Bruce Donald Redman v R

Submissions

Mr O'Neil, counsel for the applicant, pointed to the fact that neither the "application of objective community standards" nor the applicant's intention are relevant in this case. He submitted that, by characterising the question whether a complainant in a sexual assault should be accepted beyond reasonable doubt as "a quintessential jury issue", his Honour was in effect acting on the basis that a jury was a more appropriate decider of such a crucial fact than a judge. The problem of prejudice was not sufficiently overcome by adopting the suggestion of the Crown that the applicant's evidence be censored. He contended that the applicant's absence from 28 November was inextricably interwoven with the events of the previous day, which were crucial to the persuasiveness of the applicant's evidence that he could actually recall the events of that day and the jury should accept the truth and reliability of his evidence that he had not seen the complainant at the party. The forensic desirability of this line of evidence was very much a matter for the applicant and his advisers and the applicant should not have to place on the scales the possible prejudice which might adversely affect the jury's consideration of his defence. Moreover, the events occurred many years before and the jury might well be sceptical about any account given by the applicant of his activities at what was said to be the only party attended in the year were it not for the corroborative detail which marked that and the subsequent day as memorable.
The Crown submitted that it was open to the trial judge to conclude that a jury was better able than a single judge to assess the relative credibility of the complainant and the applicant. At all events, since the application depended upon establishing that the applicant would be prejudiced by disclosure of the truth, it was open to his Honour to find that means were available to avoid the prejudice to which the applicant pointed. Consideration
In R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 Hamill J (if I may say so with respect) comprehensively summarised the cases dealing with the application of s 132 of the Act, starting with the principle (to which reference has already been made) in Belghar that, although there was an evidentiary onus on the applicant, there was no presumption in favour of a jury trial and no legal onus on the accused who seeks an order for trial by judge-alone: the question is what is in the interests of justice. The next material point is that, although the accused has no right to trial by judge alone, his or her election for such a trial is to be taken into account as a matter to be weighed in determining where the interests of justice lie: Simmons at [60].
The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales. As Hamill J noted, there are a number of judicial statements commending the ability of juries to assess credibility and reliability of witnesses but "…it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are essential to a trial, that is a factor that militates strongly in favour of a jury trial" (Ibid at 75). His Honour concluded - [82] …[For] the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone … [Each] mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question[s] of credibility, putting aside matters of emotion, on an almost daily basis.
(I would add the additional consideration that, here, the effect of delay on the ability of the applicant to defend himself is a complicating feature.)
The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J that "…many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices" (Simmons at [53]). Furthermore, it is to be assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88]). Conclusion
On a fair reading of the trial judge's reasons, it seems to me (with respect) that, as distinct from merely emphasising the jury's suitability for judging credibility in a word against word case, his Honour acted on the basis that a jury is a superior tribunal of fact for this purpose. This was a significant error: the interests of justice are not determined by suppositions about the relative abilities of judge or jury to determine facts, though in some cases - such as those enumerated in s132(5) - a jury may be the more appropriate tribunal, other things being equal.
Evidence that the applicant could not have been at a birthday party on or, for that matter, after 27 November is obviously relevant and could not be excluded. Nor can the applicant be prevented from being entirely candid about the matter, not because the fact might be disputed, but because his credibility will be judged against that of the complainant and a suspicion in the jury's mind about a lack of candour could be unjustly engendered were he to appear to be concealing matters from them; the jury will assess his truthfulness on their overall view about him as a witness. For obvious reasons, the proposal of the Crown did not ameliorate this problem. A direction that the jury must not speculate about the circumstances does not answer this problem, even supposing it were effective to prevent the implication that something adverse to the applicant was being kept from them. The question then arises whether directions by the trial judge not to use the evidence of wrongdoing adversely to the applicant would suffice. Likely it would, but a real risk would remain that it would not. These cases are emotionally fraught and the offences naturally instigate powerful feelings of disgust. The applicant cannot rely on evidence of good character. In short, the applicant must make a choice between full disclosure on the one hand and the real risk of adverse prejudice on the other.
In my respectful view, the trial judge erred in concluding, in effect, that the applicant's fair trial would not be compromised by requiring him to agree to limit the evidence as proposed by the Crown or otherwise take the risk of being adversely prejudiced by giving a candid account. The risk of unfair prejudice would be entirely removed were the applicant to be tried by judge alone. Accordingly, it is in the interests of justice that the trial proceed in that way. Orders
Accordingly, I propose the following orders - (i) leave to appeal be granted; (ii) the decision below be quashed; and (iii) the trial proceed by judge alone.
R A HULME J: This case turns on its own facts and may be resolved simply for the reason given by Adams J in the paragraph of his judgment immediately preceding his proposed orders. I agree that those orders should be made.
There is an observation I wish to add concerning the fact that the application came before his Honour Judge Lerve on the very day the matter was fixed for trial (although he had been alerted to it the previous business day). The applicant required leave, his application not having been made "not less than 28 days before the date fixed for the trial": s 132A of the Criminal Procedure Act. An explanation for the lateness of the application was provided in the affidavit of the applicant's solicitor which was read in the District Court.
The late notice to the trial judge was regrettable (at least) and meant that he was required to determine the application expeditiously, given that he had a jury panel in waiting. His Honour's reasons clearly demonstrate that he had a thorough appreciation of the legal principles to be applied but he was denied the opportunity that this Court has had for more timely consideration of their application. Another aspect of this is that I would hesitate before engaging in precise analysis of terminology used by his Honour in his ex tempore judgment (particularly as to his use of the term "quintessential jury issue").

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Cited By (17)