The State of Western Australia v Evans - [2012] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- EVANS [2012] WASC 87

CORAM: COMMISSIONER SLEIGHT

HEARD: 8 MARCH 2012

DELIVERED : 8 MARCH 2012

PUBLISHED : 15 MARCH 2012

FILE NO/S: INS 71 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ANTHONY THOMAS EVANS
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) - Charge of murder - Earlier trial the subject of a television documentary - Order for new trial after documentary televised

Legislation:

Criminal Procedure Act 2004 (WA), s 118

Result:

Order for trial by judge alone without a jury

Category: B

Representation:

Counsel:

Prosecution : Mr D Dempster
Accused: Mr S Vandongen SC & Mr P A Monaco

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: GV Lawyers

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

Evans v The State of Western Australia [2011] WASCA 182
Hone v The State of Western Australia [2007] WASCA 283
The State of Western Australia v Iley [2006] WASC 107
The State of Western Australia v Rayney [2011] WASC 326
The State of Western Australia v Tarau [2005] WASC 290
TVM v The State of Western Australia [2007] WASC 299

COMMISSIONER SLEIGHT:
(This decision was delivered orally on 8 March 2012 and has been edited from the transcript.)

The accused Mr Evans is charged with the murder of Alana Marie Dakin. Mr Evans has pleaded not guilty and the trial has been listed for hearing later this year. Mr Evans applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (the CPA), that the trial be by a judge alone trial without a jury. The application is not opposed by the State.
The application is supported by three affidavits of Ms Diana Lazarou sworn on 14 February 2012, 16 February 2012 and 6 March 2012. The grounds upon which the application is made are as follows:
(a)The potential prejudice to Mr Evans if the trial is conducted before a jury in light of the significant pre-trial publicity and consequential notoriety.
(b)Mr Evans anticipates that the defences that were raised at the second trial in June 2010 will be raised at this trial, including a defence of insanity pursuant to s 27 of the Criminal Code (WA) and to that extent Mr Evans' mental state will be in question. It is anticipated that both the prosecution and the defence will lead expert psychiatric evidence at the trial.

Legal principles

Under s 118 of the CPA, a judge has a discretion to grant an order for a trial by judge alone without a jury if the judge considers it is in the interests of justice to do so, providing that, if the application is made by the prosecutor, such an order is not to be made unless the accused consents.
In the decision of The State of Western Australia v Rayney [2011] WASC 326, I considered in detail the principles that apply to an application for a trial by judge alone, particularly in relation to an application based upon the ground of excessive adverse publicity. My conclusions in that decision as to the law can be summarised as follows:
1.The starting point is the discretion is to allow a trial by judge alone. If the discretion is not exercised, the default position is that the trial will be by jury. The discretion to order a trial by judge alone only arises if the court considers that it is 'in the interests of justice to do so' [10].
2.The concept of what is in the interests of justice is one which should not be narrowly defined. When considering what is in the interests of justice, there is not a starting notion that a trial by jury is preferable to a trial by judge alone, but the applicant has the burden of convincing the court that it is in the interests of justice for such an order to be made [11], [17].
3.Weight should be given to the subjective views of the accused. However, the subjective views of the accused do not necessarily determine the outcome of an application (except where the application is by the State and the consent of the accused is required - s 118(4)). The interests of justice involve other considerations, including providing a trial that is likely to be perceived by the wider community as fair and independent [26].
4.The obligation of a judge, sitting without a jury, to give detailed reasons is generally unlikely to be a relevant factor. One exception might be where the complexity and the technical nature of the evidence is such that an accused wishes to obtain reasons to ensure that whatever verdict is reached is based upon a correct comprehension of the evidence [29].
5.An example of where it might be in the interests of justice to grant a judge alone trial is where the accused contends he cannot receive a fair trial due to pre‑trial publicity. A judge alone trial may be appropriate where there is a public climate of hostility or prejudice [34].

Background

I will now turn to the background of this matter. Mr Evans has twice stood trial before a judge and jury in relation to the murder charge brought against him of murder. In December 2008, he was convicted by a jury of murder. In February 2010, the Court of Appeal allowed an appeal against this conviction and a retrial was ordered. A retrial occurred in September 2010, again before a judge and jury. Again the accused was convicted of murder. On 5 September 2011, the Court of Appeal allowed an appeal against conviction and a second retrial was ordered.
The nature of the issues that are likely to arise at the third trial can be seen from a summary of the issues at the second trial. At the second trial Mr Evans admitted that he had killed the deceased, Ms Dakin. In the Court of Appeal decision, Evans v The State of Western Australia [2011] WASCA 182, quashing the conviction arising from the second trial, McLure P summarised the psychiatric issues as follows:
The appellant adduced evidence from two psychiatrists Dr L Walton and Dr V Pascu. The State also called a psychiatrist, Dr A Brett. The psychiatric evidence was unanimous; the appellant was at the material time suffering from a mental impairment. There was disagreement as to the precise nature of that impairment. Doctors Walton and Pascu diagnosed the appellant as suffering chronic schizophrenia. Dr Brett was unable to reach a view as to the nature of the mental impairment. His provisional differential diagnosis was between schizotypal disorder and psychotic disorder not otherwise specified. Dr Brett accepted that his differential diagnosis may have been wrong and the diagnosis of Doctors Pascu and Walton correct … All experts agreed that the appellant suffered psychotic episodes. The question in issue was whether the appellant was psychotic when he killed the deceased and if so, whether he was psychotic to such a degree as to deprive him of the capacity to know that he ought not to do the act in question. Doctors Walton and Pascu said yes. Dr Brett said no. He linked the killing to the background of domestic violence. It was accepted that the appellant's conduct in the police interview was an important indicator of whether he was psychotic at the time of the killing [6].
In addition to the insanity defence, Mr Evans argued at the second trial the defence of provocation to the charge of murder. This is likely to be an issue again at the third trial.
Evidence was led at the second trial by the State of a past history of domestic violence. The State's case was that the killing of Ms Dakin was due to an escalation of domestic violence and not due to any psychotic episode on the part of Mr Evans. The defence argued that drunken aggression by the deceased led to a stressful situation which activated a psychotic episode causing Mr Evans to kill Ms Dakin.

Publicity ground

Both previous trials and the Court of Appeal decisions received a certain amount of publicity by way of normal news coverage which has been detailed in an affidavit of Ms Diana Lazarou sworn on 14 February 2012. In my opinion, the publicity by way of reporting of the previous trials and the Court of Appeal decisions by way of normal news coverage was not excessive and would not justify an order being made for a trial by judge alone without a jury.
However, a unique aspect of the pre-trial publicity in this case has been an ABC documentary, 'On Trial'. The documentary consisted of five weekly episodes. Episodes 3 and 4 of the documentary covered the second trial of Mr Evans. Both episodes concerning Mr Evans' trial included extensive footage from the trial, as well as interviews with counsel appearing, interviews with the instructing solicitor for the accused, footage of conversations between the accused and his instructing solicitor, an interview with an investigating officer, interviews with the victim's family and friends and an interview with the accused's family.
In my opinion, there are a number of aspects of the documentary which are clearly prejudicial to Mr Evans.
Firstly, an interview with counsel appearing for the State, which was shown in both episodes, contained an expression of counsel's personal opinion that the accused's conduct in the police interview suggested to him that Mr Evans was sane at the time of the killing of Ms Dakin.
Secondly, the officer in charge of the investigations also expressed personal opinions concerning the conduct of Mr Evans during his police interview.
Thirdly, members of the family of the deceased expressed strongly emotional opinions that the accused was guilty of the offence and that a jury should not be deceived by the argued defence of insanity.
Fourthly, the footage of the conversations between Mr Evans and his solicitor are suggestive of a normally functioning person, but are potentially deceptive because of the editing process conducted by the producers of the documentary. For example, there is other material in the documentary suggesting that during the trial Mr Evans' mental state had deteriorated to such an extent that there was a risk that the trial might be terminated.
Fifthly, the documentary records that Mr Evans was found guilty by the jury.
The episodes of the documentary that covered Mr Evans' trial were telecasted by the ABC on 16 June 2011 and 23 June 2011.
According to the affidavit material filed in support of the application the documentary can be purchased online from the ABC online shop and can also be accessed through other Internet sites. There is no evidence before me as to the extent the live telecast on ABC television was viewed in Western Australia or the extent that the documentary has been purchased online. However, notwithstanding this, the nature and extent of the publicity received of the two previous trials, in particular the second trial, is quite exceptional and without precedent.
Of course, at the third trial, steps can be taken to minimise the risk that jurors will be influenced by pre‑trial publicity. Firstly, on empanelling the jury, the judge could inquire if any of the panel had viewed the documentary and those jurors who indicate that they have viewed the documentary could be discharged. Secondly, the jury could be given a strong direction by the trial judge not to watch the documentary or discuss the matter with anyone who has watched the documentary.
However, notwithstanding these precautions there remains a risk of jurors becoming aware of the content of all or part of the documentary which is prejudicial to the accused. This might occur because someone might mention the content of the documentary to a juror or jurors, or specific reference to the documentary in comments by the trial judge may heighten curiosity to such an extent that the warnings of the judge are ignored. In TVM v The State of Western Australia [2007] WASC 299, McKechnie J emphasised the extent and nature of pre‑trial publicity may create an unfair trial. In some cases this can be cured by a direction but in other cases it is in the interests of justice to order a judge alone trial. McKechnie J stated as follows:
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].
In Rayney I made the following observations:
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, 532 - 533 (Street CJ, Yeldham & Finlay JJ agreeing); The State of Western Australia v BLM [2009] WASCA 88 (Buss JA, with whom Owen, Wheeler & 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 [70] - [73]; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; R v Glennon (1992) 173 CLR 592, 603 (Mason CJ & 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 (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 [87] [34].
Although not determinative of the issue, I believe it is also of significance in this matter that the State does not oppose the application for trial by judge alone and acknowledges in written submissions that there is a risk of an unfair trial as a result of the pre-trial publicity in the form of the ABC documentary.
Further, given that there have already been two trials, it is also relevant to consider the extent of the injustice that might be created to the accused if the third trial has to be terminated if, notwithstanding the judge's direction, the jury accesses the documentary.
Taking into account all of these factors, I conclude that, given there exists a means available by way of a judge alone trial to avoid the potential unfairness to the accused created, it is in the interests of justice to make an order that there be a trial by judge alone without a jury and I exercise my discretion to do so.
For completeness' sake, I will deal with the second ground of the application based upon the fact that the trial will involve resolving conflicting psychiatric expert evidence relating to the defence of insanity. Counsel appearing for Mr Evans relies upon three cases where applications were granted for a trial by judge alone, essentially on the basis that the evidentiary issue to be determined was whether the accused was not guilty by reason of insanity. See The State of Western Australia v Tarau [2005] WASC 290 [3]; The State of Western Australia v Iley [2006] WASC 107 [3]; and Hone v The State of Western Australia [2007] WASCA 283 [18].
However, all of these cases involved situations where the facts of the matter were not in dispute and the trial judge was simply left to decide whether the accused was insane at the time of committing the offence based upon expert psychiatric evidence. In this case there are far broader issues to be decided, including the defence of provocation. Further, the question of whether Mr Evans was insane at the time of the commission of the killing of Ms Dakin does not simply involve resolving the conflict in expert psychiatric evidence by reference to that evidence alone, but involves the trier of fact assessing the competing expert evidence in the context of the accused's behaviour during the police interview and the history of domestic violence between the accused and Ms Dakin.
Given the nature of the expert psychiatric evidence to be presented and the importance to be attached to the conduct of Mr Evans during the police interview, I would not have been satisfied that it is in the interests of justice that there be a trial by judge alone without a jury if this had been the sole ground of the application. The evidence is not of such complexity that one can infer that a jury would have difficulty following the evidence. Further, a jury is equally equipped to assess the significance of the accused's behaviour during the police interview and how that relates to the psychiatric evidence.
For these reasons, the second ground of the application is dismissed. However, in light of my conclusion in relation to the issue of pre-trial publicity as stated earlier in this decision, I conclude that it is in the interests of justice that an order be made that the retrial be by judge alone without a jury.