R v DLW

District Court of NSW|2020-05-15

INTRODUCTION

The accused, DLW, is currently in custody and has been since 5 July 2017. The accused faces back-to-back trials. In both trials, he faces serious charges of sexual offences against children. The circumstance that he faces back to back trials is attributable to earlier interlocutory decisions of the Court; which have effectively resulted in his being separately tried in relation to alleged offending conduct against different complainants in different years.
In relation to the first of those trials, this has been fixed to commence on 25 May 2020.
In relation to the first trial, the accused is charged, on an indictment, with the offences that in 2009, in Budgewoi, he:

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW);
had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW); and
had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW).

On 21 April 2020, the accused signed the prescribed form (Form 146) electing to be tried by judge alone. The form contained his written acknowledgement of his having sought and received advice in relation to that election from his barrister.
Earlier, on 23 March 2020, the accused had indicated to the Court at call-over of his intention to bring this application for his first trial to be by judge alone. On that occasion, the Court made a series of orders. Relevantly, one of the orders was that if his application for trial by judge alone was unsuccessful, he would receive priority for the first trial from 16 November 2020. Such marking of his case as having priority is no guarantee that it will occur then. If it does not, his first trial may not proceed at all then in 2020.

STATUTORY POWER

The accused brings his application under ss 132(1) and 132A(1) of the Criminal Procedure Act 1985 (NSW), being the provisions which authorise him making an application for trial by judge alone. By s 132(4), where the prosecutor does not consent to such application, the Court may accede to the application where satisfied that it is in the interests of justice to do so (emphasis supplied). In practical terms, that has usually required an applicant to bear an evidentiary onus for persuading the Court why the trial should be by judge alone. Section 132(5) then indicates a (non-exhaustive) consideration that the Court may, in its discretion, take into account in determining the accused's application. Essentially, that is where the Court finds that a factual issue will require the application of community standards. Another circumstance affecting whether such order might be made is where the Court is concerned that there is a substantial risk of interference with a juror.
But the accused also relies upon s 365(1) of the Criminal Procedure Act 1985 (NSW), which authorises the Court, on its own motion, to order that an accused is tried by judge alone. Section 365 was enacted by the COVID-19 Legislation (Emergency Measures) Act 2020 (NSW).
That power is enlivened where, as here, the accused consents to be tried by judge alone but the prosecutor does not consent, so long as the Court considers that it is "interests of justice for the accused person to be tried by a Judge alone" (s 365(2)(a)-(b)). I note that there is no issue that the procedural pre-condition in s 365((2)(c) has been satisfied here.
Section 365(3) provides that s 365 applies despite any other provision in the Criminal Procedure Act, including ss 132 and 132A.

The accused's submissions

The accused's Counsel submitted that, even before the insertion of s 365, ss 132 and 132A recognised that although the accused bore an evidentiary onus that it was in the interests of justice for a trial on indictment to be by judge alone, there was no presumption that a trial should be by jury and it would depend on the circumstances. As s 132(5) makes clear, a relevant matter was whether there was a factual issue which was likely to engage the application of community standards. Here, the accused submitted that was not likely to be so. The only real question was whether the accused engaged in the alleged conduct.
Secondly, the accused submitted that the application must be determined in light of the legislative purpose distilled in s 365. This purpose, it was argued, was to allow the institutions of government and providers of essential services, such as the Courts, to continue to function during the COVID-19 Pandemic, even to the extent of taking "extraordinary" steps. Specifically, s 365 was enacted, amongst other purposes, to facilitate more judge alone trials [1] . This purpose had to be applied to be given effect to. This was particularly so where, consistent with Court scheduling, a trial by jury was not possible.
Thirdly, the accused noted that although there was earlier 'Pre-Pandemic' authority [2] on the construction of s 132(4) to indicate that the interests of justice did not necessarily align with the interests of the accused, s 365(2)(b) now chose different language to s 132(4) - the Court was now to consider whether it was "in the interests of justice for the accused person to be tried by a Judge alone". It was submitted that the difference in language was deliberate and that although the interests of justice was, by itself, an expression of wide import, the expression in s 365(2)(b) was somewhat more confined, and more attuned to the perspective or position of the accused.

The Crown's submissions

The Crown submits that s 365 does not seek to displace any of the Pre-Pandemic principles that have long been developed in relation to ss 132 and 132A. All that it does is to make it easier to make such an order.
Thus, the Crown submits that the authorities on ss 132 and 132A tend to show:

that there is an important public interest in having trials on indictment determined by representatives of the community who are unanimous in their verdicts, both for the purposes of protection of the accused; and also to reinforce public confidence in the administration of justice;
this is especially so where serious criminal matters involve the application of community standards;
countervailing considerations (to trial by jury) include the lack of transparency in a jury verdict and the likelihood that trial by jury will likely take longer and be more expensive to run; and
that judge alone trials may be more preferable for trials that are lengthy or complex or where there is a risk that a jury trial might not be fair (for example, a heinous crime in a small community).

Taking these principles into account, the Crown submitted that there is no complex issue to be determined. It is simply whether or not the accused committed the offences.
The Crown submitted that although witness credibility assessments are not exclusively the preserve of the jury, it is preferable for the public interests identified that it be a jury that determines the accused's guilt.
The Crown also submitted that the only basis for the application is the onset of the Pandemic - but the effects of the Pandemic are changing every day. It submitted that jury trials are likely to return to Gosford in the near future. The prospect of lengthy delay is not substantial.
Belatedly, in a supplementary submission, the Crown pointed to the circumstance of the second back-to-back trial for the accused commencing in July 2020 and suggested that time allocated to that trial could be utilised for this trial. In any event, jury trials will "no doubt" be returning in July 2020.

DETERMINATION

The Crown's position is at odds with several decisions from Judges of this Court in relation to applications brought following the enactment in s 365. One of those decisions was mine, being the decision of R v Swain [2020] NSWDC 198 (11 May 2020).
In that decision, I indicated that the plain intent of s 365 was to facilitate more trials by judge alone. I indicated that ss 132 and 132A had to be construed in the light of s 365; if not subordinated to it. I would now add to that view that what might be regarded as the general position under ss 132 and 132A should yield to the specific, or particular, circumstances of the COVID-19 Pandemic. I agree with the accused's Counsel's submission that s 365 was brought in to reflect the extraordinary times in which we live and the legislative endeavour that the business of the Courts is to proceed as much as possible. Extraordinary times, as the Attorney General indicated in the extrinsic material, call for extraordinary measures. Facilitating more trials by judge alone may not be so extraordinary, but in circumstances where, in Gosford, there are no jury trials as at 25 May 2020, acceding to this application accords precisely with what Parliament has intended.
It follows from this that I do not share the Crown's sanguine attitude that jury trials will necessarily be returning in July 2020, but even if they did, I am informed that it would not be possible to hear back-to-back trials for this accused in Gosford in July.
It is, in fact, uncertain when jury trials in Gosford will recommence. Further, the Crown's submissions pay no regard to the fact that the accused has already spent a long period of time in custody. Given what is publicly known about the Pandemic, including the experience of other countries, and the possibility of further 'waves' or outbreaks, I proceed on the basis that if the trial does not proceed by judge alone on 25 May 2020, it is uncertain when it will proceed (by trial judge or by jury). The certainty of delay if this application is unsuccessful is, to my mind, the most decisive consideration and it points to the application being acceded to. I therefore reject the Crown's submission that the prospect of lengthy delay is not substantial.
Even if, which is not certain, jury trials do return to Gosford in July, that circumstance in my view is still no answer. Section 365 indicates that the business of the Court is to continue throughout the Pandemic. If the Crown's contention was accepted, it would mean that the Court would necessarily postpone all jury trials until July or some other tangible date when it is expected jury trials will resume. That would frustrate the evident purpose of s 365 as well as undesirably adding to the backlog of trials for the Court.
I give substantial weight to the agreed position between the Crown and the accused that no community standards will be brought to bear in the adjudication of the accused's guilt. That lessens the need for a trial by jury.
I acknowledge that, on the basis of what I have been told, there is no overt legal or factual complexity to this case such as might typically incline the Court to determine that the trial proceed by judge alone.
It appears that the credibility of witnesses - especially the complainant - will be very important. In my view, on the matter that a trial judge will be forming assessment of witness credibility, there are considerations pointing both ways as to the desirability of that: the value of transparency in reasoning, as distinct from the confidence of a group of community representatives bringing to bear their unique experiences to collectively form a view. In other words, I consider that this consideration is neutral.
I give weight to the circumstance that the accused, with the benefit of legal advice, has made the election. An important part of the public interest is the protection for the accused in having a trial by jury. But with the benefit of legal advice, he considers that his interests would be best served by having a trial by judge alone now, in less than 2 weeks, than having a trial by jury, deferred to an unknown date.
In recognising this election, I do not consider it necessary to engage with the accused's submission that a difference in language, as between s 365(2)(b) and s 132(4), means that the expression 'interests of justice' is to be read down in some way for the duration of the Pandemic, to give greater weight to the personal interests of the accused, relative to the community.
On balance, I am satisfied that it is in the interests of justice for the accused to be tried by a Judge alone at the trial commencing on 25 May 2020.
The accused's application for a Judge alone trial is therefore allowed.

Endnotes

Reference was made here to the Second Reading Speech of the Attorney General introducing the legislation.
Including, but not limited to, R v Stanley [2013] NSWCCA 124 per Barr AJ at [43] (Macfarlan JA and Campbell J agreeing).

Amendments 15 May 2020 - Minor amendment to catchwords 15 May 2020 - Correction of minor typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2020

COVID-19 Legislation (Emergency Measures) Act 2020(NSW)

Criminal Procedure Act 1985(NSW)

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