Thompson v The State of Western Australia - [2016] WASC 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THOMPSON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 387

CORAM: FIANNACA J

HEARD: 16 SEPTEMBER, 6 OCTOBER, 15 & 17 NOVEMBER 2016

DELIVERED : 17 NOVEMBER 2016

FILE NO/S: INS 38 of 2016

BETWEEN: TAMARA LOUISE THOMPSON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for trial by judge alone - In the interest of justice - Adverse pre-trial publicity - Prejudicial to accused - Difficulty for jury to be objective - Variety of life experiences from jury - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 118

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms H E Prince
Respondent: Ms C Barbagallo

Solicitors:

Applicant: Arndt Legal
Respondent: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Coates v The State of Western Australia [2009] WASCA 142
Hone v The State of Western Australia [2007] WASCA 283
LFG v The State of Western Australia [2015] WASCA 88
FIANNACA J:
(This judgment was delivered orally on 17 November 2016 and has been edited from the transcript.)

The application and outcome

This is an application pursuant to s 118 of the Criminal Procedure Act 2004 (WA) for trial by judge alone.
The accused is charged that, on a date unknown between 1 April 2015 and 19 July 2015, she murdered her infant child, D, at Waggrakine, which is a suburb of Geraldton.[1] The allegation is that the accused caused her child's death by failing to provide her with the necessaries of life in the way of sustenance (in effect, that she starved the child to death) and that she intended to kill the child. It is alleged that, after the child died, the accused concealed the child's body in a bag in the shed of her home and then lied about where the child was. It is also alleged that, when she was interviewed by the police when it was suspected that the child was deceased and that she was responsible, the accused admitted to starving the child.
[1] Criminal Code (WA) s 279.
The trial is listed to commence on 1 December 2016 in the Supreme Court in Perth. It is listed for 12 days.
Section 118 of the Criminal Procedure Act provides that, where an accused is committed for trial to a superior court, either the prosecutor or the accused may apply for an order that the trial be by judge alone without a jury. Any such application must be made before the identity of the trial judge is known to the parties.[2] That was the case when the application was made on 26 April 2016.
[2] Criminal Code (WA) s118(2).
The hearing of the application has had a protracted history. The trial was originally listed to commence on 17 October 2016 in Geraldton. The application for trial by judge alone was listed to be heard on 16 September 2016. On that date, the application was adjourned to 6 October 2016 because expert reports that the accused's counsel was expecting and which would be relevant to the application were not yet available. The hearing proceeded on 6 October 2016. However, because of the late receipt of the expert material and the continuing unavailability of one of the reports on which the accused intended to rely, the State formed the view that the trial could not proceed on 17 October 2016, because it required more time to consider the reports and consult its own experts. An application to vacate the trial dates was granted.
An application was then made on behalf of the accused to change the venue for the trial to Perth in order that the trial could proceed this year, which would not have been possible if it had remained in Geraldton. That application was granted, hence the current listing on 1 December 2016. Despite the proximity of the trial dates at this stage, it remains the case that the parties do not know the identity of the trial judge.
An order may be made under s 118 if the court considers it is in the interests of justice to do so.
The application has been brought on three grounds which are said to justify the making of the order in the interests of justice.
The first is that there has been adverse pre‑trial publicity about the case that may make it difficult for the accused to get a fair trial before a jury. More specifically, there is evidence that a number of contributors to commentary on a Geraldton social media website have prejudged the case adversely to the accused, and there is a risk that such persons would be in the jury pool.
The second ground is that the very fact that the accused is alleged to have killed her baby, in combination with her conduct in concealing the body of the deceased and what is described as graphic and disturbing evidence about the conditions of her home and her drug use, will make it difficult for a jury to consider the issues in the trial objectively.
Thirdly, the accused submits that there will be expert evidence of a technical nature that may be difficult for the jury to understand or, alternatively, that the jury's capacity to properly consider that evidence will be adversely affected by the emotional reaction that will be engendered by the matters relied on in support of the second ground.
For the reasons which follow, I have come to the conclusion that none of the matters individually or in combination justify the making of an order in the interests of justice, and, therefore, the application should be refused.

Evidence on the application

On an application for trial by judge alone under s 118, the court may inform itself in any way it thinks fit.
The parties filed submissions and chronologies of the evidence, which were accepted as adequately summarising the prosecution case and other available evidence. They have also referred me to specific parts of the evidence on the prosecution brief which they consider to be of relevance to the application.
In addition, two affidavits were filed on behalf of the accused in respect of the ground that relies on adverse publicity and social media. They were made by Ryan Peter Arndt, the accused's solicitor, and were affirmed on 26 April 2016 and 5 October 2016. The first of the affidavits attached printouts of pages from the Everything Geraldton Facebook website which were said to be relevant.
Further, I have been provided with reports from three experts upon whom the defence intends to rely. They are Professor Peter Jones, who is a consultant paediatrician; Professor Paul Skerritt, who is a consultant psychiatrist; and Dr Greg Dear, who is a forensic psychologist.

Relevant legal principles

It is necessary for me to say something about the relevant principles, because of the way in which the case was put on behalf of the accused.
The relevant principles to be applied on such an application were set out in LFG v The State of Western Australia[3] in the judgment of Buss JA (as his Honour then was), with whom Mazza JA agreed. In a separate judgment, dissenting in the outcome, Martin CJ also identified the relevant principles at [113] ‑ [138]. There does not appear to me to be a great deal of difference between the principles identified by Buss JA and those identified by Martin CJ, although their Honours differed in their application of the principles to the circumstances of that case. However, the accused relies on one aspect of the reasons of Martin CJ that was not reflected in its terms in the reasons of Buss JA. It is necessary for me to deal with that.
[3] LFG v The State of Western Australia [2015] WASCA 88 [307] ‑ [338].
Martin CJ, having set out a number of principles derived from the authorities until then, and from the policies evident from the provisions of s 118 of the Criminal Procedure Act, said that:[4]
… the court's jurisdiction to make an order for trial by judge alone is enlivened by the court's conclusion that it would be in the interests of justice to make such an order, and is not conditional upon the court concluding that an order for trial by judge alone is "necessary" to ensure a fair trial, or to achieve a just result. So, if an order for trial by judge alone would advance or enhance the interests of justice by, for example, reducing a risk to the course of justice it will be in the interests of justice for such an order to be made.
Put another way, the terminology used by the legislature is inconsistent with a construction of the section which would limit the making of an order for trial by judge alone to a circumstance in which it was established that unfairness or injustice would result from the failure to make an order. Rather, the terminology used by the legislature is only consistent with a legislative intention that an order for trial by judge alone can be made by a court if, after taking account of the legislative policies evident from the subsections of s 118 to which I have referred, and all facts, matters and circumstances of the particular case which are relevant to the interests of justice, trial by judge alone would advance or enhance the interests of justice in the particular case before the court.
[4] LFG v The State of Western Australia [2015] WASCA 88 [126] ‑ [127].
His Honour subsequently drew together his observations to outline four principles that he considered emerged from the cases. The third of those was put in these terms:[5]
… any fact, matter or circumstance which might enhance or advance the interests of justice is properly taken into account by the court in the exercise of the discretion. So, in some but by no means all cases, the provision of reasons by a judge sitting alone may significantly enhance the interests of justice by, for example, enabling evaluation of the extent to which prejudice or emotion may have influenced the reasoning process, or by facilitating appellate review of complex technical issues turning upon the evaluation of conflicting expert evidence. Similarly, although the apprehension of prejudice by an accused person will not be of any weight if it is fanciful or irrational, nor will it be determinative of any application for trial by judge alone, the fact that an accused person wishes to forego the right to trial by jury is a matter properly taken into account in the exercise of the discretion under the section.
… because the question which arises under the section is not whether an order for trial by judge alone is necessary to ensure a fair or just trial, but rather, whether an order for trial by judge alone would enhance or advance the interests of justice, the fact that trial by judge alone will reduce or eliminate an appreciable risk to the impartial deliberations of a jury by reason of any form of prejudice or emotion is properly taken into account in the assessment of the interests of justice.
[5] LFG v The State of Western Australia [2015] WASCA 88 [137].
The first point to be made in respect of those observations of Martin CJ is that his Honour at no point indicated that the qualification that he placed on the words 'interests of justice', namely that the interests of justice would be advanced or enhanced, was intended to suggest that such an order must be made in any case where it might be thought that the interests of justice would be advanced or enhanced by a trial by judge alone. In my opinion, it is clear from his Honour's comments that he recognised there is still a discretion to be exercised, and that the issue of enhancement or advancement of the interests of justice is a factor to be taken into account in determining whether an order for trial by judge alone should be made. Similarly, when his Honour spoke about some specific matters, such as the availability of written reasons on a trial by judge alone as facilitating appellate review, his Honour was not saying that it would always be a basis for a trial by judge alone, simply because written reasons may more clearly indicate the process of reasoning. It is a factor which his Honour recognised would not always necessarily result in an order being made. Similarly, while referring to the fact that an accused wishes to forego the right to trial as a matter that is properly to be taken into account, his Honour qualified that by saying that it would not be determinative of any application for trial by judge alone.
In summary, it seems to me that what his Honour was saying was that an order for trial by judge alone may be made by a court if, taking into account the legislative policies evident from the provisions of s 118 and all matters relevant to the interests of justice, a trial by judge alone would advance or enhance the interests of justice in the particular case before the court.
The reasons of Buss JA in LFG that outline the principles on an application of this kind, and which I consider to be of particular significance for the purpose of this application, are to be found at [320], [323] ‑ [325], [336] and [337]. In my opinion, it is apparent from those reasons that Buss JA was not prepared to qualify the concept of what is 'in the interests of justice' by reference to what would 'advance or enhance the interests of justice'. The predominant consideration is that the accused will receive a fair trial according to law. The words 'in the interests of justice' contemplate the analysis and weighing of a group of factors, and no one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances of the case. The factors to be taken into account were set out by Buss JA, but his Honour made it clear that they are not exhaustive.
Essentially, the term 'interests of justice' is a broad term and should not be fettered in its construction.
Having referred to the comments of Martin CJ about the relevance of the fact that an accused is prepared to forego a trial by jury, in my opinion there is a countervailing consideration in any case where that is relied upon as a basis for an application of this kind, and that is that the participation of the community in the criminal justice system, as an aspect of our democratic society, is also a relevant factor. It is obviously not a determinative factor (none of them are, as Buss JA indicated), but it is a relevant factor, and it does have a bearing on what I will say later about the way in which the participation of the jury in this case may be regarded, in fact, as enhancing the interests of justice.
In LFG, Buss JA[6] adopted the observation of Owen JA in Coates v The State of Western Australia[7] that a jury has certain advantages in making findings of fact, which a trial judge does not have, and a trial judge has the advantage of experience in making findings of fact which a jury does not have. So, there are opposing considerations in that regard that need to be balanced.
[6] LFG v The State of Western Australia [2015] WASCA 88 [336].
[7] Coates v The State of Western Australia [2009] WASCA 142.
Buss JA, however, did recognise three scenarios where it may be in the interests of justice to order a trial by judge alone. The accused submits that they are relevant in this case. His Honour said that: [8]
It may be "in the interests of justice", within s 118(4), to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:
(a)pre-trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside (The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);
(b)the nature of some 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 (Bell v The State of Western Australia[No 2] [2014] WASC 260); and
(c)the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact (The State of Western Australia v Brown[No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147).
I will come back to each of those matters in considering the arguments that were put on behalf of the accused.
[8] LFG v The State of Western Australia [2015] WASCA 88 [337].
Finally, what is clear from the judgment of Buss JA in LFG, and, indeed, from earlier authorities, is that the party who seeks the order for trial by judge alone has the onus of persuading the court that it is in the interests of justice to make the order. The default position, if the court is not satisfied that it is in the interests of justice to make the order, is that there will be a jury trial. The way in which his Honour put it is that the section requires that:[9]
…
(b)the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury.
[9] LFG v The State of Western Australia [2015] WASCA 88 [325].
Section 118(5) and 118(6) set out factors which the legislature has identified as either favouring the making of an order (s 118(5)), or militating against the making of an order (s 118(6)). In this instance, the only factor of relevance is under s 118(5), and it is to do with the complexity of the evidence. It is relied upon by the accused. I will come back to it later.
Although the State initially suggested that there might be matters involving the application of community standards (as identified in s 118(6)) that would need determination in this case, ultimately it did not pursue that argument, because the basis upon which the accused is alleged to have caused the death of the infant does not involve the application of community standards. It is simply a question of whether she failed to provide the necessaries of life, and thereby caused the child's death. It is a matter that goes to causation, and there is no question of reasonableness.

The prosecution case

I have already indicated in the introduction the essence of the prosecution case, but I should elaborate a little further.
The State's case is that, between 1 April 2015 and 19 July 2015, the accused murdered her infant daughter, D. D was born on 7 February 2015, after a 34‑week period of gestation. She was born approximately six weeks premature. She remained in hospital until she was released into the care of the accused on 1 March 2015.
The prosecution case is that, during the accused's pregnancy and the deceased's short life, the accused made it known to various people that the pregnancy was not planned and that she did not want the child. After the child was born, she made it known to people that every time she looked at the child, she would see the child's father, with whom the accused had a fractured relationship.
It will be alleged that, during the deceased's short life, the accused was selling or disposing of baby items, including clothing and toys, on Facebook. It will be alleged that those items were either a size appropriate for the deceased at the time that they were being sold, or would have been items that the deceased would have grown into in the very near future. I note, however, that the accused has given an explanation for having done so, namely that she had an excess of those items, and did not consider that they were all necessary for the deceased.
The deceased was approximately three months of age when she was last seen alive in the care of the accused in early to mid‑May 2015. During the entirety of the deceased's life, the accused lived with her then de facto partner, Mr Kelly. He was not the biological father of any of the accused's children.
Police were notified that the deceased had not been seen in a long while on 18 July 2015. During the period from early to mid-May 2015 to 19 July 2015, the accused provided various explanations as to the location of the deceased, and those explanations have been shown to have been false. In fact, at some point, she was suggesting that the child had been taken by the Department of Child Protection, which was not true.

On 18 July 2015, police and officers from the Department of Child Protection attended the accused's house, asking to see the deceased. The deceased was not at the house. The house was considered to be in a filthy state, with animal faeces and urine throughout the house, including the children's bedrooms. There were two other children who were living at the house. The house was otherwise in a generally unclean, untidy and unkempt condition. That, of course, is part of the material on which the defence relies to suggest that there will be material before the jury which will evoke an emotional reaction, and make it difficult for the jury to arrive at an objective verdict in the matter.
The accused was arrested on 19 July 2015 as a suspect in the murder of the deceased. On that day she took part in a record of interview with the police. During that record of interview, which was quite lengthy, she made statements which indicated that she had put the baby's things in the shed. That alerted the police to the fact that the shed might have some relevance. Forensic officers searched the shed on the property occupied by the accused and found the deceased concealed in a shopping bag.
The deceased was found clothed in a nappy, wrapped in a muslin wrap in a yellow pillowcase, which was found in a silver foil bag with black handles, which had been put in a Woolworth's cooler bag. The deceased's body was in a very decomposed state. At the post-mortem examination, the forensic pathologist was not able to ascertain the cause of death due to the state of decomposition.
The opinion of the forensic pathologist is that the state of the deceased's remains are consistent with her having been in the shed, deceased, for around two months prior to being located by the police. But that is not conclusive; indeed, it is not possible to say with any precision when the child's body was put in the shed.

The issues at trial

The first issue in the trial will be causation, that is, whether the accused caused the death of the deceased, the allegation being that she did so by failing to provide the child with the necessaries of life. The issue will be whether the evidence supports the conclusion beyond reasonable doubt that the child was not provided with the necessaries of life. If there is some other inference reasonably open as to how the child may have died, the jury would not be able to find that the accused caused the death.
The other issues relate to:
(a) the accused's conduct after she found the baby deceased, notably the fact that she concealed the baby in the way that I have described, within a bag in the shed;
(b)the statements that were made by the accused, which were found to be false, about where the baby was;
(c)the statements the accused made in her interview.
As I said, the State alleges that the accused admitted, during the course of the interview, that she starved the baby, and the inference that it will be asking the jury to draw from the statements made by the accused during the interview is that she did so deliberately, because she did not want the baby. Having read the transcript of the interview, I consider there might be some doubt about whether the statements made by the accused are capable of being regarded in that way, but that will obviously be a matter for the jury. The interview is part of what will be affected by the evidence which the defence intends to adduce about the accused's state of mind at that time.
On the question of causation, the defence intends to adduce evidence from a consultant paediatrician, Professor Jones, who, in a report dated 30 August 2016, suggests that the remains of the deceased may have been consistent, in fact, with a child of the age of the deceased at the time that she went missing who had been provided with adequate sustenance. Professor Jones suggests that an alternative explanation for the child's death may be 'SIDS' (Sudden Infant Death Syndrome), or 'SUDI' (Sudden Unexpected Death in Infancy). It does not really matter for the purpose of this application whether there is any difference between those two concepts. Professor Jones would not be permitted to give evidence of how the child died. That ultimately remains the subject of the finding of the forensic pathologist, that it was unascertained. However, Professor Jones can provide evidence of possible causes of death of a child of the age of the deceased other than that the child was not provided with adequate sustenance.
The evidence of Professor Skerritt and Dr Greg Dear go to the accused's state of mind at the time. Both have concluded that she was suffering from depression. They so concluded from her own statements to them, which she would need to give in evidence, if they are to be relied upon, and from what other people around her were observing at the time. Dr Dear also concludes that the accused was likely suffering from a borderline personality disorder. Without going into the detail of the evidence that would be given by those two experts, it is sufficient to say that they raise questions about whether false statements made by the accused could properly be relied upon as indicative of guilt (that is, that she lied out of a consciousness of guilt), and whether, in her statements to the police, she was, in fact, admitting having killed the child and having done so deliberately.
One of the matters that Dr Dear suggests may be an explanation for the accused's conduct ‑ it will, of course, be a matter for the jury as to what they make of it ‑ is that, because of her depression and her borderline personality disorder, she was someone who may have been inclined to take upon herself responsibility for the death of the child and to have felt shame, and to have sought to conceal the body of the deceased for those reasons.
In respect of that evidence, the accused's argument on this application is that the evidence is somewhat technical. With respect, I disagree. It seems to me that it is fairly simple. It can be stated fairly simply in the way that I have just done, and there should be no difficulty for a jury to understand those concepts. Similarly, in relation to the evidence of Professor Jones, it seems to me that there is nothing particularly complicated about the concepts that he speaks about. It seems to me that the question of what is consistent, in terms of the growth of a child, with the child having been given sufficient sustenance, is not something that would pose any difficulty for a jury to understand.
The more specific argument in relation to this evidence is that a jury will be distracted from properly considering that evidence and its significance in informing the issues of causation and the accused's post‑offence conduct, because of the emotional reaction that the jury may have to the other material.

Prejudice from nature of charge and graphic material

The essence of the accused's argument, putting it back in terms of the principles discussed in LFG, is that there is a real and substantial risk that ordinary members of the community sitting on a jury in this trial will be distracted from their task of determining the critical issues of causation, the significance of the accused's statements and conduct after the baby died, as well as what she said to the police, by their emotional reaction to a number of matters.
Those matters are:
(1)the very fact that the accused is alleged to have killed her baby;
(2)the way in which the accused dealt with her baby's body in placing it in a bag and hiding it in the shed. This is said to be conduct that will be regarded as disrespectful and abhorrent by right-minded persons, and would create prejudice against the accused that would make it difficult for a jury to approach their consideration of the issues in the trial objectively;
(3)the fact that the baby's body had decomposed and the accused had allowed that to happen. It was submitted those facts would exacerbate the adverse feelings and the obstacle to objective consideration of the evidence; and
(4)the squalid state of the house, which put the wellbeing of the other two children at risk. It was submitted that the fact the accused would have her children living in those conditions would also create prejudice against her.
The accused's counsel contended that some of these matters, for instance, the state of the decomposition of the baby's body and the state of the accused's house, fall into the category of evidence of such a graphic and disturbing nature that the jury may be unable to consider its relevance and significance. Her submission is that a judge would be better able to put aside the emotive content of the evidence, and properly consider the relevance and significance of the evidence, including the expert evidence to be adduced in respect of causation and the accused's state of mind. The accused submits that the interests of justice would be advanced or enhanced in that way.
In my opinion, the nature of the evidence that is intended to be adduced by the prosecution falls well short of the kind of graphic and disturbing evidence that, in the past, has been regarded as giving rise to a real concern about whether a jury could properly consider the evidence without prejudice.
During the course of the hearing, the prosecutor indicated the way in which evidence of the forensic examination of the deceased's body would be led, and the way in which the opinion of the forensic pathologist would be adduced concerning why he could not ascertain a cause of death. It will be sufficient for the forensic pathologist to refer to the fact that the body was so decomposed that it was not possible to ascertain the cause of death. It will not be necessary for the forensic pathologist to go into the details of the decomposition, which, I accept, if they were necessary, might cause some disturbance to ordinary people, although the kinds of matters that he refers to are matters that probably are now relatively well‑known within the community, for instance, in respect of how the timing of death might be determined by infestation.
In any event, it seems to me, in light of the way in which the prosecution says that evidence will be led, the evidence will not be of such a kind as to engender an emotional reaction from the jury that would make it difficult for it to consider the evidence properly and objectively. Nor do I consider that the matters concerning the state of the house are of the kind that would cause that sort of difficulty for the jury.
Finally, the question of whether a jury may have difficulty in being objective, simply because the accused is a mother who is accused of having killed her child, needs to be considered against a background of cases in the past where parents have been charged and prosecuted in trials before juries for killing their child, sometimes an infant child. Also, as the prosecutor pointed out, there are cases before juries all the time that involve horrific allegations of abuse towards children by parents, usually sexual abuse, but those cases continue to be determined by juries, because it is accepted that they can put aside any feelings of abhorrence and consider the matter objectively.
In any event, I am not persuaded that the nature of the evidence in the respects I have discussed is such as to make it in the interests of justice to order a trial by a judge alone.

Expert evidence

So far as the expert evidence is concerned, the accused does not suggest that the jury will not be able to understand the evidence. The accused's proposition, consistently with what was said by Buss JA in LFG at [337], is that the applicant for a trial by judge alone does not have to establish that a jury would not be capable of understanding the expert evidence, or putting aside prejudice, or properly considering the relevance and significance of evidence. It is sufficient for the applicant to satisfy the court that a jury may be hindered in its tasks in a way that a judge would not, in other words, that a jury may be unable to put aside prejudice, or may be unable to properly consider the relevance and significance of evidence, or may have difficulty properly understanding the expert evidence.
I accept that it is the possibility of those things that has to be weighed against factors that may favour a trial by jury. Consistently with what I said earlier about the legal principles, I do not think that the fact a judge has a better capacity to perform the fact-finding task in any of those specified ways necessarily means that a trial by judge alone is in the interests of justice in the circumstances of this case. There are other considerations to which I have already adverted.
As was recognised by Owen JA in Coates, a jury has certain advantages in making findings of fact which a trial judge does not have. The most obvious advantage is the combination and confluence of a variety of life experiences that jurors bring to the assessment of evidence concerning human behaviour, and the finding of facts that depend on such assessments. The expert evidence in this case concerning the accused's state of mind cannot answer the question of what she was thinking, let alone what she did. It can only inform the possibilities that may have existed, having regard to her depression and personality disorder. It would be an uncharitable and, in my respectful opinion, inaccurate characterisation of the jury system to suggest that, from a random selection of members of the community, there would not be people with experience of the issues that will be canvassed by the experts. Indeed, the experiences may be varied.
In my opinion, the evidence proposed to be called in this case is not of the kind discussed in Hone v The State of Western Australia,[10] which was referred to by the accused's counsel during argument, or, indeed, in other cases involving the insanity defence, where there is a risk that finders of fact may approach the task of understanding the behaviour of a person suffering from a mental illness, especially a psychotic state, from the perspective of someone of sound mind, rather than from the perspective of someone with a disordered mind. The principle underpinning such discussion in those cases is primarily concerned with the importance of giving proper weight to expert evidence that is not contradicted about such matters.
[10] Hone v The State of Western Australia [2007] WASCA 283.
I am not persuaded that the expert evidence in this case is of such a nature that there is a substantial risk that the jury would have difficulty in understanding it, or would not give it proper weight. In my opinion, the proper consideration of that evidence in the context of the observed behaviour of the accused and her statements may well be enhanced by the application of the collective experiences of members of the community of different ages and from different walks of life.

Adverse publicity

Finally, I come back to the ground that relies on adverse publicity. More correctly, it seems to me that it is a ground that suggested that the accused would not or may not get a fair trial in Geraldton, because of the fact that there were persons who had posted comments on the 'Everything Geraldton' website, when a story in relation to this case appeared, which suggested that they had prejudged the guilt of the accused, or felt a significant degree of hostility and prejudice towards her. The relevant commentaries occurred on 29 July 2015 and 28 January 2016. On each occasion, it would appear that the commentaries were associated with the appearance of the accused in court. There were other comments that were neutral or suggested that the accused should be given the opportunity of a fair trial. The numbers of negative comments as against those that were either neutral or perhaps positive are set out in Mr Arndt's affidavit.[11]
[11] Affidavit of Ryan Peter Arndt in relation to Facebook posts and media reports in relation to this matter dated 5 October 2016 [15] - [20].
There is no doubt, having looked at the comments that are relied on as negative comments, that some of them are quite disturbing in the degree of hostility that they demonstrate. Despite the passage of time, one might have thought that some of those people might still have the negative views that they did then. However, there are two matters that have occurred or will occur which, it seems to me, will neutralise the concern that existed when the application was first made, when this particular ground was first relied on. The first is that the trial has now been shifted to Perth, and the risk that any of those persons who may have posted those comments would be part of the jury pool is either small or non-existent, although I recognise that one cannot say with any certainty where those who made those comments were located. Further, a jury list will be made available to the parties for the purpose of the parties being able to exercise the right of challenge, and it will be possible for the parties to compare the names of those who posted comments, whether negative or positive, against the names on the jury list, and if a particular name was identified, that would no doubt be a matter that would be brought to the attention of the judge for consideration of standing the juror aside.

Directions will be given to the jury

A matter that was very clearly recognised in LFG was the fact that the system relies on juries obeying and giving effect to the directions of trial judges, particularly in respect of matters of prejudice. Strong directions would no doubt be given to the jury in this case in respect of matters of prejudice. First, they will be directed to put aside anything they have heard previously about the case. They will be told at the outset that if they have heard anything about the case they should make that known to the judge, because it may affect their ability to participate in the trial if they do not consider that they can be objective about it. In terms of other material in the trial that has been relied upon as potentially giving rise to prejudice, the jury will be directed that they must consider the matter objectively and to put aside any feelings or emotions in relation to the matter. The jury can be expected to give effect to those directions.

Conclusion

In my opinion, all of the matters that the accused relies on in support of the application are matters that can be dealt with as I have described, and they do not support the conclusion that a jury would have difficulty in objectively considering the case and properly understanding the evidence that is to be adduced. When regard is also had to the matters that I have referred to that may result in enhancement of the interests of justice by the contribution of the experiences of members of the community to the assessment of the accused's behaviour in this case, it has not been demonstrated, in my opinion, that it is in the interests of justice to have a trial by judge alone.
Therefore, the application will be refused, and the accused will be remanded in custody for her trial to commence on 1 December 2016.