Brown, Michael John v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2018-04-04|Before: Basten JA, Rothman J, Garling J

Solicitors: Aboriginal Legal Service (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2016/191712 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 November 2017 Before: Marien SC ADCJ File Number(s): 2016/191712

Judgment

BASTEN JA: The applicant has been committed for trial on a charge under s 25A of the Crimes Act 1900 (NSW) of an assault causing death, committed on 23 June 2016 at Brewarrina. On 15 November 2017 Acting Judge Marien SC rejected an application by the present applicant for a trial by judge alone, sitting without a jury, pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). The judgment being interlocutory, the applicant requires leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). (The applicant also requires an extension of time within which to seek leave.)

Nature of appeal

The nature of the appeal to this Court is a function of four factors, namely: (a) the provision under which the appeal is brought, (b) the provision under which the decision the subject of the appeal was made, (c) the particular issue raised and (d) the nature of the error alleged. It is convenient to deal with the first two factors separately.

(a) appellate jurisdiction

All appellate jurisdiction is statutory; the provision invoked in the present case is s 5F of the Criminal Appeal Act: 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is: (a) a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or (b) a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or (c) a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider. (3AB) An appeal under subsection (3AA) may be made whether or not an appeal has been made by a party to the proceedings, but only if: (a) the Court of Criminal Appeal gives leave to appeal, or (b) the judge or magistrate of the court of trial certifies that the decision is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001.
The present application depends on s 5F(1)(a), (3)(a), (4) and (5). However, it is important to note that the section covers appeals from a range of courts on a range of issues, and by both prosecution and defence, and even by non-parties; some cases require leave and some do not. Some cases will turn solely on the evidence before the primary judge; in other cases, pursuant to subs (4), further evidence may be admitted. Apart from subs (3A), which is not applicable in the present case, the section provides no standard or criterion for the exercise of the appellate jurisdiction conferred. Given the range of appeals which can be brought under s 5F, it is inherently likely that the approach of the appeal court will vary depending upon the nature of the case. An important common feature, however, is that the section deals only with interlocutory appeals.

(b) nature of decision under appeal

Section 132 of the Criminal Procedure Act, under which the order under appeal was made, provides: 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.
This was a case in which a judge alone trial was sought by the accused, but opposed by the prosecutor. Accordingly, the primary considerations were those set out in subs (4) and, so far as relevant, subs (5). Although subs (4) says that the court "may" make an order in the prescribed circumstances, the applicant submitted that "may" conferred a power which was to be exercised, rather than a discretionary power. In other words, once engaged according to the terms of the section, it was a power coupled with a duty to exercise the power.
The use of "may" to confer powers on a court has long been understood to include such cases. In considering s 5B of the Criminal Appeal Act (conferring a power to submit a question of law to the Court of Criminal Appeal) in Ex parte McGavin; Re Berne, [5] Jordan CJ noted that so much had been recognised as long ago as 1851. [6] One consequence of that conclusion is that the court has no residual discretion to decline to exercise the power, once engaged. The result is that any factors which might have been relevant to a residual discretion will amount to impermissible considerations.

In arguing that the power conferred on the court was not strictly a discretionary power, but a power coupled with a duty, the applicant sought to avoid the conclusion that this Court would limit its consideration of the decision below by reference to the factors identified in House v The King. [7] By way of contrast, the applicant submitted, House involved a true exercise of discretion, namely the imposition of a sentence, which required the judge to select a particular outcome from a wide range of possibilities.
However, this reasoning did not avail in the present circumstances; the criterion of engagement, namely "the interests of justice", was expressed in such wide terms as to leave no realistic possibility of other considerations which might be excluded upon satisfaction of the statutory criterion. The evaluative judgment, in effect, did all the work. If it were found to be in the interests of justice to make such an order, the court should make the order because there would be no basis not to. Ultimately there was a binary decision (to make the order or not to make the order), but one which depended on an evaluation of potentially conflicting considerations.

(d) authority

The question remains as to whether this approach is consistent with authority. It is sufficient to refer to three decisions to which the Court was taken by the parties. These were DAO v The Queen, [8] Belghar and RKF v R. [9]
DAO involved the refusal by a trial judge to order separate trials on an application to sever counts in an indictment. The issue turned on the cross-admissibility with respect to each count of tendency evidence sought to be tendered by the prosecution. The formal order was an interlocutory judgment, but the underlying basis (as to the admissibility of tendency evidence) was not. That was a factor affecting the approach of the Court with respect to an appeal under s 5F, which does not permit appeals from rulings on evidence. Secondly, there was a question as to the correct approach to determining the admissibility of tendency evidence under s 97 of the Evidence Act 1995 (NSW). Thirdly, there was a question as to the correct approach of this Court on an application for leave to appeal from an interlocutory judgment, pursuant to s 5F of the Criminal Appeal Act.
In relation to the last question, Spigelman CJ stated: "[54] In the case of an appeal after conviction under s 5(1), this Court will focus on the terminology of 'wrong decision on a question of law' and 'miscarriage of justice', as s 6(1) provides. In the case of an appeal from an interlocutory judgment or order under s 5F, there is no express statutory standard or criterion. However, that does not mean that the jurisdiction is at large. [55] When enacting s 5F, the Parliament adopted terminology to which well established principles applied with respect to the degree of restraint that an appellate court should manifest. Relevantly, a high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. The basal authorities are In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 322-323 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The position is the same in criminal procedure: see, for example, Rogerson v The Queen (1990) 45 A Crim R 253 at 253-254; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599; R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [13]. … [57] The relevant case law under s 5F has focussed on the leave requirement. However, this case law has adopted similar principles to those developed over many years with respect to appeals from interlocutory decisions in civil cases. The principles developed in that context are also applicable to a proceeding in which leave is not required under s 5F or when leave is granted." After referring to the reasoning of Gleeson CJ in R v Matovski, [10] Spigelman CJ continued: "[59] This analysis is closely analogous to the House v The King test. I include in that observation the last category in House v The King, to the effect that a decision is 'unreasonable or plainly unjust'. The comparable terminology of Gleeson CJ in Matovski is 'the interests of justice' which, in the context of his Honour's reasons, appears to me to be equivalent to the House v The King test: see also Alexandroaia v The Queen (1995) 81 A Crim R 286 at 290. [60] Although Matovski focuses on the grant of leave, in my opinion, the reasoning applies to the second matter …, namely the decision to exercise the power to interfere with the interlocutory decision. On this basis, the relevant degree of appellate restraint is at the House v The King end of the spectrum, rather than at the Warren v Coombes end."
Allsop P in DAO adopted a similar approach, relevantly stating: "[88] The degree of intensity of review on appeal of any particular question depends upon a number of things - the terms of the statutory provision providing for appellate review, the nature of the question under review, the need to discern error, the respective advantages and disadvantages of the court below and the appeal court and, implicitly, a degree of legal policy (though the last matter is rarely explicated). I strongly agree with the Chief Justice that labels are apt to mislead in this context, most particularly the word 'discretion' and the phrase 'House v The King review' as an alternative to 'Warren v Coombes review' as the exhaustive universe of alternatives (which they are not)."
Kirby J agreed with the reasoning of the Chief Justice and the President with respect to this issue.
Both Spigelman CJ and Allsop P adopted an approach which was nuanced in three respects. First, they resisted a firm dichotomy between the principles to be applied on an unconstrained appeal by way of rehearing and those applicable to an appeal from a discretionary judgment. Secondly, they accepted the close analogy between review of a discretionary judgment and review of an evaluative assessment of material considerations. Thirdly, they placed weight upon the fact that an appeal under s 5F involved an appeal from an interlocutory judgment on a matter of procedure, rather than a final judgment.
The same considerations apply in the present circumstances, with two qualifications. First, there is a difference, not only as to the party likely to be seeking to appeal, but in substance, between an appeal from a decision to reject evidence and a decision to admit evidence. DAO dealt with the latter, which was, as the Chief Justice noted, a reversible decision, if it turned out in the course of the trial that the evidence had been wrongly admitted. It was also a decision which could result in a challenge to the final judgment. Neither of those factors applies to a decision as to the form of the trial. Secondly, although it was true to say that a decision to sever (or not to sever) counts on an indictment affected the structure of the trial, it was different in kind to a decision to require (or to forgo) a trial by jury. The latter (as in this case) is more likely to be determinative of the structure of the trial and less likely to be reversed; there is no realistic possibility that a jury will later be empanelled or that its absence will form a ground for challenging a conviction.
The second case, with which the applicant took issue, was Belghar, heard one year after judgment was delivered in DAO. It would be surprising if it departed from the principles established by the five-judge bench in DAO. However, unlike DAO, the subject matter of the appeal, like the present case, involved a decision under s 132 of the Criminal Procedure Act. It differed from the present case in that the application for a judge alone trial had been granted and the appeal was brought as of right by the Director of Public Prosecutions.
Following a lengthy discussion of the advantages and disadvantages of a trial by jury and a review of the discussion of similar issues in other jurisdictions, McClellan CJ at CL addressed the task of the appellate court at [83]-[86], with reference to the judgment of the Chief Justice in DAO. The passages in DAO referred to by McClellan CJ at CL concerned conflicting authorities as to the applicable test in reviewing a decision under s 97(1) of the Evidence Act with respect to the admissibility of tendency evidence. Following the last of the paragraphs identified in Belghar, DAO continued: "[34] This line of authority suggests that a decision under s 97(1) is reviewable only on House v The King grounds. However, the contrary view has been put forward with cogent reasoning."
The reasoning in Belghar then noted the structure of s 132 of the Criminal Procedure Act and concluded: "[87] A decision as to whether or not the trial should be by judge and jury or by judge alone is a decision on a matter of procedure. A decision as to whether there should be separate trials of co-accused is similarly a decision as to a matter of procedure. Accordingly, a high degree of judicial restraint is required of an appellate court when asked to review that decision: (at [55]). [88] It follows that the decision of the primary judge is reviewable for error in the exercise of the 'discretion', which may involve acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or having regard to the relevant facts, a miscarriage of the discretion by reason that the decision was unreasonable or plainly unjust: at [78] (Allsop P). These are the principles discussed by Kirby P in Pambula Hospital at 401-402." [11]
To the extent that this passage treated any appeal under s 5F as one to be determined by reference to the kinds of errors identified in House v The King, it tended to subvert the more nuanced approach adopted in DAO. However, it was unlikely that that was intended; rather, the conclusion set out above should be understood as identifying the approach deemed appropriate in the circumstances of Belghar itself. It is not insignificant that, on the facts, the pre-trial decision to have a judge alone trial was set aside.
The accused (Belghar) had been charged with several counts of personal violence against a young woman, of which the most serious was attempted murder. The application for a judge alone trial was based on an allegation of community prejudice against Muslims who hold "conservative" views about the place and role of women in marriage and in society. [12] The Court held that there was "no evidence of the existence in the community of the prejudice which was asserted" and that, if the prejudice existed, the judge did not consider whether it could be neutralised by directions to the jury. [13]
The other members of the Court, Hidden J and Hislop J separately agreed that the primary judge had been in error, but expressly disassociated themselves from "the Chief Judge's examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues." [14] There is, therefore, no need to consider those matters further.
The third case referred to, RKF v R, also involved an application for a judge alone trial. The application was refused by the trial judge and an appeal under s 5F was dismissed. The Chief Justice (with the agreement of Hall J and R A Hulme J) stated: "[38] Neither party disputed the proposition that as the application for leave to appeal was from a discretionary judgment, it was necessary for the applicant to establish error in the sense described in House v The King. In these circumstances, it is not necessary to give further consideration to the nature of an appeal under s 5F(3) of the Criminal Appeal Act: see BWM at 261 and 266; DAO … at [58]-[60], [78], [81] and [84]." [15]
In one particular respect, Belghar was approved and applied in RKF, namely the statement that: [16] "The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Gilbert v The Queen. [17] The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial." The applicant did not challenge this statement.

(e) conclusions as to principles governing a s 5F appeal

The approach outlined above at [6]-[13] is consistent with that adopted in DAO. Nothing in RKF departs from that approach. Belghar should also be understood as applying DAO. The applicant did not seek to challenge DAO.

Application of principles

As I sought to explain in Director of Public Prosecutions (NSW) v Farrugia, [18] it has long been considered a fundamental aspect of the administration of criminal justice that a trial on indictment be conducted before a jury of 12 persons. That procedure was prescribed with respect to Commonwealth offences by s 80 of the Constitution. It remains the usual method of trial in this State, as reflected in s 131 of the Criminal Procedure Act.
This principle has two underlying rationales. The first is protective of the accused person. That such a justification remains is reflected in s 132(3), prohibiting a trial by judge alone in the absence of informed agreement of the accused. [19] Secondly, there is the value accorded to the involvement of the representatives of the community in the determination of the guilt or innocence of persons accused of serious crime. The direct involvement of the community is a mechanism for preserving confidence in the criminal justice system. That rationale is reflected in the fact that a judge alone trial will not be granted merely on the request of the accused and that the court is specifically required to have regard to matters involving the application of objective community standards. [20]
These are generic considerations applying to the jury trial as an institution. There are countervailing generic considerations, such as the lack of transparency involved in a jury verdict and the likelihood that a jury trial will take longer and will be more expensive to run. A weighing or balancing of these generic factors is not the exercise required in considering an application for a judge alone trial. [21]
In a careful and comprehensive judgment, the judge directed attention to the nature of the alleged offending, the procedural circumstances by which the matter came to be listed in Bourke and the numerous grounds on which a judge alone trial was sought, many of which had little prospect of success. The grounds raised before the primary judge may be identified as follows: 1. the offence occurred in Brewarrina which was "the catchment area" for the Bourke district and a jury trial could not be held in Bourke; 2. if a jury trial were to be conducted in Dubbo it would be inconvenient for the accused and his family; 3. a judge alone trial would take less time; 4. there was complex expert forensic pathology evidence as to the cause of death; 5. there were emotional considerations including the age of the deceased (72 years) and a possible view that the accused "was effectively being a pest"; 6. a trial in Bourke could take place on 12 February 2018, but a trial in Dubbo could not be obtained before June or July 2018; 7. the accused did not believe he would receive a fair trial at the hands of a jury. [22]
The proposed grounds of appeal, filed with written submissions on 26 February 2018, may be summarised as follows: 1. the primary judge imposed an onus of proof on the accused to establish that a judge alone trial was in the interests of justice; 2. the judge "failed to properly take into account the relevant consideration that, in the absence of a trial by judge [alone] the venue of [the] trial would change"; 3. the judge "failed to properly take into account" the evidence of potential unfairness; 4. the judge "mistook the facts by his mischaracterisation of the state of the expert evidence"; 5. the judge erroneously applied "the common law test for causation" to the offence created by s 25A of the Crimes Act.
The written submissions included a further ground 6; however, it was not a challenge to the order of the primary judge, but rather a statement as to how this Court would decide the question for itself, applying the correct test.
The first ground stands or falls on the proposition that the judge imposed a burden of proof in stating: [23] "At the end of the day considering all of the matters raised by Mr Nash [counsel for the accused], I am not satisfied that the accused has met the evidentiary burden to establish that it is in the interests of justice that the accused be tried by judge alone."
This sentence constituted the last sentence in the judge's extensive reasons, in the course of which he dealt with each of the matters raised by the applicant and dismissed it as not providing a basis, in the interests of justice, to order a judge alone trial. The applicant did not dispute the proposition that he bore the burden of providing some evidential basis upon which to obtain the order. However, the judge's assessment did not turn on evidence presented by the applicant in any relevant respect. It turned upon an assessment of matters of which the judge could take judicial notice, together with a volume of witness statements tendered by the prosecutor. As to the subjective apprehension of the accused as to whether he would receive a fair trial, deemed on some authorities to be relevant, the judge merely noted that the accused did not give evidence on the application. [24] The judge took into account the fact that the accused had elected to be tried by judge alone. [25] In other respects, the fate of the application did not turn upon any question of the burden of proof of factual matters. Ground 1 is without substance.
Ground 2 (like ground 3) referred to a failure to "properly take into account" a particular matter. That language concedes (correctly) that the judge in fact took the matter into account. It suggests little more than that the applicant does not like the outcome. Thus, the judge expressly stated at the outset of his consideration of the bases of the application that, if he were to determine that the accused's trial should not be a judge alone trial, it would need to be conducted at Dubbo. [26] That formed the basis for the first two grounds of the application, namely that the trial should have been listed in Bourke, first, because that was the district which included the place of the alleged offence and, secondly, because Bourke was more convenient than Dubbo for the accused and his family. In other words, the consideration identified in ground 2 formed the basis of the application to the trial judge in terms which were expressly and directly considered by the judge. Not only did he take it into account, but he took it into account in the manner in which it had been relied upon before him. Ground 2 is without substance.
Ground 3 alleged error in assessing "the evidence of potential unfairness". In written submissions, the applicant sought to make three points. The first was that the trial judge had summarised relevant principles derived from the judgment of Hamill J in R v Simmons; R v Moore (No 4). [27] The judge paraphrased what Hamill J had said at [60]. The submission in this Court was that the "relevant passage" in the judgment of Hamill J extended from [58] to [60]. That complaint did not demonstrate error.
Secondly, the submission continued: [28] "Properly understood Hamill J, while acknowledging that evidence of an accused's subjective apprehension that a trial might be unfair can be taken into account, such evidence ought be given little or no weight unless there was some objective evidence to support it." Reference was also made to Belghar, where a similar proposition is to be found. [29]
This challenge is not only without substance in its terms, but is misconceived. As described above, counsel had relied before the primary judge on six separate grounds, other than the subjective apprehension of the accused, to demonstrate potential unfairness. Those were the objective factors to be taken into account. All of them were taken into account.
Thirdly and finally in relation to ground 3, the applicant submitted that the judge had required him to establish "that there is a high degree of potential prejudice before ordering a trial by judge alone". He submitted that the aspects of the case relied upon included (though no other element was identified) "the accused being a drunk aboriginal and the victim being an elderly man who had died during or in the immediate aftermath of an attempt to stop the accused making a pest of himself." [30] The submission then characterised the judge's statement that "the circumstances surrounding the commission of the offence are not so inflammatory or prejudicial …" as an acknowledgment that the facts had the potential to evoke emotive and irrational responses which, by inference, should have been sufficient.
The language of the trial judge was taken out of context. The full statement read as follows: [31] "In my view the evidence and the circumstances surrounding the commission of the offence are not so inflammatory or prejudicial that a jury would have difficulty in complying with the direction of the trial judge not to be swayed by sympathy, prejudice or bias." The test was correctly stated; there is no error in its application.
As it was outlined in the written submissions, ground 4 was incomprehensible. It remained so after oral argument. The applicant's contention was that the judge had erroneously found that there was a conflict between the autopsy report and expert pathology evidence obtained for the accused. The judge said he had considered a submission that it was "preferable that the evaluation of that evidence and determinations made with respect to that expert evidence be transparently exposed in reasons given by a judge". [32] The applicant said that was an incorrect understanding of his submission.
It is clear from the transcript of the hearing that the primary judge at first apprehended that the basis for the reliance on the forensic evidence was indeed that there was a conflict which would need to be resolved. The discussion proceeded over several pages of the transcript. [33] As it eventuated, the argument was that, far from being a conflict, the forensic evidence did not establish that the death of the deceased was caused by the actions of the accused. The judge fully understood that explanation and noted that it might give rise to a "no case submission" in relation to the causation issue, which might or might not be successful. Counsel agreed stating, "Yes and that's when I come back to the arguments about emotion and prejudice and all of that." [34]
If it were correct that there was no conflict between the evidence of the two experts, then the primary judge addressed an issue which did not arise on the application before him. It is by no means clear how the rejection of a non-issue could give rise to appellable error. Indeed, if there were no conflict between the experts, it is not entirely clear why the accused sought to call expert evidence. On the other hand, the primary judge would have appreciated the obvious proposition that the prosecution would take a different view, at least of its expert evidence, so that there might indeed be a conflict. It was entirely appropriate (though perhaps not essential) that the primary judge address the issue. He did not err in the manner in which he addressed it.
Ground 5 was directed to the test for causation to be applied in addressing the non-issue raised by ground 4. The trial judge said, correctly as the applicant accepted, that the common law test of causation was to be determined by the application of "common sense". That, it was also accepted, was "quintessentially a jury function." [35] The alleged error was in adopting the common law test. The applicant based his case on the fact that s 25A of the Crimes Act requires that "the assault causes the death of the other person." Further, s 25A(3) provides: For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.
The submission stated that s 25A "requires that the death be the result of the injuries received 'directly' from the identified 'hitting'." If that were intended as a comprehensive statement of the effect of subs (3), it is patently wrong. It was relied upon as a step in an argument that "the legislature has evinced a clear intention that the common law be displaced". [36] Whether or not that proposition is correct, there is no basis for thinking that the application of the section is not still quintessentially a jury matter. Ground 5 is unsupportable.

Conclusions

Because the applicant sought to raise a legal issue as to the exercise of this Court's appellate function in dealing with an appeal under s 5F of the Criminal Appeal Act, in relation to an application for a judge alone trial under s 132 of the Criminal Procedure Act, it is appropriate that he have an extension of time within which to bring the application and a grant of leave to appeal. Nevertheless, all the grounds of appeal lack merit and the appeal must be dismissed.
Accordingly, the Court should make the following orders: 1. Extend the time for filing an application for leave to appeal to 26 February 2018. 2. Grant the applicant leave to appeal from the judgment given in the District Court on 15 November 2017. 3. Dismiss the appeal.
ROTHMAN J: I have had the advantage of reading the draft reasons for judgment of Basten JA and of Garling J and the orders proposed by Basten JA. I agree with the orders proposed.
I agree with the analysis of Basten JA of the judgments of the Court in DAO, RKF, and Belghar and the principles to be discerned from them and their consistency. Further, I would add that where, as here, the criterion by which a determination is to be made is "the interests of justice", there is little, if any room, for the exercise of a "residual" discretion. It is impossible to imagine a discretion being exercised otherwise than in the interests of justice or despite those interests: see, by analogy, Finance Facilities Pty Ltd v Commissioner of Taxation (1970-7) 127 CLR 106 at 134-135.
I also agree with the principles stated by Basten JA at [30] (and following) and, in particular, the reiteration of the "fundamental aspect" described by his Honour in DPP v Farrugia.
Further, I accept, as one must, that the District Court has power to change the venue of the trial either on application or of its own motion: see [4] supra. The grounds for a change in venue are prescribed by s 30 of the Criminal Procedure Act on two criteria, namely, whether "a fair or unprejudiced trial cannot otherwise be had" or "for any other reason it is expedient to do so".
Again, there seems little room for a residual discretion based on criteria beyond those prescribed by s 30 of the Criminal Procedure Act. Once more, I express my agreement with Basten JA that the fact of a change in venue being required is a matter that may be considered in determining whether the interests of justice are served by a Judge alone trial: see [5] above.
However, I disagree that the fact that the accused had been remanded to Bourke was not a "relevant factor" in the assessment of the interests of justice. It is the same criterion as the necessity for a change in venue.
The difficulties in obtaining a jury panel in Bourke would be well-known to the District Court judges and to practitioners in the area. It stems from the very low number of potential jurors from which to choose and the high number of those ineligible because of familiarity with the investigating police, witnesses or the accused.
The appeal is taken against the decision to refuse a judge-alone trial. It is not taken against the decision to change the venue.
On questioning, counsel for the appellant submitted that a trial in Dubbo would be, or is likely to be, tainted by prejudice. If so, the remedy is to make application to change the venue from Dubbo.
A change of venue, governed still by s 30 of the Criminal Procedure Act, must be determined on the basis of the criteria in that provision. Once a trial is required to be set down outside the proclaimed place to which this accused had been remanded, there may be a number of other places that are equally "expedient" and for which the accused may contend. It does not seem that his Honour considered any other venue or was asked to consider it.
Further, it does not seem that his Honour has heard the parties on that question. But that question is not raised on this appeal.
GARLING J: I agree with the orders proposed by Basten JA for the reasons which he gives.

Endnotes

[2012] NSWCCA 86; 217 A Crim R 1.
District Court Rules 1973 (NSW), Pt 53, r 7(3).
District Court Act 1973 (NSW), s 18F.
Proclamation, New South Wales Government Gazette, No 152, 15 December 1995, p 8597; District Court Rules, Pt 53, r 7(4), providing for a change of venue within the same district, but without limiting subr (3).
(1945) 46 SR(NSW) 58 at 60.
Macdougall v Paterson (1851) 11 CB 755 at 773; see generally D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) p 426ff.
(1936) 55 CLR 499; [1936] HCA 40.
(2011) 81 NSWLR 568; [2011] NSWCCA 63.
[2016] NSWCCA 116.
(1989) 15 NSWLR 720 at 723.
See Pambula District Hospital v Herriman (1988) 14 NSWLR 387.
Belghar at [107].
Belghar at [108].
Belghar at [117] and [122].
See R v BWM (1997) 91 A Crim R 260.
RKF at [45]; Belghar at [102].
(2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J).
[2017] NSWCCA 197.
With respect to the need for advice, see s 132(6).
Criminal Procedure Act, s 132(5).
Belghar at [120] (Hidden J); Farrugia at [11] (in my judgment, Button J agreeing).
Judgment, 15 November 2017, pp 13-15 and 17.
Judgment, pp 20-21.
Judgment, p 17.
Judgment, p 20.
Judgment, p 13.
[2015] NSWSC 259; 249 A Crim R 120.
Applicant's written submissions, 26 February 2018, par 41.
Belghar at [102].
Submissions, par 43.
Judgment, p 20.
Judgment, p 14.
Tcpt, 13/11/17, pp 31-34.
Tcpt, p 34(20).
Submissions, par 53.
Referring to Domio [2018] NSWDC 16 at [15] (Haesler DCJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2018

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