Alameddine v R

The Trial Judge's Reasons

1. After recounting the background to the application, the trial judge addressed and rejected the contention that, as a matter of statutory construction, a grant of leave was not required under s 132A where the Crown consented to the making of an order under s 132(2). In doing so his Honour noted the rationale for the s 132A being to avoid both the appearance and reality of judge shopping. His Honour observed that it was "a foundational requirement that … applications [for an order for a trial by judge alone] are to be made in advance of the date fixed for the trial so as to avoid any suggestion or appearance of forum or judge shopping" before "hasten[ing] to acknowledge that [the] Crown and indeed the parties agree and concede in respect of each other that this [is] not the case in the present trial."
2. The trial judge noted that in R v Jenkin [2018] NSWSC 634 ("Jenkin"), Hamill J confirmed his earlier remarks in R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 ("Simmons (No 4)"), in which his Honour considered the explanation for the timing of an application in determining whether to grant leave under s 132A. However, the trial judge said that there was a "significant difference" between Jenkin and this case in that his Honour found the explanation for the late application in this case was "straightforward and unpersuasive". His Honour noted that Hamdi's application was prevented by an "historical obstacle" being Rafat's prevarication. His Honour noted that Rafat had been prevaricating and that "seems to have sometimes hinged on an inability … to not [be] able to have a face to face or in person conference with his preferred senior counsel." His Honour considered that "some acceptable alternative could have been reached to facilitate a timely decision being made". His Honour then stated: "One might have thought with a trial date having been fixed over a year ago, that an earlier definitive decision based on, if necessary alternatives and/or moulded arrangements to interact and make a final decision as to seeking a trial by judge alone would have been at the forefront of the Accused's consideration, particularly being mindful of the time limitations to which I've referred and fast approaching trial date, juxtaposed with the opposite view, that is apparent agreement by his co‑accused. It seems to me that these factors weigh emphatically on any decision being taken by the Accused to seek a trial by judge order be made in compliance with the statutory time limit. I add that in parallel I also appreciate that Mr Hamdi Alameddine, albeit late with his application, has otherwise been caught up by the prevarication of [his cousin]. … I appreciate it and accept that Mr Hamdi Alameddine had given a formal indication earlier albeit still not the requisite 'not less than 28 days before the date fixed for the trial.' With the greatest respect to all involved, I would have thought close liaison between the co-accused and their respective legal teams should have and/or could have reached a timely agreed stance on the proposed application rather than us now be faced with this late application in the circumstances." (emphasis added)
3. His Honour then noted that there had been reference made to the potential prejudice to the applicants from the refusal of leave. His Honour found that any such prejudice could be cured by directions to the jury to ignore prejudicial publicity. This appears to be a reference to the material annexed to Mr Saddik's affidavit noted above.

Sections 132, 132A and "Judge Shopping"

1. Sections 132 and 132A of the Criminal Procedure Act provide: "132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. 132A Applications for trial by judge alone in criminal proceedings (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless - (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. (3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury. (4) Rules of court may be made with respect to applications under section 132 or this section."
2. Three matters should be noted about these provisions
3. The first matter concerns the significance of an explanation for a late application under s 132A to dispelling the appearance of judge shopping. As noted by Hamill J in Simmons (No 4) at [21], in the second reading speech for the Bill introducing s 132A the Attorney General stated: "The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge." (emphasis added)
4. This statement reflects the observation by Gleeson CJ in R v Perry (1993) 29 NSWLR 589 at 594 about the rationale for the predecessor to s 132A: "One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes some way towards eliminating such appearances if elections have to be made before the trial date." (emphasis added)
5. In Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Basten JA cited this passage (at [12]). His Honour added (at [13]) that: "Modern case management procedures will often mean, as Hamill J noted [in Simmons (No 4) at [19]-[22]] that the identity of the trial judge will be known well before the commencement of the 28 day period. Nevertheless, where the matter is left to the last moment, it may be inappropriate for the prosecutor simply to consent to a grant of leave in circumstances where, as in the present case, no explanation was proffered as to why the matter could not have been raised earlier." (emphasis added)
6. The form of explanation to which Basten JA was referring is an explanation that, at the very least, addresses the "appearance" of judge shopping. Implicit in both of the above passages is that such an appearance can be dispelled by the provision (and acceptance) of an explanation for the delay being an explanation that discloses some reason(s) for making the application, other than "knowing the identity of the trial judge"; i.e., the appearance of judge shopping does not survive the acceptance of the explanation. Hence, in R v Dawson [2022] NSWSC 552 leave was granted to an accused under s 132A to apply for a judge alone trial within 28 days of the trial date. The identity of the trial judge had been known to both the Crown and the accused for a substantial period of time, however it was clear that the fact and timing of the application was dictated by the outcome of an application for a permanent stay (at [8]). The explanation that was given and accepted dispelled the suggestion of judge shopping (see also R v Quami & Ors (No 14) [2016] NSWSC 274 at [8] to [18]).
7. In Simmons (No 4) Hamill J heard and granted an application for a judge alone trial after his Honour commenced hearing and deciding pre-trial issues. His Honour noted that the fact that he was the trial judge had been known to the parties for months so there was no suggestion that the parties made the application as a result of discovering the identity of the trial judge (at [22]). Further, his Honour considered but rejected the possibility that the parties had nevertheless based their decision to seek a judge alone trial because of decisions that he had already made, which, if it had been, would be tantamount to judge shopping (at [23] to [31]). Again, implicit in his Honour's approach is that an acceptance of an explanation for the fact and timing of the application which does not involve any form of judge shopping was sufficient to dispel the "appearance" of judge shopping.
8. Concerns about judge shopping can be addressed by the parties in their explanations to the Court but also by the procedures adopted by the courts. Sections 132 and 132A concern trials on indictment which take place in either the Supreme Court or the District Court. Both between and within those Courts different allocation and listing systems apply. As noted by Hamill J in Simmons (No 4), trials in the Supreme Court, judges are commonly allocated to a judge more than 28 days prior to the allocated date for the hearing. However, allocations are not fixed in stone. Applications for judge alone trials in the Supreme Court are commonly heard by a judge other than the judge allocated to hear the matter. If during or following a (successful) application for a judge alone trial there remains a concern about at least the appearance of judge shopping then, if possible, the matter can be allocated elsewhere. A submission to that very effect was made by senior counsel for Hamdi before the trial judge in this case. In announcing the above orders on 23 September 2022, the Court stated that the selection of the trial judge to hear this matter is a matter exclusively for the District Court.
9. The second matter is the issue of statutory construction raised before the trial judge and reagitated on appeal. A consideration of both the text and purpose of s 132A supports the trial judge's construction. Section 132(2) is not a free-standing power. Instead, ss 132(2) to 132(6) direct the manner in which the Court addresses an application made under s 132(1). Section 132A(1) is addressed to "[a]n application for an order under section 132" which includes the circumstances in which an order is made as contemplated by s 132(2). Moreover, s 132(7) confers a power on the Court to make an order in circumstances in which there is a risk of a commission of an offence involving an interference with a witness, judge or juror (found within Div 3 of Pt 7 of the Crimes Act). It expressly operates "despite" s 132A. No such express words are included in s 132(2). As cases like this illustrate, a concern about the appearance of judge shopping may exist even if the Crown consents to a judge alone application. In those cases, the explanation for the late application may not dispel that concern. In such cases, and subject to the next matter, a court might refuse the grant of leave under s 132A.
10. Third, the power conferred by s 132A(1) to grant leave to make an application under s 132, even though the application is made less than 28 days before the date fixed for trial, is discretionary. It follows that the review by this Court of that power is governed by the principles stated in House v King (1936) 55 CLR 499 especially at 504 to 505; [1936] HCA 40 ("House"). One relevant consideration to a grant of leave by a Court, such as leave to appeal or leave to extend time to bring an application, is the relative strength of the ultimate claim for relief (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33]). Hence, on any application for the grant of leave under s 132A, one factor that must be considered is the relative strength of the application for a judge alone order. Where the Crown consents to the application for a judge alone order then that is a strong factor in favour of the grant of leave, although it is not determinative.

The Appeal - Leave

1. The conditioning of appeals from interlocutory orders in criminal trials by the necessity to obtain a grant of leave to appeal serves to avoid the fragmentation of the trial process. In many cases a refusal of leave will not prevent the applicant from reagitating the substance of their complaint in the event that they are convicted. However, in this case the subject matter of the appeal concerns the mode of trial. It does not necessarily follow that, if leave were refused and the applicants were convicted following a jury trial, that they could reagitate a complaint that they were wrongly denied a judge alone trial in any appeal against their conviction. That circumstance combined with the strength of the applicant's grounds and the Crown's indication of consent if leave were granted under s 132A of the Criminal Appeal Act warranted a grant of leave to appeal under s 5F(3)(a) of the Criminal Appeal Act.

The Appeal - Grounds

1. Rafat's grounds of appeal and submissions reflected those raised by Hamdi. Hamdi's grounds of appeal are as follows: "(1) The trial judge erred in determining that leave was required to make an order for a judge alone trial; (2a) The trial judge erred in failing to have regard to the evidence of Hamdi's solicitor in a consideration of whether the 'speculative' appearance of judge shopping was a relevant consideration in the grant of leave. [The short point is that Hamdi was not judge shopping and had adequately explained delay; noted but not considered] (2b) The trial judge erred in failing to have regard to the evidence of Abdul Saddick that the applicant, Rafat Alameddine, had accepted his Senior Counsel's advice to make an election for a judge alone trial in a consideration of whether the appearance of judge shopping has been displaced. (3) The trial judge erred in failing to consider that the Crown sought a judge alone trial notwithstanding the timing of the respective elections."
2. It follows from the conclusion above (at [23]) that ground 1 must be rejected.
3. Ground 2(a) concerns the "explanation" provided by Hamdi for not making his application for a judge alone trial earlier. The relevant part of the trial judge's reasoning is set out above. The trial judge accepted that there was an "obstacle" to the application, being Rafat's prevarication in consenting to a judge alone trial. On its face this appears to be a reasonable explanation for Hamdi's delay in making the application. Nevertheless, the trial judge appears to have regarded that explanation as insufficient or inadequate because of the lack of "close liaison between the co-accused and their respective legal teams." To the extent that his Honour appeared to contemplate liaison between the two applicants, his Honour overlooked the circumstance that their bail conditions precluded them from communicating with each other. In any event, in circumstances where the procuring of Rafat's consent was dependent on his conferring with his senior counsel, we do not accept that Hamdi or his legal team were somehow dilatory in not taking some unspecified step to procure Rafat's consent. Otherwise, leaving aside what steps Hamdi or his legal team could have taken to procure his cousin's consent, on any view Hamdi's explanation for the delay dispelled any suggestion of "judge shopping". By attributing fault to Hamdi for somehow failing to procure his cousin's consent to a judge alone trial, the trial judge failed to take into account the fact that Hamdi's application could not have been made earlier because it faced an obstacle not of his own making and that his explanation was inconsistent with any suggestion of judge shopping. It follows that his Honour failed to take into account a "material consideration" to the exercise of the power to grant leave under s 132A (House at 505).
4. Accordingly, ground 2(a) is upheld.
5. Ground 2(b) contends that the trial judge did not have regard to Rafat's explanation for his delay in applying for a judge alone trial. The trial judge addressed that explanation in some detail and considered it inadequate in the sense that it revealed prevarication on Rafat's behalf. The applicant's submissions contended that, although his Honour referred to the explanation, his Honour did not consider it in the sense that, even though it revealed prevarication on Rafat's behalf, the explanation was not consistent with any suggestion of judge shopping given that the identity of the trial judge was not known when the consent was given. We do not accept that the trial judge failed to consider Rafat's explanation in that sense in that his Honour accepted that it was "not the case in the present trial" that both applicants were engaged in judge shopping. However, this points to a larger difficulty with his Honour's reasoning. His Honour acted upon a "wrong principle" in considering, where the explanation proffered and accepted dispels any suggestion of judge shopping, that the appearance of judge shopping could somehow remain to warrant refusal of the application for leave under s 132A (id). For that reason, ground (2(b) is upheld.
6. Ground 3 wrongly asserts that the Crown sought a judge alone trial. Otherwise, the ground raises the issue noted above, namely whether, in considering whether to grant leave under s 132A of the Criminal Procedure Act, the trial judge failed to consider the strength of the application for a judge alone order. In this case, if leave were granted, the application for a judge alone order would inevitably succeed, as the Crown consented. Although, that was not determinative it was nevertheless a "material consideration" that was not taken into account (id). Ground 3 is upheld.
7. Having found that the trial judge's discretion miscarried, this Court should re-exercise it (Criminal Appeal Act, s5F(5)(b)). Once it was accepted that the suggestion of judge shopping was dispelled, and, given the Crown's consent to the making of a judge alone order if leave were granted under s 132A, leave should be granted under that provision. Once that leave is granted, then an order for a judge alone trial had to be made.

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