Western Australia v Edwards
[2018] WASC 419
•30 APRIL 2019
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 are referred to the extent necessary to explain why the State's application has been granted. References to pre-trial publicity are references to the whole of the evidence contained in Ms Bowman's affidavit. It is convenient to adopt the State's description, the 'Claremont Series', to refer to the events that are the subject of the charges of murder alleged against the respondent.
The State also relied on a summary of the material facts alleged for each charge. It is not necessary to set out those facts. However, I note that:
(a)Counts 1 and 2 (breaking and entering with intent and deprivation of liberty) concern events that allegedly occurred on 15 February 1988 in a house located in Huntingdale. The State's proposed case includes an allegation that the offences were part of a series of uncharged offences committed in late 1987 and 1988 by a prowler in the Huntingdale area.
(b)Counts 3 to 5 (deprivation of liberty and two counts of sexual penetration) concern events that allegedly occurred early in the morning of 12 February 1995 at Rowe Park, Claremont and Karrakatta Cemetery. The complainant had been at the Club Bay View nightclub in Claremont prior to being attacked.
(c)Counts 6 to 8 concern the alleged murders of Sarah Spiers (whose body has not been found), Jane Rimmer and Ciara Glennon. Ms Spiers disappeared on 27 January 1996 after she had been at Club Bay View. The State alleges that Ms Rimmer was murdered early in the morning of 9 June 1996 after she had been out in Claremont. The State further alleges that Ms Glennon was murdered early in the morning of 15 March 1997 after she had been out in Claremont.
(d)The State's case on each count is circumstantial. DNA evidence is a significant part of the State's case on each count except count 6. Fibre evidence is an important aspect of the State's case on count 7. There will be issues concerning the cross-admissibility of evidence on the different counts alleged against the respondent.
The State submitted that it was in the interest of justice that an order for trial by judge alone be made having regard to:
(a)the extent of pre-trial publicity;
(b)the likely length of the trial;
(c)the graphic or disturbing nature of the evidence to be adduced;
(d)the technical or complex nature of expert evidence proposed to be presented in the trial.
The respondent provided written submissions on the application. He accepted that the matters identified by the State supported a view that it was in the interests of justice to order a trial by judge alone (recognising that it was for the court rather than the parties to determine where the interests of justice lay). He also stated that he was unaware of any factor that would militate against the making of an order under s 118 of the CPA.
The power to order trial by judge alone
Section 118 of the CPA provides that:
(1)If an accused is committed on a charge to a superior court or indicted in the 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 be burdensome to a jury; or
(b)That it is likely that acts 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.
(7)If an accused is charged with two or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If two or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also make such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judges known to the parties.
The principles to be applied in determining whether an order should be made under s 118 were recently summarised by the Court of Appeal in Steele v The State of Western Australia.[1] The summary was taken from the reasons of Buss JA (as his Honour then was) in LFG v The State of Western Australia.[2] The Court of Appeal identified the following principles:
(a)Neither the prosecutor nor the accused has a right to elect a trial by judge alone.
(b)The court must be affirmatively satisfied that it is in the interests of justice to make an order under s 118. That requires the court to undertake a process of evaluation to ascertain where the interests of justice lie.
(c)The expression 'in the interests of justice' includes not only the interests of the parties but also the public interest. There is a public interest in maintaining the proper functioning and integrity of the criminal justice system as administered by the courts.
(d)It is apparent from s 118(5) of the CPA that the legitimate interests of jurors is an aspect of the public interest that is encompassed by the concept of 'in the interests of justice'.
(e)The requirement that an accused person receive a fair trial according to law is fundamental to the application of s 118. It will be in the interests of justice to order a trial by judge alone if the order is necessary to ensure the accused receives a fair trial according to law.
(f)An order for trial by judge alone will be necessary if there is a real and substantial (as distinct from a remote) doubt about whether, in the particular case, the accused will receive a fair trial according to law by or before a jury.
[1] Steele v The State of Western Australia [2018] WASCA 133 [11].
[2] LFG v The State of Western Australia [2015] WASCA 88. Mazza JA agreed with the reasons of Buss JA.
As Buss JA emphasised in LFG, whether it is in the interests of justice to make an order under s 118 of the CPA must necessarily be determined according to the particular circumstances of the case. However, his Honour observed in LFG:
It may be 'in the interests of justice', within s 118(4), to order a trial by 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 the 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 as 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).
See also, for example, the facts in Arthurs v The State of Western Australia [2007] WASC 182 and Schmidt v The State of Western Australia [No 3] [2014] WASC 156.[3]
[3] LFG v The State of Western Australia [337].
The fact that the ordinary mode of trial on indictment is a trial by a judge and jury, and that this is the mode of trial unless the court makes an order under s 118(1), provides part of the context within which s 118 of the CPA is to be interpreted and applied. However, the section is concerned with the interests of justice; it requires a process of evaluation to determine where the interests of justice lie. A jury has certain advantages in fact finding that a trial judge does not have and a trial judge has the advantage of experience in making findings of fact that a jury does not possess. It is necessary to balance those competing considerations.[4] An order should be made pursuant to s 118 if the court is positively satisfied that, in a particular case, it is in the interests of justice for the accused to be tried by judge alone.
[4] LFG v The State of Western Australia [336] (Buss JA citing Owen J in Coates v The State of Western Australia [2009] WASCA 142).
The factors identified by the State
Pre-trial publicity
The State described the pre-trial publicity as 'unprecedented'. Whether that emphatic description is historically accurate is not to the point. What is obvious from Ms Bowman's affidavit is that the Claremont Series generated publicity that was:
(a)extensive and pervasive – the publicity was across all forms of public media: print, broadcast, online news publications and social media;
(b)enduring – the events forming the Claremont Series did not fade from public memory with the passage of time and they remained the subject of ongoing media and public attention and concern;
(c)often speculative – various factors contributed to the speculative nature of much of the pre-trial publicity, including publicity given to different lines of police inquiry, the proliferation of social media in the intervening years and the time between the relevant events and the arrest of the respondent;
(d)(understandably) sympathetic to the grief experienced by the families of Ms Spiers, Ms Rimmer and Ms Glennon.
Certain aspects of the pre‑trial publicity should be further noted in light of the issues raised on the indictment.[5] First, most of the pre‑trial publicity assumed that each victim had been unlawfully killed.
[5] As noted, the respondent has been arraigned and pleaded not guilty to each count in the indictment. He had not made any admission or concession for the purpose of the trial at the time that the State's application was heard and determined (and, of course, he is not required to make any admission or concession prior to or at trial).
Second, much of the pre‑trial publicity assumed that the same person was implicated in the death of each victim. That was most obviously indicated by the use of the expression 'the Claremont serial killer'. The expression has obviously prejudicial connotations. Further, the expression is so ubiquitous that it has become an immediately recognisable means of denoting the events that are the subject of the charges alleged against the respondent. Publicity prior to the respondent's arrest was to the effect that the police were looking for the Claremont serial killer; publicity since the respondent's arrest suggested the police had charged the Claremont serial killer and the same person had been responsible for other offences. Some of the publicity since the respondent's arrest conveyed the impression that the police had finally caught 'the Claremont serial killer' after many years of investigation.
Third, the pre‑trial publicity incorporated much speculation about matters that may be relevant, or may be wrongly perceived to be relevant, to the events that are the subject of the charges and the prosecution of the charges – for example, the identity of persons who might be implicated in the events and possible connections between the events and other alleged crimes; police enquiries and the focus of investigations and reviews conducted by the police; what evidence might be relevant to the charges alleged by the State; and the personal circumstances of the respondent. Numerous items have appeared in print and other forms of news media speculating on connections between the Claremont Series and other events that have been characterised as either 'unsolved crimes' or 'mysterious disappearances'. Many social media postings have speculated about either aspects of the police investigation or the evidence supposedly available to the State.
In The State of Western Australia v Wark, Pritchard J observed:
Insofar as there was evidence of speculation within internet discussion groups about this case, in my view considerable care needs to be taken in assessing the potential prejudice of publicity from such sources. There is a significant distinction between information available to the public through major news outlets, whether in print or online, and the views that may be expressed by much smaller groups of people in such online discussion forums. It cannot be assumed that the latter represent information or views which have become entrenched in the public consciousness, or be likely to create such an atmosphere of pervading prejudice against an accused person as to give rise to the risk of an unfair trial which could be ameliorated by a detailed and emphatic warning by a trial judge.[6]
Where the prejudicial pre‑trial publicity is confined to material located on internet websites such as blogs and discussion fora, especially if those sites or fora can only be located by an internet search for that information, it will in my view be difficult to establish a real risk of the prejudice of an unfair trial. In my view, members of the community can be assumed to be quite discerning about the veracity and reliability of information which may be obtained from sites of that nature, and thus will be more likely to appreciate the importance of the trial directions given by trial judges concerning the importance of relying only on the evidence actually adduced at the trial. In my view, that would be so even though information from sites of that nature may be shared through other avenues with people who do not seek it out, for instance, by posting links to such websites to facebook accounts.
[6] The State of Western Australia v Wark [2017] WASC 154 [131] – [132].
I agree with those observations. However, much of the pre-trial publicity in this case consisted of items published or broadcast in 'the major news outlets'. Further, some preconceptions and speculations have been so widely and repeatedly disseminated through all media forums over the many years since the Claremont Series that there is a real risk that they have permeated the public consciousness in a way that cannot be adequately addressed by directions to a jury.
Prior to the enactment of s 118 of the CPA, an accused person who feared that publicity might prejudice a fair trial could only apply to stay a prosecution or adjourn a trial. There is, of course, a public interest in the prosecution of a charge to a verdict. In determining an application for a stay or an adjournment, the law proceeds on the basis that a jury will receive and follow a direction to ignore any publicity or preconceived ideas and to deliver a verdict based solely on the evidence consistent with the juror's oath or affirmation. The law necessarily relies on the integrity and sense of duty of jurors.[7]
[7] R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 614 (Brennan J).
Those considerations remain relevant to an application under s 118 of the CPA. However, as McKechnie J observed in TVM v The State of Western Australia:
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.[8]
[8] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29].
I agree that ordinarily the possibility of prejudice caused by publicity can be dispelled by appropriate directions to a jury. However, there is a real and substantial doubt in this case that any direction could overcome the 'lingering prejudice' that might be caused to the respondent by the pre-trial publicity having regard to the duration, extent and nature of the publicity, including the use of the expression 'the Claremont serial killer' to refer to the Claremont series. The expression is both evocative and prejudicial.
The conclusion I have reached should not be interpreted as a criticism of the media coverage of the Claremont Series and related events. The media plays an essential role in maintaining public confidence in, and the integrity of, an open system of justice. Likewise, the determination of this application does not reflect a lack of confidence in the ability of jurors to abide by their oath or affirmation to deliver a true verdict according to the evidence. However, in the very particular circumstances of this case there is, in my view, a real risk that the pre-trial publicity has framed the Claremont series and related events in ways that cannot be adequately addressed by a combination of a trial judge's directions and the juror's oath. I consider that the State's submissions accurately summarised the effect of the pre-trial publicity:
The case has both engrossed and distressed members of Perth and Western Australia like no other. It forms part of the public consciousness. It is therefore reasonable to assume that many in the community, including potential jurors, have a yearning to see a resolution to this matter; and a corresponding anticipation that the accused is the perpetrator of the Claremont Series. Consequently, there is a real risk the jurors may, even unconsciously, approach their tasks with prejudgment, influenced by preconceived feelings, beliefs and desires, notwithstanding the strong directions of the trial judge.[9]
[9] State's outline of submissions dated 11 September 2018, par 31(c).
The length of the trial
The estimated length of the trial is nine months. Contrary to some media accounts, that estimate does not mean that the trial of the charges alleged against the respondent will be the longest criminal trial conducted in this jurisdiction.[10]
[10] The trial of charges of conspiring to defraud the public alleged against two directors and the auditor of Rothwells Ltd was conducted before a jury for over about 14 months in 1995 - 1996.
Jury trials are a fundamental aspect of the criminal justice system. The importance Parliament places on jury service is reflected in the provisions of the Juries Act 1957 (WA). The Act contains only limited exceptions to the duty owed by members of the community to serve on juries. However, that does not mean that judges are required to be indifferent to the burden that would be imposed by jury service in a very long trial. That is especially where, as in this case, there are other good reasons for concluding that it is in the interests of justice to order a trial by judge alone.
Further, I accept the State's submission that the greater length of the trial, the greater the risk of a mistrial and the greater the consequences that would flow from a mistrial.[11] That is particularly where the nature and extent of pre‑trial publicity could represent a continuing temptation to prospective jurors to access such material notwithstanding a direction prohibiting independent enquiry. That risk would be magnified by the avalanche of publicity that will no doubt be generated by the trial.
[11] State's outline of submissions, par 33(c).
Moreover, the interest in this case is such that jurors might well feel the weight of a public expectation that would add considerably to the burden of discharging their duty and it is very likely that they would be placed under pressure throughout the trial to discuss the evidence and the jury's impressions to curious family members, friends and acquaintances. In the circumstances of this case, it would be unreal to ignore those possibilities.[12]
[12] State's outline of submissions, par 33(b).
The nature of the evidence to be adduced at trial
The State foreshadowed that it will seek to produce video and photographic evidence of the decomposed bodies of Ms Rimmer and Ms Glennon in situ as well as visual material from their post mortem examinations. In most homicide trials, visual material of that kind is unnecessary to the case of either party. However, the State has identified a number of grounds upon which it contends that material of this type will be relevant to the prosecution of the charges of murder alleged against the respondent. The relevance of the material will be a matter for the trial judge. However, without prejudging any decision to be made at trial, in my view it cannot be concluded that the State's submissions on the relevance of the material are so devoid of merit that the possibility that graphic and disturbing post mortem evidence might be adduced at trial can be discounted.
It has not been necessary to review the material that the State proposes to present. I accept that the characterisation of the material as 'particularly graphic and disturbing' and 'so upsetting to some jurors that they may be unable to objectively consider the relevance and significance of [what] these exhibits depict'[13] is accurate having regard to the obligations owed by the prosecutor to the court in making this application.
[13] State's outline of submissions, par 37.
It is well recognised that jurors have become more inured to the impact of graphic visual material as a result of the frequent portrayal of violence and death in film and television. It is unlikely that this ground, considered by itself, would justify an order for trial by judge alone. However, the State's description of the material adds weight to the conclusion that it is in the interests of justice to make an order under s 118 of the CPA.
The technical or complex nature of the expert evidence
The State also foreshadowed that it will present fibre and DNA evidence which, although commonplace in jury trials, has a particular complexity in this instance. Continuity evidence regarding a very large number of fibres recovered from various sources is described by the State as being 'particularly convoluted' and 'will be the subject of many charts and documents which are difficult to follow, even for those familiar with the various processes involved'.[14] Further, expert evidence regarding the recovery of the fibres and their analysis will be intricate and complex. Similarly, the DNA evidence involves what is referred to as 'low template DNA'. It is said that evidence of that kind is inherently more complicated for a jury to grasp.[15]
[14] State's outline of submissions, par 40(a).
[15] State's outline of submissions, par 40(b).
The State rightly concedes that it cannot be concluded that a jury could not understand the DNA and other forensic evidence but attributing appropriate weight in the context of a circumstantial case, and the drawing of inferences from the evidence, will add a further layer of complexity to the fact-finding process. Again, this factor, viewed in isolation, might not be a sufficient basis for concluding that there is a real risk that the respondent would not receive a fair trial according to law if an order was not made for trial by judge alone. However, as with the graphic nature of the foreshadowed post mortem evidence, the likely complexity of expert and forensic evidence to be presented in the trial reinforces the conclusion that the trial of the charges alleged against the respondent should be by judge alone.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy30 APRIL 2019
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