The provisions of s 132 of the Criminal Procedure Act are in the following 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) 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.
The Criminal Procedure Act was amended by the COVID-19 Emergency Act which commenced on 25 March 2020 and introduced Pt 5 of the Act, entitled "Response to COVID-19 pandemic".
The purpose of Pt 5 is provided by s 353, which states:
353 Purpose of Part
The purpose of this Part is to enable criminal trials in the State to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic.
Part 5 Div 4 and s 365 are both entitled "Judge alone trials". Section 365 is in the following terms:
(1) A court may, on its own motion, order that an accused person be tried by a Judge alone.
(2) A court may make an order under subsection (1) only if-
(a) the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and
(b) if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and
(c) the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone.
(3) This section applies despite any other provision of this Act, including sections 132 and 132A.
McClellan CJ at CL said in Belghar at [110]:
In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantage available to an accused person and the community if reasons for the verdict are available from the trial judge: Markou at [6]-[8]; Arthurs at [76], [92]; see also Rayney at [29], [37]. For my part I would accept that as part of the mix of issues which must be considered the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligation on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie. Trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution.
[emphasis added]
His Honour then went on to expressly reject the proposition that considerations of overall efficiency of the operation of the judicial system are relevant to determining an application pursuant to section 132(1) at [111]:
However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention, but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.
[emphasis added]
McClellan CJ at CL also made the following observations in Belgher which are relevant in the present matter (at [112]-[113]):
112 As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.
113 As Martin CJ remarked in Arthurs, the recent trend in many areas has been to require a decision-maker to provide reasons for his or her decision. The giving of reasons requires the decision maker to consider the evidence, follow accepted methods of reasoning, and express the reasons for the decision in a manner which can be understood and analysed by others. If accepted to be sound, published reasons must serve to enhance confidence in the process of the law. If not sound, they can be challenged and, where relevant error is identified, the decision can be corrected.
Bellew J in R v Sean Lee King [2013] NSWSC 448 at [72], considered the judgment of McClellan CJ at CL in Belghar, and determined that the efficiencies of a judge alone trial did not support a trial by judge order in that case where:
…A trial which is expected to be completed in about 4 weeks could not be described as overly lengthy, and not likely to give rise to the type of difficulties to which his Honour made reference, and which can arise in longer trials....
Basten JA (with whom Button J agreed) observed in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 at [9]-[11]:
9 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.
10 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.
11 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.
[emphasis added]
Campbell J stated in R v McKnight [2014] NSWSC 398 at [9]:
…an applicant for a trial by Judge order need rebut no presumption nor discharge any formal burden of proof. The applicant does bear an evidentiary burden to introduce evidence or argument which engages the statutory discretion. As Chesterman JA said in R v Fardon [2010] QCA 317 at [81] of the Queensland legislation, cited with approval in R v Belghar [2012] NSWCCA 86 by Hidden J at [118] "an accused cannot have a trial by Judge alone for the asking". Moreover, whilst there is no presumption, the discretion must be exercised by reference to the consideration that Parliament has assumed that in the ordinary course a trial for a serious crime on indictment should be by jury: TVM v State of Western Australia [2007] WASC 299.
As Barr AJ (Macfarlan JA and Campbell J agreeing) said in R v Stanley [2013] NSWCCA 124 at [42] and [43]:
42 In deciding whether or not to make an order for trial by judge alone the Court must decide where the interests of justice lie. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. The Court should not assume that either form of trial is more desirable than the other: Arthurs v State of Western Australia [2007] WASC 182 at [75]; R v Belghar at [49]. The interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made: R v Belghar at [96]. An applicant bears no burden of proof. However, the applicant does bear an evidentiary burden. The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46].
43 In weighing the concerns of the applicant the Court must have regard to any means available to allay them. The Court should also bear in mind that the interests of the accused are not necessarily the interests of justice. The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 at [7].
[emphasis added]
The COVID-19 Emergency Act inserted s 365 into the Act. This was discussed by R A Hulme J in R v Kerollos [2020] NSWSC 1758 at [51]-[54]:
51 Ordinarily, the potential availability of a defence of substantial impairment might be persuasive in determining a contested application for a judge-alone trial. However, the coronavirus pandemic continues to disrupt and delay criminal jury trials by the need to wait for test results and by the reduced availability of suitable courts. The COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW) inserted s 365 into the Criminal Procedure Act, empowering the court to order judge alone trials on its own motion. It is notable that s 365 does not include any explicit reference to objective community standards as appears in s 132(5). Clearly, this was to enable more judge-alone trials to proceed until the pandemic is resolved. The present application, however, is for determination under s 132.
52 Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 at [30]-[31] aligned himself with a prior judicial pronouncement that 'the interests of justice also extend to the public interest in the due administration of justice'. He considered in the context of the case before him that the interests of justice include that 'criminal trials should proceed with the least chance of interruption and delay during the current crisis'. Regrettably, restrictions imposed because of the COVID-19 pandemic continue to apply. Notwithstanding some recent relaxations to various aspects of social interaction, this Court continues to have a substantially decreased capacity to list criminal trials and will continue to do so for the foreseeable future.
53 It is not only the potentially available trial dates for the present matter that are affected by the decision as to whether it proceeds with a jury or by judge-alone. Every trial in this Court that proceeds with a jury has an impact upon the available time for future trials to be listed. The Court presently has pending trials with accused persons who have been in custody for four years or more.
54 I am satisfied that the interests of justice in the present case extend also to the interests of everyone involved in seeing it proceed as soon as possible. In this regard, I have in mind those who grieve the loss of Ms Kerollos, witnesses who will be pressed for their best memory of events that occurred more than 18 months ago, and the accused himself. As Wilson J found in R v Hadler at [74], 'a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome'.
The Crown submitted that the present situation of jury trials in this Court is much the same as discussed by Wilson J in R v Camilleri [2020] NSWSC 951 ("Camilleri") where jury trials had recommenced in 2020. Her Honour at [72]-[75] stated:
72 Although, as counsel for the accused pointed out, s 365 - which mirrors s 132 of the CP Act to an extent - does not include a provision that corresponds with s 132(5), it retains in s 365(2)(b) the interests of justice test by which the question of trial by judge alone is to be resolved.
73 It is notable that s 365 is not intended to supplant or replace s 132; by s 365(3) the provision applies "despite any other provisions" of the CP Act, not instead of them.
74 Section 365 was introduced to facilitate the continued ability of the criminal courts to hear trial matters in circumstances where jury trials could not be held because of the public health measures taken to protect the community from a widespread outbreak of COVID-19. The strictness of those measures has recently been eased, and jury trials are proceeding, including in this Court.
75 Since trial by jury is again an available option by which to determine whether an accused person's guilt can be proved to the requisite standard, the greatest attention must be given to s 132 in my view, with s 365 having lesser relevance.
Further, Wilson J at [87]-[89] stated:
87 Thus, whilst I accept as a general proposition that a trial heard by a judge alone is likely to have a greater capacity for flexibility than a trial heard before a jury, that feature does not have such significance that it outweighs the strong interest in a trial involving the application of community standards being determined by a jury.
88 Counsel for the accused raised the prospect that, since the pandemic continues, there is a danger that a jury trial could be disrupted or the jury discharged without verdict because of a juror or jurors becoming ill or, by exposure to an infected person, being obliged to isolate. That is a possibility. However, juror misadventure is a possibility in any jury trial at any time. The lives of jurors continue on outside the court house, and any criminal lawyer will be able to readily call to mind a trial that was affected because a juror fell ill, or suffered a death in the family, or became unavailable to continue to serve for some other, unforeseen, reason.
89 The Jury Act contains provisions to allow a trial judge to deal with juror unavailability and, if illness or other misadventure occurred, appropriate steps could be taken such that, in most instances, the trial could continue. I do not regard the speculative risk of unexpected juror unavailability to be a consideration of such weight as to displace the desirability of a jury determining the s 23A issue.
N Adams J in R v Warren Scott [2021] NSWSC 1004 ("Warren Scott") addressed the suspension of jury trials caused by the pandemic and the backlog that will result at [51] and [53]-[54] extracted below:
51 …The Supreme Court previously suspended jury trials in 2020. When they re-commenced, they did so in a modified way in order to comply with relevant NSW Public Health Orders, including the need for jurors to be a certain distance from each other. When trials re-commenced under these modified conditions, they did so with the associated delay caused by the need for any juror with the mildest of symptoms to take a COVID-19 test and isolate until a result was received. A trial could not resume until that (negative) result was received.
…
53 The effect of s 365 (in relation to an application under s 132) was considered during the previous lockdown in 2020 by Davies J in R v Jaghbir (No 2) [2020] NSWSC 955. At [23] his Honour extracted a portion of the Second Reading Speech to the Emergency Measures Act, in which the Attorney General stated the following:
"The Bill amends the Criminal Procedure Act 1986 to enable a judge to order that a relevant witness can give evidence by having their evidence recorded in advance of the trial, to enable a record of evidence given in the trial proceedings to be admissible in a subsequent trial, to facilitate more judge only trials, and to introduce a general regulation-making power for exceptional circumstances." (emphasis added)
54 Justice Davies considered that the clear intention of Parliament was to facilitate more judge alone trials during the period in which the Emergency Measures were in force (at [24]). His Honour went on to note that any adjournment would have caused a delay of around one year which was considered an unacceptable delay, even taking into account that the accused in that case was on bail in the community (at [28]). Ultimately, his Honour was of the view that, but for the effects of the COVID-19 pandemic, he would have refused the application (at [15]). His Honour concluded at [31]-[32] that:
Having regard particularly [to] what was said by the Attorney-General in the second reading speech to the emergency legislation, it seems to me that it is in the interests of justice that criminal trials should proceed with the least chance of interruption and delay during the current crisis. That means, perhaps, in more cases than would otherwise have warranted it, judge-alone trials.
In my opinion, in the present pandemic, with the risks of a jury trial being aborted, the interests of justice in the present case require a judge-alone trial.
N Adams J also addressed the delay if the trial were to proceed by jury and also the interests of justice at [57]:
57 Having regard to the limited scope of the issues in the trial, the fact that the trial could be conducted by way of AVL as a matter of practical reality, the fact that s 365 of the Act would allow the Court to grant a judge alone trial on its own motion in any event without the need to consider s 132(5) as well as the inevitable delay if this trial proceeded before a jury, I am satisfied that it is in the interests of justice that this trial be heard by a judge alone. To the extent that it is relevant, I would not have arrived at this conclusion but for the current suspension of jury trials and the enactment of s 365 of the Act.
[2]
CONSIDERATION
AN executed an election dated 20 September 2021 and filed on 21 September 2021 that he had sought and received legal advice as to his application for trial by judge alone. LM executed an election under s 132(1) dated and filed on 20 July 2021 that he had sought and received legal advice as to his application for a trial by judge alone.
As the application for a judge alone trial is opposed by the Crown, the provisions of s 132(4) of the Criminal Procedure Act are activated such that the Court is conferred a discretion to make a trial by judge alone order if the Court considers it is in the "interests of justice" to do so. A consideration in the exercise of that discretion is whether the trial will involve a factual issue that requires the application of community standards including issues of reasonableness, indecency and dangerousness. The Court may refuse to make an order where a factual issue requiring the application of such standards exists: s 132(5).
I agree with N Adams J in Warren Scott that there is nothing in the statutory language of s 131 of the Criminal Procedure Act (or s 132 or 132A) which creates a presumption in favour of trial by jury that must be resolved before an order for trial by judge alone can be made: at [44].
I accept the submission of the Crown that some factual issues may remain at trial which involve the drawing of inferences from circumstantial evidence such as whether the deceased was prone and the severity of the force of the assault. The role of the accused in events at the crime scene and infliction of injuries and application of the tape is also a fact for determination.
Those matters conceivably involve the application of community standards for the purposes of s 132(5), although they do not constitute factors strongly pointing to a trial by jury as was discussed, for example, by Wilson J with respect to the partial defence of substantial impairment in Camilleri at [67]-[68].
However, there were significant issues militating in favour of a judge alone trial having regards to the "interests of justice". That expression was discussed by Wilson J in R v Hadler [2018] NSWSC 1151 ("Hadler") at [62].
First, even allowing for the area where inferences may be required to be drawn, there are very limited matters in dispute: Hadler at [41]-[42].
The central issue in dispute is medical causation. That dispute is bifold - whether the acts of the accused in carrying out the joint criminal enterprise (specifically aggravated kidnapping) were a substantial or significant cause of the death of the deceased and is there a reasonably possibility that the death was caused by methamphetamine toxicity level.
Secondly, I do not accept the submissions of the Crown that the medical evidence is not "overly complex" by the standards of medical evidence often encountered by juries. There are some complexities involved in the medical issues.
Whilst in a highly summarised form, the following schedule prepared by the Crown gives a broad indication of the nature of the medical controversies.
Dr Bernard I'ons (Forensic Pathologist who performed autopsy) Professor Johan Duflou (forensic pathologist engaged by defence)
Cause of Death ("COD") = craniofacial trauma ("CFT") with airways obstruction
• Severity of the combined CFT (multiple injuries, some demonstrating use of significant force, a dynamic assault) would likely have caused a reduced level of consciousness / unconsciousness
• Possibility of diffuse axonal injury from assault ("DAI") (microscopic injuries to brain requiring a survival time of at least 30 mins to be detectable) COD: = possible CFT with airways obstruction
• Not suggested that CFT alone was the COD. It is the combination of CFT with airways obstruction However:
• Inability to self-protect airway due to: • No features of the injuries which raise them more than a reasonable possibility as a cause of death due to:
*reduced level of consciousness/unconsciousness i. No indication of significant head injury
*prone position of body causing airways obstruction (with or without the gagging) (there are multiple indications of prone position, including the taping of wrists behind the back, large amount of dirt on anterior thighs and knees, dirt and sand surrounding and in mouth and nasal passages) ii. No indication of significant blood loss
• Prone restraint, particularly when agitated/excited, may lead to prone restraint cardiac arrest iii. No indication of significant aspiration while unconscious
• Airways obstruction to mouth and nose from secretions +/- blood (from CFT) +/- tongue position +/- sand +/- gagging • If shown that the tape did not remain over the deceased's mouth and nose until death, unlikely he died of suffocation/smothering
• photographed taping on both sides of head (and evidence of Det Sgt Moon) demonstrating that there was gagging of the mouth • No specific indications of positional/restraint asphyxia having occurred
• bleeding into mouth from significant frenulum injury • Death due to methamphetamine toxicity becomes a reasonable possibility (see below) in the absence of a trauma-related COD
• nose (fractured) occluded by blood and sand
• absence of aspiration of blood etc into upper airways explicable by prone position or position on back and purge (post mortem)
• Usually are no characteristic findings of asphyxia. Sometimes fine petechiae are present from suffocation (and were here)
Methamphetamine ("MA") toxicity not the COD, although cannot completely exclude it having exacerbated the effects of the CFT and airways obstruction COD by MA toxicity cannot be excluded due to:
• Deaths associated with MA use usually occur in the presence of significant heart disease and there was none in the case of this deceased • The level of post mortem blood MA concentration (0.42mg/L)
• There is no correlation between MA blood concentration levels and deaths solely from MA
Professor Olaf Drummer, Forensic Pharmacologist engaged by the Crown Professor Iain McGregor, Forensic Pharmacologist engaged by the accused
• MA toxicity as a COD is most uncommon
• Most reports of a death from use of MA usually occur in the presence of significant heart disease
• There is no correlation between level of blood concentration of MA and death
• The effects of the assault may have been elevated by the MA - at most a minor contributory role in the death • The deceased's level of blood concentration of MA is consistent with the cause of death being drug-induced toxicity, although other causes cannot be ruled out.
• Cannot absolutely rule out a contribution of a fatal cardiac event that may have been exacerbated by the presence of MA in the context of CFT with airway obstruction. The context is important - death occurred in the context of an assault and restraint of the deceased • The high blood concentrations of methamphetamine, amphetamine and THC may have combined with the stress of restraint, struggle and high ambient temperature to produce cardiac arrhythmia and sudden cardiac arrest.
• Death independent of trauma not a reasonable possibility
• GHB most likely not recently used by the deceased and could not be a contributor to his death
• Cannabis is unlikely to be a significant contributory factor to the death
[3]
I also accept the submissions of the accused that the availability reasons in this matter (and in that context) is a consideration pointing to a judge alone trial as discussed in Belghar at [113].
Attention must also be given to the provisions of s 365 of the Criminal Procedure Act which, as was stated in Camilleri (at [72]), mirrors s 132 "to an extent" but does not include a provision as to s 132(5), even though the "interests of justice" test is relevant pursuant to s 365(2)(b).
As mentioned, the Crown submitted that the circumstances presently prevailing in the community, vis-à-vis the emergency caused by the COVID 19 pandemic (see s 353) are similar to those discussed in Camilleri because jury trials are again an available option, and hence the focus should be upon the provisions of s 132 (see Camilleri at [75]).
Drawing parallels between the provision existing at the time of Camilleri is a difficult and ultimately an unproductive process particularly in the light of the unpredictable nature of the pandemic. It is true jury trials have recommenced in this Court but I consider that the most important consideration in the present context is that discussed in R v Jaghbir (No 2) [2020] NSWSC 955 and Kerollos, namely, the potential for a significant delay in the trial if it were to proceed by a jury trial and the impact upon other jury trials.
Even accepting the Crown estimate for the trial (being 5 to 10 days irrespective of the trial being judge alone or jury), there will, in my view, be a significantly greater delay in the trial being heard by a jury than by judge alone in the circumstances presently prevailing after the recommencement of trials. This consideration has even greater force by virtue of the accused being juveniles.
Further, and as noted in Kerollos, the omissions of the s 132(5) considerations from s 365 was designed to enable more judge alone trials to proceed until the pandemic is resolved, although the applications for a judge alone trial are made under s 132 and must be delivered under that provision (Kerollos at [51]-[54]).
In all of the circumstances, I am satisfied that it is in the interests of justice that this trial be heard by judge alone.
[4]
ORDERS
Pursuant to s 132(4) of the Criminal Procedure Act the Court orders that the trial of AN and LM on the amended indictment be heard by judge alone.
[5]
Amendments
20 May 2024 - Paragraph [2] - anonymised names.
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Decision last updated: 20 May 2024
In the written submissions filed on 21 September 2021 on behalf of AN by Clive Steirn SC the following submissions were, in summary, made:
1. The factual matrix contained in the Crown case based on the doctrine of joint criminal enterprise was "substantially accepted" by AN for the purposes of the present application.
2. What remained in dispute was the cause of death. There was a dispute about Dr I'Ons opinion as to whether the direct cause of death was craniofacial trauma with airway obstruction and the opinion that the deceased was in a prone position whilst restrained. There was also a dispute as to whether a contribution to the death of the deceased was existence of "a sustained attack" and the use of "significant force".
3. Professor Drummond did not substantially disagree with the Duflou report. Thus, the issues in the trial are joined in a narrow and specific aspect of the Crown case as to the cause of death with opposing medical experts.
4. Where the issue for determination is a narrow one based on medical evidence, it is in the interests of justice that that matter be tried in a judge alone trial. The Crown was obliged to prove the cause of death of the deceased based on medical evidence.
5. This is particularly the case in the present matter as both of the accused "substantially" accepted the factual matrix contained in the Crown case (based on the doctrine of joint criminal enterprise).
6. Given the concessions by the accused as to factual issues, the limiting factors set out in s 132(5) of the Criminal Procedure Act militating against a judge alone trial are not engaged.
7. At the time of this submission, the kidnapping charge did not appear on the indictment as the amended indictment had not been lodged. Nevertheless, AN relied upon his intention to enter a plea to the kidnapping charge which, as noted, was subsequently entered.
8. Relying on R v Belghar [2012] NSWCCA 86 ("Belghar"), AN relied upon the following additional factors as favouring a judge alone trial:
1. the efficiencies available from a judge alone trial and the advantage available to an accused person and the community if reasons for the verdict were available from the trial judge;
2. the likely longer length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called;
3. the obligation on prospective jurors to spend a considerable time away from their normal activities, including their employment, with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie;
4. trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution.
1. Reliance was placed upon s 365 of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) ("COVID-19 Emergency Act"). In that respect, emphasis was placed on the determination being based on the interests of justice.
2. By reliance upon R v Coleman [2020] ACTSC 97 (per Elkaim J) at [41] and R v Johnson [2020] NSWDC 153 ("Johnson") at [21]-[25] per Grant DCJ, COVID-19 Emergency Act reflects an intention of the legislature that the business of the court is to continue.
3. There is an informed agreement from AN for a judge alone trial. Reliance was also placed upon the factors relied upon in Johnson which included the shortening of the state of suspense hanging over the head of the person who was presumed to be innocent and that an adjournment may result in an unacceptable delay.
On 7 October 2021, AN made further submissions, largely responsive to the Crowns submissions to which I will refer below as follows.
Senior counsel accepted the principles relating to murder stated by the Crown, namely, that the prosecutor must prove the acts of the accused pursuant to a joint criminal enterprise were a substantial and significant cause of death (a requirement which did not extend to the accused having to prove that the acts of the accused were the only, most important or only important cause).
AN repeated a submission made in the written submissions of 21 September 2021 arising from the plea to the kidnapping charge as follows:
Further, we note the intention of the Crown to present further alternative count in relation to a charge of kidnapping in circumstances of aggravation pursuant to Section 86(2) NSW Crimes Act. We are instructed that the accused will enter a plea of guilty to the alternative charge once the indictment is presented. It will be noted that the facts and circumstances in relation to the alternative charge of kidnapping with aggravation are substantially the same as the facts relied upon by the Crown in relation to the charge of murder, absent the disputed evidence as to cause of death. Self evidently, this brings the only issue in dispute into sharp focus and therefore better suited for a judge alone trial.
In addition to the factual disputes earlier described, AN took objection to the following component of the Crown case statement:
Above the left ankle and parallel with the sole of the foot was a well demarcated pale area 30mm in width probably corresponding to an area of packing tape binding and indicating, in the opinion of the forensic pathologist Dr I'Ons a degree of tightness of that binding and therefore immobilization, potentially compromising the deceased's ventilation.
An objection was also taken to another component of the Crown case containing what was submitted was a hearsay assertion by the co-accused, LM, to his parents, which was not in furtherance of the joint criminal enterprise relied upon by the Crown. That passage was as follows:
In an intercepted phone call on 9 June 2020 at 15:37 between Miles (in custody) and his parents about only having two days to receive the autopsy report, Miles said:
I reckon it's going to be suffocation, but that's all good because that means um his death was inadvertent, so it will get dropped from murder.
It was disputed that AN had failed to provide a "version of events". The Crown had accepted that AN had admitted "the inculpatory representations made by him to his father at the time of his arrest". This includes AN's "acceptance and participation in the joint criminal enterprise as set out in the balance of the Crown case statement supporting the foundations charge of aggravated kidnapping".
AN did not accept that the disputed medical evidence as to the cause of death had any relevance to the application for a judge alone trial. The issue in relation to cause of death founds the very reason for the application for a judge alone trial. The determination as to cause of death forms no part of this application. The cause of death is a single issue which remains in dispute and which will be determined by the Court during the course of the trial which will follow, irrespective of whether the trial is by jury or by judge alone.
AN filed a further submission on 4 November 2021. In that submission, AN "accepted the Crown facts as the [SOAF]" and stated there were "no disputed facts outside of the medical controversy".
As to the documents referred to in the SOAF there was no objection to the documents forming part of the agreed facts.
Nevertheless, AN submitted that objection was taken to "pars 35-37 of the Crown case statement" and "the hearsay assertion" by LM (see [16] of this judgment).
AN submitted that the accused did not accept "the facts" as it related to the charge of murder given the cause of death is in dispute. However, it was accepted that the Crown facts, so far as it relates to the foundational offence to which a plea of guilty has been entered, are relevantly before the Court. In oral submissions, Mr Steirn accepted that the SOAF would apply to both counts in the amended indictment.
It was submitted that whether or not either of the accused would give evidence at the trial was an irrelevant consideration.
The estimate for the trial was three weeks for a jury trial and five to seven days for a judge alone trial.
Submissions for the Crown
Whilst the Crown had originally submitted that the acceptance by the accused of the factual matrix in the Crown case was equivocal by the use of the words "substantially accepted by the accused", it was acknowledged that there was acceptance of the SOAF and the objection to the tender documents in the SOAF had evaporated.
However, the Crown submitted that the tribunal of fact would still need to draw inferences which are not the subject of the agreed facts in relation to whether the deceased was prone and the severity of the force of the assault. The role of LM in events at the crime scene and infliction of injuries and application of the taping is also a fact for determination.
These considerations are relevant to but independent of expert opinion. Whilst the experts may comment on aspects of the crime scene, the Tribunal of fact will still be invited to draw inferences in relation to the positioning of the deceased, particularly concerning the compromise of his airways and the cause of death.
Furthermore, it is still not known whether one of the accused will give evidence about what exactly transpired at the crime scene and that necessarily raises issues of credibility.
AN had not provided a version of events other than inculpatory representations made by him to his father at the time of the arrest. No version was given by AN about what transpired at the crime scene and the resulting injuries sustained by the deceased including the application of tape to the body.
The account given in his interview to police is inconsistent in a number of respects with participation in a joint criminal enterprise. His defence response was that he did not take place in a joint criminal enterprise.
The issues to be determined by the Tribunal of fact are, therefore, much wider than has been presented by counsel for both accused. The determination of such issues will necessarily involve the drawing of inferences from circumstantial evidence as well as assessments of credibility and reliability should either or both accused give evidence. Such determinations and assessments are arguably more properly made using the collective wisdom of a jury of twelve.
Whilst the causation issue involves consideration of expert opinions from Forensic Pathologists and Forensic Pharmacologists/Toxicologists, the evidence cannot be described as overly complex. The evidence is at a level of complexity that juries commonly encounter in criminal trials in this Court.
The prosecution must prove that the acts of the accused pursuant to the joint criminal enterprise were a substantial or significant cause of death: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 ("Royall") at [411]-[412]. This does not require the prosecution to prove that the acts of the accused are the only cause, the most important cause or even the only important cause of death: Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11.
The Crown submitted that the areas of controversy in the medical evidence are not beyond the capacity of ordinary people to grapple with. They are not so technical or complex that a jury would not be able to properly consider the evidence.
Whilst the issues are wider than simply the causation of death, the trial estimate remains a maximum of four weeks.
It was accepted that a jury trial may be longer than a trial by judge alone. It was not accepted however, that a jury trial would be three times greater than a trial by a judge alone. Overall, the Crown estimate as to the length is that the evidence would be completed within 5 to 10 days whether it be trial by judge alone or trial by jury.
It has not been shown to be in the interests of justice for the court to grant the application and, accordingly, the application for trial by judge alone should be refused.