Director of Public Prosecutions (NSW) v Farrugia

Relevant principles

1. Traditionally, criminal trials with respect to charges on an indictment have been heard by a judge sitting with a 12 member jury. In 1900, that procedure was considered to be such a fundamental aspect of the administration of criminal justice that a requirement that any trial on indictment for an offence against a law of the Commonwealth shall be by jury was included as s 80 of the Constitution.
2. Various changes have arisen with respect to jury trials in State jurisdictions, including New South Wales. The predecessor to s 132 was introduced in 1990 as s 32 of the Criminal Procedure Act. [2] Section 132, in its present form, was inserted in 2010. It provides that either party may make an application for trial by judge alone, which the Court may grant "if it considers it is in the interests of justice to do so." [3] However, the accused has a power of veto; and, if both parties agree, the judge must make the order, whether or not it is in the interests of justice to do so. The judge is required not to make an order unless satisfied that the accused has sought and received legal advice. [4] That provision is designed to ensure that the right to veto such an order is not overlooked and also that any agreement to an order sought by the prosecutor, or an application by the accused, is not given or made without legal advice.
3. Section 132 is important and reads as follows: 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.
4. Section 132(5) identifies a relevant (in the sense of permissible) consideration (or possibly a mandatory consideration), but without seeking to qualify the power to make an order for trial by judge only, pursuant to subs (4). It does not appear to qualify subs (2), although that is perhaps not beyond doubt.
5. Although it is said that an order under s 132 should be characterised as a procedural step, it does not follow that an appellate court should adopt a restrained approach to intervention on that basis alone. There is a large public interest in the form of a criminal trial and it is wrong to treat the presence or absence of a jury as procedural in the way that characterisation is used with respect to appeals in civil proceedings where leave is required.
6. An order under s 132 is also identified as the exercise of a discretionary power. That is true, although it is not a discretionary power of the kind engaged in House v The King, [5] namely the choice of a particular point within a range of available sentences. Rather, it involves a binary choice, albeit that the criteria will engage an evaluative judgment. There is a strong public interest in ensuring that such judgments are made according to appropriate criteria and that relevant considerations are given proper weight.
7. It may be right to say that a trial judge faced with an application under s 132 should not approach the task imposed by the provision by reference to "presumptions" or "assumptions". That language may be inapt. However, the task cannot be assayed without bearing in mind that trial by jury is the conventional approach and, in the absence of an order under s 132, is mandated by s 131 of the Criminal Procedure Act.
8. It is also important to bear in mind the nature of the public interest which underpins the standard procedure of trial by jury. It was succinctly articulated by McHugh J in Fittock v The Queen, [6] by reference to the constitutional provision: "The purpose of s 80 is to protect the citizen from the executive and judicial power of the Commonwealth by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts." Beyond such statements, applications under s 132 do not require a generic assessment of the perceived benefits and disadvantages of trial by jury as against trial by judge alone. Counsel should not be expected to engage in such a task, nor should the judge determining the application, nor should this Court on an appeal. It is sufficient to note that, as drafted, s 132 gives weight to the importance of the application of objective community standards in the resolution of a range of factual issues, some only of which are expressly identified. That is a consideration which favours trial by jury, in accordance with underlying principle. What is required is an assessment of the particular circumstances of the case.
9. Without seeking to be restrictive of the circumstances in which such orders are appropriate, it is helpful to note that the decided cases reveal judge alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the judge is not satisfied that a fair trial can be achieved with a jury, perhaps because a particularly horrendous crime has inflamed public sentiment in a small community. On the other hand, it is clear that an order is not to be made because the judge has a preference for trials without a jury because, for example, a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run, or a "correct" result is more likely.
10. There is one further matter of principle relevant to the present case. Pursuant to s 132A(1), an application for a trial by judge alone "must be made not less than 28 days before the date fixed for the trial"; a requirement which may, however, be waived by the leave of the court. In the present case, leave was granted without argument, because the prosecutor did not oppose a grant of leave. In circumstances where the Director opposes the application, careful consideration should be given to opposing an application for leave, particularly where, as in the present case, the application is made on the day fixed for the trial to commence. As noted by Gleeson CJ in R v Perry, [7] albeit in relation to the predecessor to the current provision: "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."
11. Modern case management procedures will often mean, as Hamill J noted, [8] 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.

Application of principles

1. This case did not fit within any category in which orders for judge alone trials are warranted. The oral application made by counsel for the accused was in the following terms: [9] "The matter which is of concern to the defence in this case is that the … complainant … will be called as a witness. It will be necessary to cross-examine [her] on a number of issues. Some of that material may require that it is revealed that the accused was bail refused and in custody at the time that certain conversations took place between them and certain representations were made. But it would be of considerable disadvantage to the accused in a matter like this for it to be made known to a jury that he was in fact bail refused in a particular matter. Although it would be open to your Honour to make various directions in relation to that, it's the defence's submission that this may not completely cure the evil that would arise from that. It's very difficult to overcome the prejudice which does arise from a person being restrained in custody."
2. It is apparent that the applicant was seeking to equate knowledge of the fact that he had been refused bail with respect to the very charge which would be before the jury with the prejudice that may arise from the jury learning that the accused has been charged with, or convicted of, other offences, whether they occurred before or after the matter for which the accused is on trial. In usual circumstances, the facts of arrest and pre-trial detention are inherent elements of the criminal process and cannot, of themselves, give rise to the kind of prejudice which may give rise to an unfair trial. Nothing in counsel's submissions sought to explain why this was not the usual case. However, in the course of pressing the prosecutor, the trial judge said: [10] "[Counsel] says that it's prejudicial to the accused to tell a jury that the man's in custody. I mean if it was a murder charge a jury could be told - it's an ordinary occurrence that if people are charged with a very, very serious offence they remain in custody. But the jury would probably know, having read the local papers, that people who are charged with these sort of offences often get bail don't they?"
3. The prosecutor was then, in effect, cross-examined by the trial judge for over a page of the transcript, ending with the concession that it was "not unusual" to get bail in these sort of offences. The judge concluded: [11] "Right. So the jury would know that one would expect. They know that this man, if they're told that this man's in custody they might think that that's unusual."
4. The prosecutor having started with the proposition that it would be "unusual to get bail" and having accepted eventually that it was "not unusual" to get bail, it was inappropriate for the trial judge to treat that as a concession that it was unusual not to get bail. Nor did the prosecutor accept that the jury might draw an inference from the fact that the accused was not on bail. [12]
5. In the judgment, the judge stated: [13] "The accused is not charged with offences which ordinarily would have him bail refused. The Crown accepted that it cannot be said that it is unusual for offences of this nature for a person to be permitted bail. The jury in a country town may well know from observation in the local newspapers the types of offences that people are charged with, and whether or not they are granted bail or not. It seems to me that if a jury were to be told not by the Crown but by evidence being elicited either through the complainant or otherwise that the accused was in custody then the jury may well speculate as to why somebody in his particular position might be in custody."
6. Although the actual concession made by the prosecutor is properly stated, the rest is pure speculation. It was significant that the applicant did not identify a reason why he had been refused bail, nor was there any reason relied on by the trial judge.
7. This last point was important, because, if the reason had been identified, the possibility of prejudice might have been appropriately explored, together with the availability of appropriate directions as to what the jury could and could not take into account. None of this happened.
8. The Court was also entirely in the dark (as is this Court) as to the content of the evidence sought to be adduced on the part of the accused. To refer to the victim as a "complainant" was apt to colour the inquiry. She was, according to the statement of the prosecution case (which was before this Court, but not the trial judge), one of four victims of a violent and serious assault. How conversations which took place after the conduct alleged in the charges could help in the defence of the proceedings was not identified. The fact of the contact was, by itself, unsurprising, as the accused was the father of a child of whom the victim was the mother. Why it would have been necessary to disclose the place at which the conversations took place is entirely obscure. If the accused wished to preserve the content for the purposes of cross-examination, consideration could have been given to the information being supplied either in an anodyne form, or to the judge alone, or to the prosecutor, subject to an undertaking not to disclose the material to the witness. No such step having been taken, the prosecutor quite appropriately noted that it was not possible to know what the prejudice would be.
9. Even assuming that the prejudice was simply knowledge that the accused was refused bail pending the trial, careful consideration should have been given to the possibility that directions would have effectively cured any risk of prejudice. The issue was raised by the prosecutor, shortly before the judge announced his decision to grant the application. [14] No consideration was given to it in the reasons. Assuming that some prejudice would arise, it is difficult to understand why an appropriate direction would not be entirely effective in disposing of the problem.

Conclusions

1. For these reasons the appeal was allowed. There being no basis revealed on which the application could properly have been allowed, the application was dismissed. That order did not prevent a further application in proper form.
2. BUTTON J: I agree with Basten JA.
3. HAMILL J: On 14 August 2017, the Court made orders allowing the Crown's interlocutory appeal against a "trial by Judge order" made by Jeffreys DCJ in the District Court sitting at Griffith. The Court also dismissed the application for a trial by Judge order, while noting that this did not prevent a further application from being made in proper form.
4. My reasons for joining in those orders can be stated simply and briefly.
5. The background to this appeal, and the relevant legislation, is set out in the judgment of Basten JA. The legislative scheme allowing for trial by judge alone in New South Wales and elsewhere has been considered in a number of cases decided on appeal. [15] In the present case it is unnecessary to consider those cases or to revisit matters that I have discussed in three decisions at first instance. [16]
6. My assessment, like that of Basten JA, is that the material before the trial Judge revealed no proper basis for making the order. There was insufficient material to conclude that it was in the "interests of justice" to order that there be a trial by Judge alone.
7. There was no evidence tendered on the application. The material consisted entirely of an assertion from the bar table that it "may" be necessary to disclose to the jury that the respondent was in custody in the course of cross-examining one of the principal prosecution witnesses. There was no evidence (or explanation) as to why that may be necessary or the circumstances in which it would be necessary. All that was said was that the witness (who was one of the alleged victims and the estranged wife of the respondent) visited the respondent while he was in gaol (bail refused for the instant offence) and that counsel sought to cross-examine her on the contents of the conversation that occurred during that visit. The details of the conversation were not disclosed and there was much force in the Prosecutor's submission that, in the absence of such detail, it could not even be determined whether the evidence was admissible, let alone that it was necessary to disclose the respondent's custodial status in the course of adducing it. While counsel's reluctance to disclose the details of his defence was understandable, there were procedures that could have been adopted whereby the respondent would not have been prejudiced in his conduct of the trial and the trial Judge placed in a position whereby he could make rulings and determinations relevant to the application.
8. Neither party tendered before the trial judge the Crown case statement (which was before this Court without objection) or the statement of the relevant witness. Nor were submissions made, or evidence adduced, going to the question of whether it was otherwise in the interests of justice to make a trial by Judge order. The countervailing considerations (if there were any) were not addressed. No consideration was given as to whether judicial direction was capable of curing any prejudice that might arise from disclosure that the respondent was denied bail on the charge subject to the trial. In that regard, it is generally the case that disclosure that an accused is in custody in relation to matters outside of those offences charged in the indictment (except where such disclosure is necessary as part of the narrative) will create greater prejudice than disclosure that an accused has not been admitted to bail on the instant charge. That may not be a universal proposition, but it is a situation to which a simple direction to a jury might be directed.
9. A deal was made at the brief hearing in the District Court of the extent to which a local jury would know (or be of the opinion) that persons charged with offences of aggravated break and enter, and assault occasioning actual bodily harm, were usually admitted to bail. This was a matter of speculation and the "concession" said to have been made by the prosecutor was elicited in such a way as to make it a matter of little or no moment.
10. It may be that there are facts and circumstances in the present case that mean that it is in the interests of justice that the respondent be tried by a judge sitting without a jury. However, the material put to the trial Judge (and before this Court) was inadequate both in substance and form. It did not provide a proper basis upon which to make the order.

Endnotes

1. Criminal Appeal Act, s 5F(5).
2. Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1(2).
3. Section 132(4).
4. Section 132(6).
5. (1936) 55 CLR 499; [1936] HCA 40.
6. (2003) 217 CLR 508; [2003] HCA 19 at [23].
7. (1993) 29 NSWLR 589 at 594D.
8. R v Simmons; R v Moore (No 4) [2015] NSWSC 259; 249 A Crim R 120 at [19]-[22].
9. Tcpt, 07/08/17, p 3.
10. Tcpt, p 6.
11. Tcpt, p 7.
12. Tcpt, p 8.
13. Judgment, p 5.
14. Tcpt, p 10.
15. See, for example, R v Perry (1993) 29 NSWLR 589, R v Coles (1993) 31 NSWLR 550, R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86, R v Stanley [2013] NSWCCA 124, Redman v R [2015] NSWCCA 110, RKF v R [2016] NSWCCA 116, Arthurs v Western Australia [2007] WASC 182, Coates v Western Australia [2009] WASCA 142, R v Fardon [2010] QCA 317.
16. R v Simmons; R v Moore (No 4) [2015] NSWSC 259, R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274 and R v Qaumi & Qaumi [2016] NSWSC 1473. 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: 16 April 2018