offence of murder.

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 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. The Court of Appeal outlined the relevant legal principles in Steele v The State of Western Australia.[3]
[3] 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.[4] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[5]
[4] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [317].
[5] 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.[6] 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.[7]
[6] LFG v The State of Western Australia [318].
[7] 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.[8] 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'.[9] The fundamental issue with which s 118 of the CPA is concerned is that the accused receives 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.[10] 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.[11]
[8] LFG v The State of Western Australia [319] - [320].
[9] LFG v The State of Western Australia [320].
[10] LFG v The State of Western Australia [321].
[11] 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.[12] 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.
[12] 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.[13]
[13] 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.[14] 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.[15] That is because the interests of justice are not coterminous with the interests of an accused.
[14] Arthurs v The State of Western Australia [2007] WASC 182 [79] - [80]; The State of Western AustraliavRayney [26].
[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] There is not necessarily any time saved if an accused has a judge alone trial.[19] However, 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.[20] 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.[21]
[18] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[19] The State of Western AustraliavRayney [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[20] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[21] 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.[22] 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.[23]
[22] The State of Western Australia v Martinez& Ors [36].
[23] 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 a jury may be unable to properly consider its relevance and significance.[24] 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.[25]
[24] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[25] 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,[26] 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 of 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.
[26] 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.[27]
[27] 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:[28]
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.
[28] 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:[29]
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]).
[29] 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 the trial and during the judge's summation, the risk of prejudice or pre-judgment could not be ameliorated.[30]
[30] 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 three bases in support of the application. First, that pre‑trial publicity has created a public climate of hostility or prejudice to the accused, which a jury may be unable to put aside. Second, the nature of part of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance. Third, there are risks that a jury would be intimidated by the possible conduct of the deceased's family. I will consider each of the three bases relied upon.

Graphic nature of State case

The contention of the accused is that a judge alone trial is an effective safeguard against the unfairness to the accused arising from the confronting nature of part of the evidence the State proposes to rely upon at trial.
I am mindful that the State will be required to establish a forensic purpose for showing the crime scene and, in particular, any photographs that depict the deceased person's body or a graphic area.
The accused anticipates that the State will call as witnesses a number of experts who examined the deceased. The State will lead evidence of the nature and type of injuries sustained by the deceased to support the State case that the accused had the requisite intention for murder. It may also be necessary for the State to lead medical evidence concerning the injuries to prove causation. Counsel for the State confirmed that it will be necessary to lead evidence of 'photographs of the injuries to the deceased's head and face which are confronting and graphic'.[31] At the hearing of this application the State produced a series of photographs that are likely to be produced at trial. Those photographs are aptly described as confronting and graphic.
[31] State's written submissions dated 18 September 2024, [3].
Counsel for the State submitted that given the nature, extent and location of the injuries, the State agrees with the defence contention that 'it would be difficult, if not impossible, to redact the prejudicial and confronting aspects of the images … to reduce the visceral impact of the viewing of [them] whilst preserving their evidentiary value'.[32]
[32] State's written submissions dated 18 September 2024, [4].
In respect to the crime scene, the State proposes to lead evidence including body worn video recordings of the scene. However, counsel for the State submitted that at trial it is proposed to take steps in presentation that avoids the actual viewing of the deceased's body.
Certainly, the police investigation evidence and the post‑mortem evidence may be confronting to those not accustomed to viewing such scenes. The very nature of a murder trial often means that graphic evidence concerning the circumstances of the killing, including photographs and crime scene recordings, is received in evidence. The sensitivity of jurors to such photographs can be too easily overstated.[33]
[33] R v Zammit [1999] NSWCCA 65 [156] (Wood CJ at CL).
The manner in which the evidence is led is subject to the scrutiny of the learned trial judge. If the learned trial judge forms the view that the State proposes to lead photographs or recordings of the crime scene that are particularly confronting, then the learned trial judge will make an assessment of the forensic value of the confronting photographs and determine any objection to admissibility.
Further, appropriate directions will be given by the learned trial judge in respect of the jury assessing evidence dispassionately and without prejudice.

Pre-trial publicity

In respect to the pre-trial publicity, the accused relies upon the affidavit of Ms Kilby, legal practitioner, affirmed 13 September 2024. Ms Kilby produces samples of news articles and extracts from online publications concerning the accused, publications from GoFundMe campaigns in support of the deceased's family, and publications concerning the deceased's family attending family domestic violence rallies and vigils.
Counsel for the State accepted the factual accuracy of the defence submissions and information produced by Ms Kilby regarding pre-trial publicity.[34]
[34] State's written submissions dated 18 September 2024, [8].
The State submits that given that the trial will commence in October 2025, it is reasonable to assume that the previous publicity will not be operating on the minds of the potential jurors at the time of their empanelment.[35] The defence position is that in the period prior to trial the publicity will recommence with the same extensive coverage and issues arising. In particular, community concerns regarding domestic violence remains a prominent public issue and the accused's trial will necessarily attract widespread media attention as an example of domestic violence.[36]

Jury intimidation by family members

[35] State's written submissions dated 18 September 2024, [9].

[36] Accused's written submissions dated 13 September 2024, [50].

In respect to the issue of intimidation during the trial by members of the family, it must be understood that counsel is not suggesting that the family members will deliberately set out to intimidate. Rather, the family of the deceased are, understandably, engaged with the proceedings. Counsel submitted that family members have been 'very vocal about their anger towards the accused and have expressed this anger in the court environment'.[37]
[37] Accused's written submissions dated 13 September 2024, [53].
A further issue is that family members are prominent at the courthouse, usually wearing clothing expressing support for the deceased.
The contention is that there is a real risk that, even inadvertently, the family of the deceased could engage in conduct that results in the intimidation of jurors or potential jurors by their actions inside or outside the court.[38]
[38] Accused's written submissions dated 13 September 2024, [54].
The State relies upon the affidavit of Mr Whalley SC, legal practitioner, affirmed 17 September 2024. Mr Whalley SC deposes that the deceased's family, who will attend the trial in person, propose to wear clothing which prominently depicts images of the deceased. The family have expressed the view that wearing clothing is an important part of respecting the deceased and that they would be upset and angry if they were unable to wear and display that clothing.
The conduct of members of the public, including secondary victims, is a matter in respect to which the trial judge will give directions and manage. It may be assumed that a trial judge will effectively manage such issues. However, the prospect of an unsettled courtroom due to the conduct of family members, will certainly be better managed before a judge alone rather than a jury.

Determination

In this case, I am satisfied that it is in the interests of justice that the trial be heard before a judge alone. I do hold concerns in respect to pre-trial publicity. The extensive media coverage will in all likelihood recommence in the period prior to trial. The deceased's family have been actively engaged in the community concerning the circumstances of the death. It is highly likely the deceased's family will continue to speak publicly on the death and domestic violence in the community. There exists a risk of the publicity creating a climate of hostility or prejudice to the accused. I also hold concerns regarding the graphic and confronting nature of some of the evidence proposed to be led by the State at trial. The evidence is graphic and most confronting.
I have considered the composite weight of each factor relied upon by the accused. Having done so, I am satisfied that it is in the interests of justice that the trial be conducted before a judge alone. Accordingly, the application that the trial be heard before a judge alone is granted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
29 OCTOBER 2024