By Notice of Motion filed with leave on 16 March 2021, the accused sought the following prayer for relief:
"(3) That pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) leave be granted to the accused to make application for a trial by judge alone.
The Crown did not oppose leave being granted and therefore on 17 and 18 March 2021 the accused's application for trial by judge alone was heard. On that application, Ex A on the previous application relating to s 293 of the Criminal Procedure Act 1986 ("CPA"), became Ex A on the voir dire.
[2]
Submissions of the accused
Counsel for the accused relied on the judgment of Hamill J in R v Simmonds; R v Moore (No. 4) [2015] NSWSC 259, for the principles to be applied to an application pursuant to s 132 of the CPA. In that case, his Honour found on the basis of what he described as "a vast amount of material … which is of a highly prejudicial kind" that a trial by judge alone was warranted in the circumstances.
Counsel identified the prejudice to the accused here, following my decision to exclude the material identified in my previous judgment, pursuant to s 293, the fact that the ERISP interview of the accused will contain incomplete answers. It was submitted, "as words within certain sentences or sentences within answers will be redacted, it will necessarily be audible and visible that material has been excised and kept from the jury".
Secondly, counsel submitted that absent the s 293 material, "the jury will be presented with a version of that ERISP which raises a big sudden reaction by the complainant, but which seems not to include evidence of any attempt by the accused to first ascertain whether the complainant was alright. Secondly, to enquire as to the source of her sudden distressed reaction".
Thirdly, it was submitted that "the ERISP would not contain any evidence of an attempt by the accused to console the complainant, which he did, in light of any explanation or answer she might have given him to that enquiry".
It was submitted on behalf of the accused that the edited ERISP left an impression that the accused was either completely uncaring at best, or unwilling to ask the complainant whether she in fact was alright and/or what was wrong. It was further submitted that an inference was available that the accused knew or suspected that the reason the complainant had reacted was because he had sexually assaulted her. It was further submitted that the edited interview would leave the impression that the accused refrained from providing a complete account of that aspect of the night, namely, the portion of the evening in between her big reaction and when they left the apartment, for some reason consistent with his consciousness of guilt.
Counsel for the accused submitted that the edited ERISP meant that the accused "will not have his account of the care and the interest and the compassion and the sympathy that he afforded the victim after that time. Rather, there will be her reaction and nothing by him; and far from this being a matter where he can adduce other evidence to explain that, he necessarily cannot, because doing so would subvert [my previous ruling]".
It was submitted that this would cast the accused in a most unfavourable light, and leave the precise opposite impression of what he sought to demonstrate by his answer to the question, namely, "that's not what you do in that situation".
Fourthly, it was submitted that the accused would be limited to a bare denial in response to the alleged reinitiating of sexual conduct by him, referred to at Ex A.3, [20] from the second sentence.
It was submitted that a jury could not be directed as to why the accused's full denials of such conduct were not before them, because to do so would reintroduce material ruled inadmissible by my decision concerning s 293.
A fifth basis of prejudice was that the accused would be unable to rely on the messages he sent to the complainant in the early hours of the morning, which appear at Ex A.4, messages numbered 24 and 25. Following the hearing of this application, those two messages were excluded from my previous ruling.
The final basis of prejudice was submitted to be the Crown's reliance on significant evidence of physical distress by the complainant contained in the evidence of Ms Spears (Ex A.12), Ms Rake (Ex A.10), and Ms McGraw (Ex A.11). Counsel acknowledged that this evidence was to be adduced as complaint evidence and provided a separate source of likelihood that the sexual assaults occurred as alleged on the basis that it was consistent with those allegations. It was submitted that the prejudice lies "in the total inability of the accused to advance an alternative and innocent explanation for that distress".
Counsel distinguished the judgment of Wilson J in Restricted Judgment [2020] NSWSC 950, where her Honour refused an application for trial by judge alone where the principal issue was consideration of whether the accused suffered substantial impairment of her mind as a defence, on the basis that that judgment was one requiring the application of community standards and moral values.
Counsel submitted that putting issues of credibility to one side, objective community standards were not ordinarily required with respect to issues of consent, and knowledge of consent as would arise in this trial. For example, it was submitted that this was not like a fraud trial where objective community standards would ordinarily be required.
Counsel further submitted that the decision of Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 can also be distinguished as considerations relating to the Covid-19 pandemic, and the resources of the court relevant to that decision are not relevant here.
Counsel submitted that the prejudice to the accused here arose because of the content and form of the evidence that will be before the jury. It was submitted that a jury could not be directed as to important issues such as, "why did the complainant react in the way that she did, and other matters". This was a unique prejudice to the accused which could not be cured by directions.
Counsel for the accused agreed with the submission made on behalf of the Crown in its written outline, that there was material in the ERISP (Ex A.5), Q and A 235, 236 and 239, which amounted to evidence of an attempt by the accused to comfort the complainant, for example, in his answer to Q239:
"A: Then she came and lay on the bed while I was then sitting next to her. So she was sort of lying here and I'm sitting right next to her, um, and I've got my hand on her to comfort her from what had just gone on."
It was submitted that this evidence merely highlighted the risk of potential misuse by the jury as being consistent with the accused consoling a complainant who he knew he had just raped.
Further, absent the evidence ruled inadmissible pursuant to s 293, an inference arose from his ERISP interview that amounted to admissions.
Finally, it was submitted that whilst the authorities noted that where credibility and reliability loomed large, that militates a jury trial, judges were equally equipped to deal with issues of credibility and reliability.
[3]
The Crown submissions
The Crown relied on a thorough, detailed written outline of submissions in which it summarised a number of Court of Criminal Appeal decisions concerning s 132 of the CPA. From those decisions, the Crown distilled the following principles to be applied:
"(1) Section 131 which provides for trial by jury does not have the effect of creating a presumption that the trial should be by jury.
(2) The default position will be that a trial must take place by jury.
(3) In considering where the 'interests of justice' lie, it is relevant to consider whether the trial will involve an application of community standards.
(4) The subjective view of the accused and his or her belief that he may not get a fair trial is a relevant factor.
(5) The interests of justice are not informed by considerations of the overall efficiencies in the operation of the court which may be available from a judge alone trial.
(6) The requirement of the judge to give reasons is but one factor when considering where the interests of justice lie.
(7) What are the interests of justice in any particular case can only be ascertained by reference to the facts and circumstances of the case under consideration.
(8) 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.
(9) In respect of prejudice, there must be more than a stated apprehension without supporting evidence that the accused will suffer prejudice in a jury trial.
The Crown submitted that in R v Qaumi [2016] NSWSC 274, the court referred to three areas of controversy in relation to applications for judge alone trials, namely:
"(1) Whether the question of intention requires the application of community standards;
(2) Whether the judge or jury is the better arbiter when questions of credibility are in issue;
(3) The extent which jurors are able to and do, follow directions and put aside questions of emotion and prejudice."
The court held that (1) and (2) were neutral considerations. In relation to (3), Hamill J observed that the line of judicial authorities holding that juries can put aside prejudicial material and do obey judicial directions, is a strong and binding one.
The court went on to hold that factual issues requiring the application of objective community standards is a matter militating in favour of trial by jury, however, it is not determinative. The prevailing question is whether it is in the interests of justice to make an order for trial by judge alone.
The Crown relied on Restricted Judgment, supra, at [76] where her Honour stated that community standards were best determined by a jury representing a cross-section of the community.
The Crown submitted that where the consent of the complainant and whether the accused knew that the complainant consented, were elements of the offences in Counts 2, 3 and 4, there were real factual issues here to be resolved by the application of community standards. There was also substantial issues of credit to be resolved. It was the Crown's case that in relation to knowledge of lack of consent, the accused not only actually knew the complainant did not consent, but that he was reckless as to consent and held no honest belief that she was consenting, or if he did, there were no reasonable grounds for that belief. These issues involve the application of community standards.
In response to the matters of prejudice outlined by counsel for the accused, the Crown submitted that such prejudice did not arise. First, the edited ERISP interview would contain gaps, but this situation arises in many trials and can be cured by directions. Secondly, the Crown submitted that there was evidence available, as referred to above, that the accused did seek to comfort the complainant following the alleged offences. Further, what the accused referred to as the "big sudden" reaction, might be entirely understandable and obvious to the jury as a result of the foreplay which included choking, biting and restraint. It was submitted that a jury would not necessarily reason that the complainant reacted as she did solely because of the alleged sexual assaults.
In respect of the submissions on behalf of the accused, that he would be limited to bare denials in relation to the alleged initiating of sexual conduct by him, and that he had a total inability to advance an alternative basis for the complainant's distress, the Crown submitted that this was not necessarily so. The complainant's distress was also open to another interpretation, having regard to the sudden acts of physical violence, which are admitted by the accused in respect of Count 1 and are accompanied by injuries.
The Crown submitted that factually and legally, this was not a complicated trial, nor is its estimate long. Fortified by directions designed to ensure that the accused receives a fair trial, a jury of 12 was best placed to decide the case. The Crown therefore submitted it was not in the interests of justice for this trial to be heard by judge alone.
[4]
Determination
Section 132 of the CPA provides relevantly as follows:
"132 Orders for trial by judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by Judge order).
(2) The court must make a trial by Judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by Judge order.
(4) If the prosecutor does not agree to the accused person being tried by 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. …"
As stated by Hamill J in R v Simmons; R v Moore (No 4), most of the principles relevant to an application for judge alone trial are helpfully summarised in R v Villalon [2013] NSWSC 1516 per Bellew J at [20]. They are reflected in the principles distilled by the Crown as set out above. There is no presumption that the trial should proceed with a jury and although an 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.
Pursuant to s 132(5), in 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 lay people.
The subjective views of an accused are a relevant factor to consider. However, the fact that an accused person desires a trial by judge alone is not as significant as the reasons for that preference. In this case, the subjective views of the accused may be distilled from the submissions made on his behalf as to the alleged prejudice that will arise to him if the matter were to proceed before a jury. Further, the granting of an application based upon the mere apprehension of prejudice in prospective jurors, and which is not based on evidence or a matter of which the court may take judicial notice, is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring impartial minds to bear on their verdict. It is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him from an unjust result.
I do not accept the submission made on behalf of the accused that the issues of consent, and the accused's knowledge of the consent of the complainant that will arise in this trial are not factual issues requiring the application of objective community standards. Further, such issues cannot be considered by putting to one side issues of credibility and reliability, both of the complainant's evidence and that of the accused. They are inextricably intertwined factual issues which require the application of objective community standards and are issues preferably determined by a jury.
There is no issue here as to the length of trial or issues determining complex expert evidence. I note, however, that in R v Simmons; R v Moore (No 4), supra, Hamill J at [82] held that:
"For the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone."
This is because judges have the training and experience to make difficult decisions on questions of credibility, putting aside matters of emotion, on an almost daily basis.
The real issue here is the question of prejudice to the accused, as outlined by counsel for the accused in her submissions. Those issues do not amount to the type of prejudice in R v Simmons, supra, which was candidly acknowledged by the Crown in that case and which Hamill J was unable to envisage any direction that would alleviate the prejudice involved, leading him to conclude that it was in the interests of justice that the accused be tried by judge alone.
Here, the prejudice does not rise to that level. There will appear gaps in the ERISP and the transcript of the ERISP, however, that occurs in many trials and juries are properly directed that that is routine, and that irrelevant material is excised from such evidence. It may be assumed that juries faithfully follow directions they are given. Further, as the Crown has pointed out and counsel for the accused agreed, there is evidence remaining in the accused's ERISP that he did comfort the complainant following the alleged offences to a certain extent. I accept the Crown's submission that what the accused has characterised as a "massive reaction" on the part of the complainant, may be explicable as a reasonable reaction to the physical assault of the accused by biting and choking her. The jury will be given directions not to speculate about matters that are not in the evidence and given directions as to the issues of consent, the knowledge of the accused as to consent, and as to whether he was reckless.
Having reviewed the whole of the evidence contained in Ex A on the voir dire, I am not persuaded that the prejudice alleged by the accused is such that militates against a trial before a jury. Rather, the issues in the trial will be the consent of the complainant to each of the acts in Counts 2, 3 and 4, and the knowledge of the accused of that consent or recklessness as to his belief thereto, which will ultimately require a determination of the credibility and reliability of the evidence of the complainant and the accused, which will in turn require the application of objective community standards. On balance, the interests of justice mean the accused's application for a trial by judge alone should be refused for those reasons.
[5]
Orders
On the accused application brought by Notice of Motion for leave to bring an application for trial by judge alone, I make the following orders:
1. Leave to bring the application is granted pursuant to s 132A.
2. The application for judge alone trial is refused.
[6]
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Decision last updated: 15 October 2021