Walsh v R [2014] NSWCCA 252
R v Belgar [2012] NSWCCA 86
Source
Original judgment source is linked above.
Catchwords
Walsh v R [2014] NSWCCA 252
R v Belgar [2012] NSWCCA 86
Judgment (7 paragraphs)
[1]
Judgment
HER HONOUR: Lauren Batcheldor stands charged with the specially aggravated kidnapping of Matthew Digby and with his murder. The events giving rise to those charges occurred between 22 January 2010 and 25 January 2010. The accused was previously tried jointly with Richard Walsh. Walsh was alleged to have killed the deceased; Ms Batcheldor was alleged to have been complicit in the murder. Each was found guilty of both charges. The Court of Criminal Appeal subsequently quashed Ms Batcheldor's conviction and ordered a new trial. Walsh's appeal was dismissed: Batcheldor v R; Walsh v R [2014] NSWCCA 252.
Ms Batcheldor's new trial is listed to commence on 21 September 2015. This judgment determines her application for an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) that, on this occasion, she be tried by a judge alone.
The applicant required leave to make the application as it was made less than 28 days before the date fixed for trial: s 132A of the Act. The application was foreshadowed at a directions hearing on 17 August 2015 (35 days before the trial date) but was not brought until 25 August 2015 (27 days before the trial date). The matter was previously listed for trial on an earlier date but that date had to be vacated due to the illness of counsel then briefed to appear for the applicant. Mr Dalton SC, who appeared for the applicant at the first trial, was overseas at the time of those events. Whilst overseas, he accepted the brief to appear at the adjourned trial and, in doing so, accommodated dates suitable to the Crown. In the circumstances, the Crown did not oppose leave to make the application and I considered that it should be granted.
Section 131 of the Criminal Procedure Act provides that, except as otherwise provided in the Act, criminal proceedings in the Supreme Court or the District Court are to be tried by a jury. Section 132(2) provides that if both the accused and the prosecutor agree to a trial by judge order, the Court must make the order. If the prosecutor does not agree, the Court has a discretion to make such an order if it is in the interests of justice to do so: s 132(4). The Crown does not agree to a trial by judge order in the present case.
I considered the principles relating to an opposed application for trial by judge alone in R v Gittany [2013] NSWSC 1503 at [2] to [9]. For the reasons there stated at [6] to [8], it must now be taken to be a binding statement of principle that there is no presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone can be made: R v Belgar [2012] NSWCCA 86; 217 A Crim R 1 at [96] per McClellan CJ at CL; R v Stanley [2013] NSWCCA 124 at [42] per Barr AJ, Macfarlan JA and Campbell J agreeing at [1] and [2] respectively; R v Dean [2013] NSWCA 661 at [52] per Latham J. However, although not burdened by any such presumption, the applicant bears an evidentiary burden to establish that a trial by judge alone is in the interests of justice.
The Crown case is summarised in detail in the judgment of the Court of Criminal Appeal at [5] to [35]. The Crown indicated that that summary would provide an adequate indication of the Crown case for the purposes of the present application.
Mr Dalton submitted that it is in the interests of justice that the applicant be tried by a judge alone for four reasons (which, upon analysis, may reduce to three):
1. the fact that the applicant has previously been found guilty of the charges;
2. the degree of adverse media publicity regarding the applicant (including publicity as to the prior conviction and the subsequent successful appeal) the effect of which it was submitted would be highly prejudicial;
3. the complexity of the legal issues involved;
4. the transparency that would attend a trial by judge alone due to the obligation of a judge to give reasons.
In support of the application, Mr Dalton read the affidavit of Matthew John Barnes sworn 25 August 2015. The Crown read the affidavits of Detective Inspector Andrew Marks and Nicholas Scully affirmed and sworn respectively on 24 August 2015.
[2]
Media attention
Mr Barnes's affidavit established that the trial and the appeal did receive a significant degree of attention in the Illawarra region, particularly in the Illawarra Mercury. The affidavit annexes a number of such articles.
The effect of the Crown's evidence was that, while it was acknowledged that there was some media attention to the matter in the Illawarra region, there was little media interest in the Sydney region. Mr Dalton conceded that the media attention was significantly less in Sydney than it was in the Illawarra region, although the conviction and appeal received more attention in Sydney. No article was identified as having been particularly prejudicial. Mr Dalton accepted, appropriately in my view, that the media attention alone would not be a sufficient basis for acceding to the application (T2). As implicitly contended by that concession, however, it is necessary to have regard to the cumulative effect of all factors relied upon in order to determine whether trial by judge alone is in the interests of justice.
That said, in my assessment media publicity is a weak consideration in the present case, for several reasons. First, the extent of the publicity was not out of the ordinary. For reasons that are difficult to identify, some murder trials attract an enormous degree of media attention while others pass with barely a mention.
I accept that there is an additional factor to be considered in this case in that there have been reports of a conviction. The applicant's first trial received an appreciable but not extraordinary amount of attention. The reporting of the events themselves was predominantly in the Illawarra region (which, as confirmed by the Sheriff's Office with the consent of the parties, does not fall within the footprint for the selection of Sydney jurors). Some time has elapsed since the reporting of those events and the legal proceedings.
In my view, the prospect that potential jurors may have read about the case at some point in the past, even including the prospect that some may have read about the conviction, can adequately be met by affording an appropriate opportunity for members of the jury panel to seek to be excused and by appropriate direction in this case. The criminal justice system places confidence in the ability of jurors to understand and adhere to directions. The appropriateness of doing so does entail some evaluative judgment according to the circumstances of each case; my assessment is that this is not a case in which the degree of public awareness about the matter poses a risk to the integrity of the process of trial by jury.
[3]
Complexity
It may be accepted that the issues to be determined in the forthcoming trial entail a degree of complexity. As already noted, it was the co-accused, Walsh, who killed the deceased. The Crown case against the applicant was based on her alleged complicity in that killing. The complexity stems from the nature of the case against Walsh. Walsh was found guilty on the basis of "constructive murder" (sometimes called "felony murder"), that is, an act causing death done in the course of the commission of a crime punishable by imprisonment for 25 years: s18(1)(a) of the Crimes Act 1900 (NSW).
The case against Walsh on that basis was relatively simple. He was alleged to have committed a crime punishable by imprisonment for 25 years (specially aggravated kidnapping) and, in the course of that offence, to have committed an act that caused the death of the deceased.
The applicant was not alleged to have committed any act that caused the death of the deceased and had in fact left the house where the deceased was being detained at the time Walsh killed him. The case was left to the first jury on the basis that her complicity in the underlying offence made her criminally responsible with Walsh for Walsh's act causing death.
The Court of Criminal Appeal held at [70] that the jury ought to have been directed as to a mental element required in the applicant's case; namely, that she contemplated the infliction of actual bodily harm (whether by Walsh or herself) upon the deceased as a possible incident of the kidnapping in which they were jointly involved. The complexity of that issue is perhaps reflected in the fact recorded in the Court's judgment at [81] that the issue on which the appeal was allowed arose for the first time in oral argument during the appeal. The trial judge had not been asked to direct the jury in those terms and the failure to do so was not a ground of appeal. The Court nonetheless accepted that the deficiency (which related to the elements of the applicant's complicity in the specially aggravated kidnapping, the judge's directions on murder being otherwise sufficient) fairly arose and should be determined.
Even so, as complex as the issue appeared in the way in which it emerged, it has now been resolved with clear guidance by the Court of Criminal Appeal. Much of the applicant's argument on this issue was directed rather to the strength of the Crown case than to the complexity of direction on this issue. If the Crown case is weak, that is a matter which should more properly be addressed by way of representations to the Crown. I do not think it is a factor weighing in favour of a trial by judge alone.
The more compelling consideration put by Mr Dalton in oral submissions was the fact that the Crown case as to the mental element identified by the Court of Criminal Appeal at [70] is inextricably linked with the evidence relied upon to support the kidnapping charge. Mr Dalton submitted that there is a real concern as to whether it could be adequately impressed upon a jury "how carefully they would have to remove from their consideration any sympathies towards the deceased" (presumably flowing from the evidence as to the way in which he was treated by Walsh in the absence of the applicant).
Mr Dalton also noted that the tribunal of fact would have to undertake a careful delineation, without emotion, as to what could properly be inferred from the applicant's motive in the alleged kidnapping. The burden of the submission, as I understood it, was that a jury is more likely than a judge to be swayed in assessing the mental element of felony murder (as stated by the Court of Criminal Appeal) by prejudice having regard to the evidence relating to the kidnapping.
The Crown submitted that, on the contrary, that is an issue more appropriately determined by a jury than a judge. He noted the provisions of s 132(5) of the Act, which states:
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.
There is some debate in the authorities as to the extent to which matters relating to a person's state of mind (particularly the issue of intention) fall within the ambit of that section: see for example the discussion in R v Stanley [2013] NSWCCA 124 at [55] to [60]. Intention is a fact, to be found (in the absence of admission) by way of inference from established facts. The extent to which "objective community standards" should inform that process is unclear. However, as argued persuasively by the Crown, s 132(5) does not provide an exhaustive statement of the kinds of issues of fact in the determination of which a jury may be better equipped than a judge. An important consideration, in my view, is the significant burden placed on one person ("a judge alone") in determining such matters. A jury has collegiality and anonymity. The members of the jury have the opportunity to discuss the evidence among themselves at each adjournment, sharing their individual perceptions as to its import, its connection with other evidence and any visual cues.
It is inherently likely that cases in which there appears some risk of prejudice of the kind carefully delineated by Mr Dalton in his submissions will be the very cases in which the combined qualities of 12 jurors will be a boon in the assessment of the evidence. Plainly there will be cases in which the risk or type of prejudice is such that the interests of justice will better be served by ordering trial by judge alone. Conversely, however, the Court must be astute not to make unwarranted assumptions as to the respective capacities of judges and juries for impartiality.
[4]
Transparency
Whilst the applicant's preference for a mode of trial in which reasons will have to be given is understandable, I do not think it is properly to be considered as a factor weighing in favour of a trial by judge alone. I rejected a similar argument in Gittany at [20], saying:
As to scientific issues, the accused relied specifically on the report of Dr Kemp, which was in evidence before me on the application. The terms of that report are not, in my view, so complex as to be beyond the understanding of a jury, properly directed. Separately, Mr Strickland submitted that, in the case of the consideration of such a report, going as it does to the assessment of the reliability of other evidence in the Crown case, it is preferable, and better serves the interests of justice, for an accused to have a statement of reasons for accepting or rejecting the evidence. I think ultimately that contention is contrary to the authorities dealing with applications for trial by a judge alone, which recognise that either mode of trial must be taken to have advantages and disadvantages and that each mode of trial is acceptable. Accordingly, I have concluded that that is not a consideration pointing one way or the other in favour of a trial by a judge alone.
I adhere to that view.
[5]
Further matters raised
Two further issues were raised in oral argument. The first was the fact that the Crown has foreshadowed leading evidence at the new trial of admissions allegedly made by the applicant during her first trial. It was submitted that the course proposed would entail prejudice to the applicant since the jury would inevitably come to know that there had been a previous trial.
That is not a unique circumstance. In my view, it is an issue that could (if it arises, as it almost certainly will in this case) be dealt with by appropriate direction by the trial judge. The jury will probably learn that Walsh has been convicted of murder; that will ameliorate the risk of speculation as to the applicant from the fact of an earlier trial. They may not assume that she was on trial at that point. An anterior difficulty with the argument is that there has not yet been any ruling as to what will be admitted as evidence in the trial. No specific prejudice was identified as being likely to emerge from such evidence beyond the fact that it would reveal the course of events that has occurred. I do not think that is a consideration of any concern in this context.
Secondly, the applicant has foreshadowed asking the Crown to make Mr Walsh available for cross-examination. It may be accepted that, if that occurs, there could be some interesting issues to be navigated by the parties and carefully managed by the trial judge but I do not think that is a consideration that weighs conclusively in favour of granting a trial by judge alone.
[6]
Conclusion
In all the circumstances, the matters relied upon by the applicant have not persuaded me that it is in the interests of justice to order a trial by judge alone in the present case. For those reasons, the application is dismissed.
[7]
Amendments
21 May 2018 - Publication restriction removed - judgment published
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Decision last updated: 21 May 2018