The State of Western Australia v Glasfurd - [2022] WASC 403

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [2022] WASC 403
CORAM:   MCGRATH J
HEARD:   24 OCTOBER 2022
DELIVERED          :   25 NOVEMBER 2022
FILE NO/S:   INS 3 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE ERIC GLASFURD
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 - Expert evidence - Prejudicial evidentiary material - Whether directions likely to be effective

Legislation:

Criminal Code (WA), s 280
Criminal Procedure Act 2004 (WA), s 118
Road Traffic Act 1974 (WA), s 59(1)(b), 59A(1)(b)

Result:

Application dismissed

Representation:

Counsel:

Prosecution	:	Mr B E F Tooker
Accused	:	Mr S D Freitag SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Smiddy-Brown 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
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, Mr Glasfurd, is charged with one count of manslaughter contrary to s 280 of the Criminal Code (WA), one count of dangerous driving of a motor vehicle that was involved in an incident occasioning grievous bodily harm to another in circumstances of aggravation contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and four counts of dangerous driving of a motor vehicle that was involved in an incident occasioning bodily harm to another in circumstances of aggravation contrary to s 59A(1)(b) of the Road Traffic Act.
Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial in February 2023.
Mr Glasfurd 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 on 20 July 2022.
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 pre-judgment against the accused), that the trier of fact will be required to consider complex expert evidence and further, that the State proposes to lead confronting evidence at trial which will be prejudicial to the accused.
The State does not oppose the application. 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 not in the interests of justice to make the order. Accordingly, the application is dismissed.
In these reasons for decision, 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.The basis for the application and assessment.

The State's case

The State's case is outlined in an amended statement of material facts dated 4 March 2022. The relevant paragraphs of the statement of material facts are as follows:
On Friday 20 August 2021 the accused, Jamie Eric Glasfurd, drove into the city and parked at the City of Perth multi-story car park on Pier Street. He arrived at about 12:30pm and parked his vehicle, a supercharged V8 Range Rover SUV registration number 1FAX947, on Level 7. He spent the afternoon in the city.
At 6:17pm that evening the accused returned to the multi-story car park. He had a partly filled beer bottle in his hand. It took him some time to work out how to pay for his ticket using the vending machines. He appeared unsteady on his feet. Eventually he paid for his ticket and caught the lift. He went one level too far (Level 8) and had to walk down to Level 7. He got into his vehicle at 6:25pm. About a minute later he reversed out and started to drive down to the ground level.
As he drove from level to level, his car would slow down for the corners and then rapidly accelerate and lurch forward in the straight sections of the car park. This pattern was repeated for most of the journey down to the ground level.
At 6:30pm the accused exited the multi-story car park in his Range Rover SUV. Initially he turned left and travelled north on Pier Street, but only for a short distance. He then mounted the raised median strip and conducted an illegal u-turn. When he got to the other side of Pier Street he straitened up his vehicle such that he was now facing north. The accused then accelerated heavily. His vehicle lurched forward and raced up the short hill towards the intersection of Pier Street and Murray Street, which is controlled by traffic lights.
The accused crossed through the intersection, narrowly missing a vehicle travelling west in the intersection, and mounted the footpath on the east side of Pier Street. After hitting the raised kerb on the south-east corner of the intersection his vehicle ploughed into the rear of a Toyota Corolla, registration number 1DFI833, which was parked outside "My Place" (a pub). The Toyota Corolla then crashed heavily into a crowd of people who were sitting and standing outside "My Place".
…
At the time of the collision with the Toyota Corolla it is estimated that the accused's Range Rover was travelling at between 90-96 km/h. The speed limit along this section of Pier Street is 40 km/h.
The accused was arrested at the scene by police and conveyed to Royal Perth Hospital to be treated for the serious injuries he received in the crash. At blood sample was obtained from the accused under the provisions of the Road Traffic Act 1974. Upon analysis it was determined that the accused had 0.05mg/L of methylamphetamine, 0.01mg/L of amphetamine and 0.004 grams of alcohol per 100ml of blood in his system.
Counsel for the accused submitted that it is expected that the six counts will be defended on the basis that the accused placed his foot initially on the accelerator of the vehicle, however, upon removing his foot the accused re‑applied his foot to the accelerator instead of the brake, being a 'pedal error'. Counsel for the accused stated that the defence is that the act of the accused, in placing his foot on the accelerator, was an unwilled act pursuant to s 23A of the Criminal Code.[2]
[2] Written submissions of the accused filed on 21 October 2022 [3] - [4].

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 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.[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,[15] 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.[16] 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 [2007] WASC 299.
[16] 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,[17] but there are differing views as to whether this is a relevant factor.[18] I do not accept that the obligation to provide written reasons is a relevant factor.
[17] Arthurs v The State of Western Australia [73] - [76].
[18] 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.[19] There is not necessarily any time saved if an accused has a judge alone trial.[20] 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.[21] 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.[22]
[19] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[20] The State of Western AustraliavRayney [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[21] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[22] 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.[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 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 and 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 three bases in support of the application. First, that the CCTV footage of the vehicle incident is so graphic and disturbing that the jury may be unable to properly consider its relevance and significance. Second, that pre-trial publicity has created hostility or prejudice to the accused which a jury may be unable to put aside. Third, that the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial. I will consider each of the three bases for the application. I will also consider the composite weight of the three bases in determining the application.

CCTV recording of vehicle incident

The accused contends that the nature of the CCTV footage of the vehicle incident that the State proposes to lead at trial, whilst admissible, is so confronting for a member of the public that he would be unable to receive a fair trial. That is, the nature of the proposed evidence is likely to invoke in the jury, or at least some of its members, strong emotions that would interfere with, or prevent, a proper assessment of the evidence.
The evidence that grounds this contention comprises the CCTV footage of the vehicle being driven by the accused as it speeds up Pier Street and hits the Toyota Corolla, which then hits pedestrians sitting on the pavement area. The State also referred to still photographs of the vehicle incident scene but accepted that it was the CCTV footage that is of concern.[32] This requires an assessment of whether the prejudicial material is so confronting that it would invoke such strong emotions that the jury would be unable to make a proper assessment of the evidence and thereby determine the verdict according to law.
[32] ts 29 (24/10/2022).
The contention of the accused is that a judge alone trial is an effective safeguard against the unfairness that could occur to the accused arising from the confronting nature of the CCTV footage and photographs. The State agrees with that submission.
I have closely examined the CCTV footage of the vehicle incident. The footage records the vehicle driving at speed along Pier Street and then mounting the pavement, striking the Toyota Corolla, which crashed into the alfresco dining area where persons were seated. The CCTV footage is a recording taken from a distance and does not show any of the injuries to any person involved. I accept that the CCTV footage is confronting and disconcerting for the reason that it shows the vehicle striking the tables at which persons are sitting. However, the jury will be directed concerning the evidence and in particular, assessing evidence dispassionately and without prejudice.
In respect of the photographs of the crime scene, the police investigation evidence may be confronting to those not accustomed to viewing such things. However, there is nothing exceptional about the crime scene in this particular case. The very nature of murder or manslaughter trials involving a vehicular collision often means that graphic evidence concerning the circumstances of a death, including photographs or a crime scene recording, is received in evidence. 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 injured persons or a graphic forensic area.
Though, there is no suggestion in this case that the State will lead evidence concerning injuries or the location of injured persons. The manner in which the evidence is lead will be subject to the scrutiny of the learned trial judge.
The sensitivity of jurors to such photographs can be too easily overstated.[33] If the learned trial judge forms a 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.
[33] R v Zammit [1999] NSWCCA 65 [156] (Wood CJ at CL).
However, the issue in this trial is not the still photographs, which will be limited, but the CCTV footage.
In closely considering the CCTV footage, I have formed the view that the concerns regarding the prejudice arising from this evidence will be sufficiently ameliorated by the directions given by the trial judge to the jury. Appropriate directions will be given by the learned trial judge in respect of the jury assessing evidence dispassionately and without prejudice. Further, I do not accept that the CCTV footage is likely to invoke in the jury, or at least some of its members, strong emotions that would interfere with, or prevent, a proper assessment of the evidence.

Pre-trial publicity

The accused also 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. In support of this contention the accused relies upon the affidavit of Ms Smiddy-Brown, legal practitioner, sworn 20 July 2022. Ms Smiddy-Brown deposes that in respect of print newspapers, there were three front page references and 12 articles referring to the accused and the vehicle incident. The newspaper articles are produced in Annexure A to Ms Smiddy-Brown's affidavit. In respect of online newspaper articles, 19 online newspaper articles referring to the accused and the vehicle incident were identified and are produced in Annexure B to Ms Smiddy‑Brown's affidavit. In respect of social media posts referring to the accused and the vehicle incident, 20 posts were identified. The social media posts are produced in Annexure C to Ms Smiddy-Brown's affidavit. Ms Smiddy-Brown deposes that in total 56 references to the accused and the vehicle incident were identified in the media.
I have considered the nature of the media reports and the social media posts. Understandably, given the nature of the vehicle incident in the CBD of Perth, there was extensive media coverage proximate to the time of the vehicle incident. However, I do not accept the proposition that the extensive media coverage is extremely prejudicial. I do not accept that the publicity has created a public climate of hostility or prejudice. 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. I am satisfied that judicial direction at trial would ensure that the jury is able to put prejudice and sympathy to one side and deliver a verdict based solely on the evidence at trial.

Complexity of trial - expert reports

In respect of the contention that the trial is of real complexity, the accused relies upon the expert evidence proposed to be led from the State and on his own behalf. Counsel for the accused states that 'given the plethora of expert evidence to be adduced in this trial, some of which will be in dispute; the possibility exists of the jury being unreasonably burdened by having to consider that evidence in detail.'[34] Certainly evidence may, in some trials, involve intricate and disputed expert evidence or the jury may have difficulty in the applying different legal principles in the context of complicated questions of fact. The accused contends that the expert reports will comprise the following:[35]
1.Endocrinologist evidence will be called by the accused regarding the accused's medical condition at the time of the incident. A responsive report from the State is anticipated.
2.Evidence of crash investigators/crash reconstruction. Technical evidence will be adduced by expert evidence from both the State and accused.
3.Toxicology evidence will be adduced by the State regarding the accused's blood test.
4.Evidence from a mechanical engineer detailing the translation of the diagnostic data from the accused's vehicle will be adduced by the State.
5.Evidence from a forensic collision investigator and biomechanist has been sought by the accused in relation to human factors in instances of vehicle crashes. It is anticipated the State may seek a responsive report.
[34] Written outline of submissions of the accused filed on 20 July 2022 [11].
[35] Written outline of submissions of the accused filed on 20 July 2022 [8].
I have received expert reports that the State and accused anticipate will be relied upon at trial. I have considered the reports provided. I am not satisfied that the reports are of such complexity that the jury may have difficulty in understanding the evidence nor applying that evidence to the questions of fact.
In respect of medical reports, the State has obtained a report from Dr Welborn, emeritus consultant in endocrinology and the accused has obtained a report from Dr Winocour, consultant diabetologist and endocrinologist. The endocrinologists each express opinions as to whether the accused was experiencing an acute hyperglycaemic episode at the time of the vehicle incident or whether diabetes glucose levels, hypertension or therapy for those conditions could be factors in the vehicle incident. A jury, properly directed, will readily understand the reasoning and conclusions of Dr Welborn and Dr Winocour.
The State has obtained a report from Professor Martin-Iverson, a toxicologist. The report of Professor Martin-Iverson is an orthodox report that succinctly outlines the level of methylamphetamine and the effect that methylamphetamine may have had on the accused. A jury, properly directed, will readily understand the reasoning and conclusions of Professor Martin-Iverson.
In respect of the vehicle collision, reports have been obtained from Mr Roger Hughes, mechanical engineer, who undertook a vehicle diagnostics analysis, Senior Constable Michael Feldmann, crash reconstruction officer from the Major Crash Investigation section of WA Police and Mr Andy McMahon, team leader at Main Road WA, who conducted a crash location analysis. The accused has obtained a report from Mr Mark Hill, road accident reconstruction analysis expert.
The crash location report by Mr Andy McMahon is narrow in compass and addresses whether any road environment features contributed to the vehicle incident. The opinion of Mr McMahon will be readily understood by a jury.
I accept that there is some complexity with the proposed expert evidence concerning the vehicle diagnostics, crash location and reconstruction analysis conducted by Mr Hughes, Mr Hill and Mr Feldmann. However, I am satisfied that the reasoning and conclusions of the respective experts will be lead by experienced counsel and will be understood by a jury properly directed.

Conclusion

I have revisited the three bases upon which the accused relies to ground the application and I have considered the composite weight of the three bases. Having done so, I am not 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 CCTV footage, to the extent that it is confronting, would not interfere with or prevent the jury undertaking the proper assessment of the evidence. Nor am I satisfied the extensive media coverage is extremely prejudicial, creating a public climate of hostility or prejudice. I am satisfied that judicial direction at trial would ensure that the jury is able to put prejudice and sympathy to one side and deliver a verdict based solely on the evidence at trial. Further, I am satisfied a jury properly directed will understand the proposed testimony of the expert witnesses to be called by the State and accused at trial.
Accordingly, I am not satisfied that it is in the interests of justice that the trial be heard before a judge alone. Therefore, the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
25 NOVEMBER 2022