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[2013] NSWSC 729
Supreme Court of NSW
2013-06-03
Harrison J
Original judgment source is linked above.
Judgment 1HIS HONOUR: The accused is due to stand trial commencing on 17 June 2013 on an indictment charging that she murdered her daughter Kiesha between 10 and 18 July 2010. She was arraigned on that charge on 2 May 2013 and pleaded guilty to manslaughter but not guilty of murder. The Crown has not accepted that plea in satisfaction of the indictment. On 8 May 2013 the accused filed an application pursuant to s 132 of the Criminal Procedure Act 1986 for trial by judge alone. She relies upon affidavits sworn on 8 May and 28 May 2013 by her solicitor. The application is opposed. 2Section132 is in the following relevant terms: "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)..." 3It is convenient and efficient to observe that s 132(4) is the principal provision requiring consideration in the circumstances of the present application. Some attention is also given to s 132(5).
Background 4The accused and Christopher Weippeart were in a de facto relationship for a period from approximately 2002 until 2005. The accused gave birth to a son on 6 February 2003. He died from sudden infant death syndrome on 23 March 2003 aged six weeks. The deceased was born on 22 April 2004. 5On 4 July 2005 the deceased was admitted to Mt Druitt Hospital overnight for observation with a bite mark. The accused was subsequently charged with assault upon her and pleaded guilty. She was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for 12 months. The accused and Christopher Weippeart separated after this offence. The deceased went from hospital into the custody of Mr Weippeart and his mother, and then into the care of the Department of Community Services. 6Following the separation, the accused formed a relationship with Robert Smith in 2006. He was introduced to the deceased during the course of DoCS approved visits. The deceased was returned to the care of the accused on 23 December 2006. Thereafter the accused and Smith lived together with the deceased in a unit at Mt Druitt. Christopher Weippeart had little involvement in raising the deceased. The accused and Smith had two children of their own born respectively on 9 February 2008 and 7 July 2010. The deceased occupied one bedroom of the unit while the accused and Smith shared the other bedroom with their two children. 7On 1 August 2010 the accused called "000" to report that the deceased was missing from the home. An extensive police operation was undertaken in an attempt to locate her. On 22 April 2011 the accused and Smith were arrested leaving a site in bushland at Shalvey at which the buried remains of the deceased were subsequently discovered. The disappearance of the deceased had attracted considerable media attention and publicity in the meantime. That attention continued after the accused and Smith were arrested and charged, and has in fact continued right up until the present. 8It is the contention of the accused that the media coverage and publicity, as well as the extensive dissemination of material on the Internet, have been so intense and so pervasive that no prospective juror is likely to have been uninfluenced by it and that any jurors who may be empanelled will be incapable of withstanding the temptation to refer to it. It is inherent in that contention that jury directions from me will not be adequate or sufficient either to prevent impermissible activity by jurors or to eradicate any preconceptions and prejudices that they may already have acquired. The accused is concerned that a fair trial by a jury cannot be achieved in the circumstances. 9In that setting, the accused articulates in summary the following matters in support of her application. They are as follows:
The legislative framework 10Section 132 commenced on 14 January 2011. It was introduced to remove the former veto power held by the prosecution. Under the new provision, if the prosecutor does not agree to an accused's request for a judge alone order, the Court may make the order "if it is in the interests of justice to do so". In his Second Reading Speech, the Attorney-General said this: "The bill further amends the Criminal Procedure Act 1986 to implement a new system for determining when a trial should proceed before a judge sitting alone without a jury. Section 132 of the Criminal Procedure Act 1986 allows the accused person in criminal proceedings to be tried by a judge alone if the judge is satisfied that the accused has sought legal advice in relation to the election and the Director of Public Prosecutions consents to the making of the election. The Chief Judge of the District Court proposed in late 2009 that the Director of Public Prosecution's veto power be removed from s 132 by allowing a court to settle the dispute if the prosecution and defence cannot agree on the issue of trial by a judge alone. Judge-alone trials are appropriate in a limited number of circumstances. For example, they may be appropriate where there are concerns that cannot be overcome regarding pre-trial publicity, or where the evidence of the trial is likely to be highly technical.'' 11Prior to the introduction of this legislation, if the prosecutor did not agree to the making of a judge alone order, an accused's only recourse was to apply for a permanent stay of the proceedings. This was rarely successful because the courts tended to be of the view that the prosecution's decision not to agree to an order being made was a matter of prosecutorial discretion with which the courts should not interfere. In R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 at [16], Spigelman CJ said: "[16] This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell. (See Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D 'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)" 12These authorities are now of limited assistance in the light of the particular terms of the new provisions. 13The effect of the new provisions was considered at length by McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1. In that case, the Crown appealed against the decision of Solomon DCJ to grant a trial by judge order as a result of the possible prejudice flowing to the accused because he was Muslim, he was charged with an assault on a female family member and because the Crown asserted that he acted as he did because he held "antiquated" views about women. In allowing the Crown appeal, the Chief Judge considered the effect of the words "in the interests of justice" in the context of an application for a trial by judge order. His Honour referred to the decision in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, where the issue had been considered in respect of civil trials. The effect of the decision in Pambula Hospital was that, before a jury should be dispensed with in a civil trial, it was "necessary to show grounds which are particular to the case in hand." His Honour was of the opinion that the legislation did not create a presumption in favour of a trial by jury. His Honour said the following at [96]: "[96] This appeal raises questions of fundamental importance which the divergence of views in previous decisions confirms are not readily resolved. Although s 131 provides for trial by jury 'except as otherwise provided', I do not think that the section has the effect of creating a 'presumption' that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a 'presumption' of trial by jury is displaced. Each mode of trial has its particular characteristics and, accordingly, depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a judge-alone trial rather than trial by a jury. Of course, absent an application by an accused person, the default position will be that the trial must take place with a jury. And, no doubt, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople. Subsection (5) acknowledges this consideration. However, I see no reason why the legislation otherwise requires particular weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers it is in the interests of justice to make the order." 14In agreeing with the orders proposed by his Honour, Hidden J in Belghar commented as follows at [118]: "[118] I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in subs (5). To adopt the words of Chesterman JA in Fardon, an accused cannot have a trial by judge alone 'for the asking'." 15There have been several other cases since Belghar both in New South Wales and elsewhere. These are referred to in some detail later in these reasons. It is important in advance of that, however, to consider at least some of the material to which the accused has directed attention and with respect to which she has raised her current concerns. The existence of this material, and its ready accessibility to members of the public both now and in the past, is not in dispute.
The offending material - some examples 16The following material became part of the evidence before me in this application. It forms part of the several annexures to the first affidavit of the accused's solicitor. 17Annexures "A", "B" and "C" to the affidavit contain newspaper articles and photographs from the www.news.com.au website. From this material, it is apparent that many articles about this matter have been published in hard copy in at least The Australian, The Daily Telegraph, The Sunday Telegraph, The Advertiser, The Sunday Mail, The Messenger, The Herald-Sun, Perth Now and The Courier Mail. These articles have been published between the time of the deceased's disappearance in August 2010 and May 2013. The same articles have appeared electronically on the www.news.com.au website. There are also 144 photographs posted on the www.news.com.au "Galleries" link. 18Annexure "D" to the affidavit contains 96 newspaper articles published in hard copy in The Sydney Morning Herald (and other newspapers published by Fairfax Ltd). These are all available on the Internet. Annexures "E" and "F" to the affidavit contain articles, or news and radio items, from the ABC News website. 19Annexure "G" to the affidavit contains the following:
Submissions 32The accused has expressed a desire to be tried by judge alone. She is of the opinion that her trial would be prejudiced if she were to be tried by a jury. Her opinion is one of the considerations to be taken into account in determining whether a "trial by judge" order should be made: R v Belghar at [99], [105] - [106]); Arthurs v The State of Western Australia [2007] WASC 182 at [79] - [80]. 33The accused has also submitted that it is likely that a member or members of the jury will have seen, and already formed an adverse view of the accused from, the extensive publicity this matter has received in all forms of the media and particularly the discussion sites on the Internet. The evidence relating to the number and nature of the Internet hits in respect of the accused and the death of the deceased is too voluminous to summarise. However, it is apparent from the samples of this material that the discussions on the Internet have a number of different (but all prejudicial) themes relating to the accused. They appear to be, or at least to include, the following:
Consideration Pre-trial publicity 52The uncontested evidence in this case shows that the events giving rise to the charges against the accused and Robert Smith have attracted considerable publicity. That has not been limited to the traditional news media outlets but has also extended to electronic publicity in the form of Internet posts and on-line exchanges. These questionable sources of (so-called) information thrive in circumstances and at a time in our development in which everybody must be taken to have unlimited access to them. They survive beyond the range of any appropriate regulation or monitoring capable of ensuring either their accuracy or their reliability. Their authors remain anonymous and unaccountable: their motives are unknown and often manifestly mischievous or malevolent. Regrettably in very many instances the ability of the authors of these questionable publications to express rational views about anything at all cannot be known or assessed and certainly cannot ever be assumed. The material referred to already in this case only serves to confirm and reinforce these concerns. 53Mainstream media outlets have traditionally taken an interest in criminal trials. They attract publicity and they receive it. It is often difficult to determine whether or not it is only sensational cases that are reported or whether it is only the reported cases that become sensational. I make that observation in the context that very little, if anything, that falls for consideration by courts and juries in the criminal justice system is novel, surprising or unique. Each case may be different in detail but few cases ever break entirely new ground. 54An appreciation of these matters is of importance in the present case. The accused is concerned that so much uncensored and inaccurate material has escaped into the public domain that she cannot be guaranteed a fair trial unless at least a trial by judge order is made. It is inherent in this proposition that it will not be possible to craft directions for jurors that will be adequate to eradicate or neutralise the possible but unknown consequences that might flow for the accused if any of this extraneous material is factored consciously or even unconsciously into their final decisions. 55McHugh J referred to this in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425 as follows: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong'." 56Ms Manuell SC for the accused cautions against placing any reliance upon these or similar remarks as they were made in a different factual and legislative context. Although I accept the accuracy of that submission, it seems to me that the applicability of his Honour's remarks is not accordingly constrained. The theory and practice must be that for as long as juries remain as part of the criminal justice system, their utility and reliability in general terms must be taken as given. Although some overseas jurisdictions take a somewhat different approach, there is no way of ever knowing whether or not a judge's directions have been followed by any or all jurors in a particular case, or even whether they have been understood. It follows as a matter of policy if not logic that, subject to rights of appeal, directions to juries by judges are taken to be adequate and sufficient to guide jurors to determine issues of fact in accordance with their oaths and according to law. 57The Crown has submitted that any prejudice arising from the existence of the material referred to by the accused can and would be cured by judicial warning. It is inherent in that submission that some prejudice will or may flow from the existence of this material at large in the community in the ways that the accused has emphasised. Indeed, the Crown accepted in terms that some of the material was both damaging and unjustified. However, the Crown relies upon a line of authority, all predating s 132 of the Act, in support of its contention that any consequent prejudice can and should be cured by judicial direction: see, for example, Gilbert at 425; R v Milat (NSWCCA 26 February 1998, unreported); R v Bell (NSWCCA 8 October1998, unreported); Long v R [2002] QSC 054; (2002) 128 A Crim R 11; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185; R v Jamal. 58These issues and the need constantly to monitor and refine directions that have traditionally been given to juries in such circumstances were helpfully referred to by Bellew J in R v King at [56] - [61] as follows: "[56] The potential impact, upon a criminal trial, of articles published on the Internet has been the subject of judicial observation. In R v K (2003) 59 NSWLR 431 Wood CJ at CL said (at 448; [80]-[82]): 'The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology. It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve. It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the Courts to place effective restrictions on the publication of their own proceedings is severely limited...' [57] Subsequently, in a paper entitled 'The Internet and the right to a fair trial' (2005) 29 Crim LJ 331 Spigelman CJ observed: 'The right to a fair trial is protected by numerous specific practices and rules that have developed over the course of centuries of practical experience involving adaptation to changing circumstances in accordance with the classic common law process. The internet is only the most recent technological challenge requiring a new course of pragmatic adaptation of our procedures.' [58] Although, as Wood CJ at CL observed, the powers of the court to limit the availability of material published on the internet are minimal, some practices have been adopted which form part of the 'course of pragmatic adaptation' of the court's procedures to which Spigelman CJ referred. One is the practice of trial judges, at the commencement of any trial, to direct the jury that they are prohibited from undertaking any research, or making any enquiry, through the internet, in relation to any aspect of the trial, be it the identity of the accused, the identity of any person named in the course of the evidence, or a variety of other matters. In this regard Spigelman CJ said (at 334): 'Model instructions for the jury have long contained references to the jury not to conduct their own research. Many of them now contain express references to searching the internet as well as refraining from using other reference material such as dictionaries.' [59] Needless to say, directions in these terms will be given to the jury at the commencement of the accused's trial. [60] Further, and in light of the submission as to the publication, on the internet, of the fact that the accused was on bail for offences of violence at the material time, it is also relevant to note that in K (supra) Wood CJ at CL observed (at 446) that there have been instances in the past in which the fact that a jury member had knowledge of past convictions, or of alleged criminal behaviour on the part of an accused person, had not been regarded as being sufficient to establish bias (see R v Booth; R v Box [1964] 1 QB 430; R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56). [61] Moreover, the Parliament has seen fit to enact s 68C of the Jury Act 1977 which renders it an offence for any juror to make an enquiry for the purpose of obtaining any information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions. A reference to the provisions of 68C will necessarily be incorporated in the directions to which I have referred which will be given to the jury at the commencement of the accused's trial. Such directions will also include a direction concerning the obligation of all members of the jury to decide the case solely on the evidence. All of these directions will be repeated at appropriate stages in the course of the trial, as well as in the summing up." 59Perhaps one of the clearest statements of support for the integrity of juries that have been assailed by a barrage of offensive material leading up to the trial is to be found in observations made by Mason CJ and Toohey J in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (1987) 164 CLR, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v The Queen, we stated (16) [1989] HCA 28; (1989) 167 CLR 94, at p 99; see also Reg v Von Einem (1990) 55 SASR 199, at p 211: 'But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg v Hubbert (1975) 29 CCC (2d) 279, at p 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'' To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge." 60Statements such as these are both authoritative and persuasive. 61A further matter of relevance in this case appears to me to flow from the particular nature of the material to which the accused understandably takes objection. It will be apparent that much of what appears on the Internet is so extreme and so vile that on one available view it says more about those who are responsible for the material than it does about the accused. The system within which we operate places great store in the intelligence and the common sense of jurors and in the importance of their individual and collective wisdom. No proper direction to a jury could ever be expected to draw attention to the particular articles and opinions that have been disseminated about the accused. However, general directions to juries that they must disregard anything and everything that they might have read or heard could permissibly be cast in terms that unequivocally and unambiguously denounced such material as dangerous and inflammatory. In the circumstances of this particular case, there is considerable scope for the parties' assistance and input into the width and content of any such directions. That is important because too much emphasis upon the nature of the material could create a curiosity that the direction is intended to discourage. I consider that appropriate directions can be crafted to accommodate the accused's concerns, appealing directly to the jury's assumed common sense and experience of life. 62It will be apparent that I do not consider that it is in the interests of justice to make an order for a judge alone trial upon the basis of the potential for prejudice that exists as the result of pre-trial publicity or the potential for intra-trial access by jurors to such material. The interests of justice are not limited to alleviating the concerns of the accused. The interests of justice in the wider sense encompass, particularly in this case, the need to recognise the robustness of the system of trial by jury and its ability to withstand even the most irrational and suspect musings of faceless people intent on mischief. 63The Crown contended that the interests of justice permitted me to examine whether or not the accused contributed to the nature and the extent of media coverage that developed. I need to make it clear that for my part I do not accept that the extent to which the accused may herself have contributed to the publicity and attention that her case has attracted is a relevant factor to be taken into account in assessing whether pre-trial publicity has diminished or eliminated the prospect of her receiving a fair trial. That argument was developed by the Crown in the following way. 64The accused initially claimed that the deceased had disappeared from her home. That became a news story all of its own and attracted considerable media attention. Much has been written about the accused's distraught and emotional presentation in front of television cameras when this story broke. Her public appeals for the return of her daughter were given wide coverage in electronic and print media. The accused's initial false report to the police resulted in an extensive police investigation that included the involvement of volunteer members of the public in search of the deceased. There was an understandable public backlash when this presentation was eventually found to be false and the accused has endured the product of public disaffirmation of her duplicity ever since. 65Whatever may be said about this conduct on the part of the accused, which the Crown wishes to characterise as false and misleading, it does not in my view reliably inform the question of whether or not it is in the interests of justice to proceed to a trial by judge alone. If it were otherwise the current inquiry would invite an examination of the truthfulness and reliability of everything that has been published or shown concerning the accused that she is fearful will poison any potential jury. That cannot have been intended. The preferable and only manageable approach is to treat all extra-curial publicity in the same way, whether true or false, and whatever may have been its cause or its source. It is inherent in the accused's application that she is harmed as much by lies as she is by truth. There is no benefit to be achieved in seeking out the difference. There is correspondingly no benefit to be achieved by ascribing blame for the publicity that is now a sad and irremediable fact of life in this case. The potentially distressing nature of particular evidence 66In my opinion the matters raised by the accused can be easily dealt with in ways that do not produce an injustice to the accused and without the risk of an unfair trial. These days perhaps more than at any time in the past, members of the public are subjected to distressing images and depictions of death and injury to all manner of individuals in domestic settings and as the result of military conflicts. The Internet is, quite apart from the subject matter of this case, replete with troubling and disturbing material. Although it is important not to burden or overburden jurors with distressing material, including photographs of autopsies or mistreated corpses, especially of children, I think it is a mistake to underestimate the capacity of modern adults to deal with such images. It has to be borne in mind that courts have always had to take account of the line between substantial probative value and potential prejudicial effect. That includes the need to filter all but the most salient and relevant aspects of otherwise troubling evidence. 67As blunt as it may sound, the accused faces serious charges. The events that give rise to the charges involve a series of disturbing allegations. The accused has admitted that she caused the death of the deceased and that she was concerned in the disposal of her body. On one view that series of admissions may, and probably will, foreclose the need to examine material that might otherwise have been important. I specifically enquired of the Crown whether potentially disturbing material could be excluded altogether. His indication, which I do not criticise, was that it could not. 68There will be a need in this case for the jury panel in waiting to be warned that the case may involve disturbing material that ultimately selected jurors will inevitably have to examine. Once again, the traditional methods of offering potential jurors the opportunity to raise any particular concerns that they may have at an early stage, in aid of a request to be excused from duty, will be adopted in this case. There have been many disturbing murder trials in this jurisdiction and elsewhere but that is unfortunately the nature of the process. If an objection is ultimately to be taken to the tender of specific evidence at the trial, upon the basis that its potential effect upon the jury adverse to the interests of the accused is disproportionate to its value as evidence proving or tending to prove a fact in issue, it can be dealt with on a case by case basis at the time. 69I note that in forming my views about this aspect of the application I have not been asked to view any of the material that arguably falls into the category about which the accused complains. The SIDS material 70This material is no more or less than a sub-category of the wider set of publicised material. It is in a slightly different category to the extent that evidence concerning the death of the accused's son is specifically inadmissible. In my view any concerns about publicity attending the death of the accused's son, and the suggestion that his death was examined as potentially suspicious despite earlier conclusions that it was not, can and should where necessary be dealt with by an appropriate direction from me. The potential for the application of objective community standards 71Present indications are that, having regard to the fact that the accused has pleaded guilty to manslaughter, the central issue at the trial will be whether or not the accused performed the act that killed the deceased with either an intention to kill or to cause grievous bodily harm or with a reckless indifference to human life. According to the Crown, it will be central to this determination that the act committed by the accused that caused the death was different to and more damaging than the act to which the Crown anticipates the accused will admit. There is likely to be competing medical evidence in support of these different versions. 72The Crown submits that if its evidence is to be considered properly by the tribunal of fact, it will involve an assessment of whether or not what the accused did evidences an intention or state of mind beyond that required for the crime of manslaughter. The tribunal of fact will necessarily be asked to consider the physical consequences for the deceased and to assess what was the relevant intent of the person who performed them. The Crown contends that such an exercise is very much an application of community standards and the ordinary experiences of life. The Crown submits, with particular reference to s 132(5) of the Act, that they are matters that are appropriate to be determined by a jury. 73In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Heydon J considered that the question of whether or not an accused person had a particular intent was an example of an issue requiring for its determination the application of community standards. His Honour said this at [95]: "...Thus Lord Devlin saw the jury as being for some purposes 'the best judicial instrument'. A clear illustration of this role of the jury is seen when the jury decides whether the facts it finds answer certain legal criteria. That phenomenon is recognised by s 118(6) of the Criminal Procedure Act, for the court may refuse to order trial by judge alone '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'. Other examples of factual issues requiring the application of 'objective community standards' include whether behaviour was 'threatening, abusive or insulting'; whether conduct was 'dishonest', a matter to be decided by the jury 'according to the ordinary standards of reasonable and honest people'; whether an assault is 'indecent'; and whether an accused person had a particular intention." 74The link between decisions concerning the existence or formation of a particular intent and the application of community standards was also discussed by Barr AJ in R v Stanley [2013] NSWCCA 124 at [56] - [59] with a conclusion as follows: "[59] I accept that the fact alone that community standards must be applied in the resolution of factual issues does not mandate trial by jury but, as subs (5) makes clear, it is a circumstance in which the jury may be considered to be the superior tribunal of fact." 75For my part I find it difficult immediately to accept that cases concerned with the assessment of whether or not a particular individual had formed or retained a particular intent allegedly relating to the commission of some charged act necessarily or even arguably "involve a factual issue that requires the application of objective community standards". The question, for example, of whether or not an act was committed with such force that it bespeaks or evinces a particular intention is undoubtedly a question of fact. The force of the suggestion that there is a corresponding and simultaneous requirement to apply some objective community standard in undertaking the assessment of that factual issue is not obvious to me. I note with some interest that the only citation provided by Heydon J for the proposition that "whether an accused person had a particular intention" was an example of a factual issue requiring the application of objective community standards was at note [86] to his Honour's judgment in these terms: "[86] Buxton, 'Some Simple Thoughts on Intention', [1988] Criminal Law Review 484 at 495: '[R]ecourse to shared values and assumptions about the implications of actions and the circumstances in which those actions occur may be a safer guide to culpability than analytical deductions from a generalised verbal definition'." 76In Belghar, McClellan CJ at CL expressed the view that the determination of intention in the particular circumstances of that case did not involve the application of community standards. Latham J referred to the competing views about it in R v Dean [2013] NSWSC 661 at [58] as follows: "[58] The Crown in King relied upon this aspect of Heydon J's judgment and the Crown relies upon it here. It is right to acknowledge that Justice Heydon's observation in this respect was not endorsed by any other member of that bench and that McClellan CJ at CL accepted that the issue of intention did not involve the application of community standards in the circumstances applying in Belghar. Like Bellew J, I am not persuaded that the issue of intention can never involve the application of objective community standards. I also note that the basis of the decision in Belghar was that the trial judge determined the application in the absence of appropriate evidence and without considering whether such prejudice as was found to exist could be neutralised by directions." 77Having regard to the view I have otherwise formed, it is strictly unnecessary to decide the point. I accept cautiously that it could not be said that the issue of intention could never involve the application of objective community standards. It does not, however, appear to me that this is such a case.
Conclusions 78In my opinion it is not in the interests of justice to make the order sought by the accused. Accordingly the application for a trial by judge order should be dismissed.
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R
Abrahams
[2007] WASC 182
[2002] QSC 054
[2003] QCA 124
[2002] QSC 54
[2003] QCA 77
(2008) 232 CLR 438
(2000) 201 CLR 414
(1988) 14 NSWLR 387
(1992) 173 CLR 592
(2008) 72 NSWLR 258
(1989) 167 CLR 94
(2003) 59 NSWLR 431
(2005) 29 Crim LJ 331
(1990) 55 SASR 199
[2008] HCA 8