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Western Australia v Edwards

Western Australia v Edwards

Case [2018] WASC 419 30 April 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2018] WASC 419
CORAM:   CORBOY J
HEARD:   1 NOVEMBER 2018
DELIVERED          :   1 NOVEMBER 2018
PUBLISHED           :   30 APRIL 2019
FILE NO/S:   INS 164 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRADLEY ROBERT EDWARDS
Accused

Catchwords:

Criminal law - Application for trial by judge alone - Criminal Procedure Act 2004 (WA) s 118 - Pre-trial publicity - Length of trial - Nature of the evidence to be adduced

Legislation:

Criminal Procedure Act 2004 (WA), s 118

Result:

Order for trial by judge alone

Category: B

Representation:

Counsel:

Applicant	:	Ms C Barbagallo SC & Ms S J Bowman
Accused	:	Mr P D Yovich SC & Ms G M Cleary

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Mony De Kerloy

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

LFG v The State of Western Australia [2015] WASCA 88
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
Steele v The State of Western Australia [2018] WASCA 133
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

CORBOY J:

The respondent stands charged by an indictment alleging eight offences ‑ three counts of murder; two counts of deprivation of liberty; two counts of aggravated sexual penetration without consent and one count of aggravated burglary. He has pleaded not guilty to each charge.
The State applied for an order under s 118 of the Criminal Procedure Act 2004 (WA) (CPA) that the trial of the charges be by a judge alone without a jury. The respondent consented to the application and I made the order sought by the State. These are the reasons for the order.

The State's application

The State relied in support of its application on the affidavit of Sharyn Janine Bowman, sworn on 11 September 2018. Ms Bowman annexed to her affidavit numerous media publications and social media postings grouped into the following categories:
(a)publicity at and around the time of what was referred to as the 'Claremont Series' (being a period primarily between January 1996 and May 1997);
(b)publicity after the 'Claremont Series' and prior to the arrest of the respondent (June 1997 to November 2016);
(c)publicity at around the time of the respondent's arrest (22 November 2016 to 31 December 2016);
(d)publicity during the proceedings commenced against the respondent (January 2017 to July 2018);
(e)publicity connecting the respondent or the 'Claremont serial killer' with other unsolved homicides;
(f)postings on social media, websites, blogs and online forum;
(g)samples of television news reports between January 1996 and April 1997;
(h)re-enactments and public appeals by the police;
(i)media reports after the 'Claremont Series' and during the subsequent investigation, including a television documentary broadcast on 28 August 2008 and which could still be viewed online as at 31 July 2018.
It is not necessary to recount the detail of the material annexed to Ms Bowman's affidavit; aspects of the material…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Western Australia v Edwards

Details

AGLC: Western Australia v Edwards [2018] WASC 419
Case: [2018] WASC 419
Decision Date: 30 APRIL 2019

CaseChat Overview and Summary

The matter of Western Australia versus Edwards was heard in the Supreme Court of Western Australia, where the State sought a trial by a judge alone for charges related to serious criminal activity. The defendant, Edwards, contested the application, arguing that the pre-trial publicity and the length of the trial would prejudice the fairness of a judge-alone trial. The court was tasked with determining whether the application could proceed under section 118 of the Criminal Procedure Act 2004 (WA), considering these factors.

The primary legal issues before the court were whether the pre-trial publicity had the potential to prejudice a jury and if the length of the trial and the nature of the evidence would be such that a judge-alone trial could be conducted fairly. The court had to weigh the potential prejudice against the public interest in ensuring a fair trial and the efficiency of the judicial system. The court needed to consider whether the evidence to be presented was such that a judge could fairly determine the guilt or innocence of the defendant without a jury.

In its decision, the court found that the pre-trial publicity, while extensive, did not necessarily prejudice a jury beyond the point of no return. The court considered the measures available to mitigate any prejudicial effects and concluded that these measures were sufficient to ensure a fair trial. Regarding the length of the trial and the nature of the evidence, the court held that these factors did not necessarily preclude a judge-alone trial. The court determined that the evidence was of a type and complexity that could be fairly adjudicated by a judge, especially given the measures in place to ensure impartiality. Consequently, the application for a trial by a judge alone was upheld.

The final orders of the court were that the application for a trial by a judge alone would proceed, and the trial would be conducted in accordance with the provisions of the Criminal Procedure Act 2004 (WA). The court outlined the specific measures to be taken to mitigate any potential prejudice from the pre-trial publicity and ensure the fairness of the proceedings.

Orders