R v Glumac

Relevant Law

1. Section 131 Criminal Procedure Act 1986 (the Act) provides: Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.
2. Section 132 of the Act relevantly provides for an order for trial by judge alone on the following basis: … (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.
3. Although the applicant carries an evidentiary onus in relation to the application, s 131 of the Act does not have the effect of creating a "presumption that a criminal trial should proceed with a jury", thereby casting a burden of proof on the applicant to displace any "presumption" of a jury trial: R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 at [96].
4. The Court must determine whether it is in the interests of justice in the case before the Court to make the order: Belghar at [103]; DPP (NSW) v Farrugia [2017] NSWCCA 197 at [9].
5. Section 132(4) of the Act involves a binary choice, which depends upon the evaluative judgment of potentially conflicting considerations including the interests of the parties, larger questions of legal principle, policy considerations and the public interest underpinning the standard procedure of trial by jury: Farrugia at [8] and [10]: Landsman v R [2014] NSWCCA 328 at [69]. On making a determination that it is in the interests of justice to order a judge alone trial, the Court should make the order: Brown v DPP (NSW) [2018] NSWCCA 94 at [12]-[13].
6. The Act does not provide guidance as to the matters which may inform the interests of justice: Belghar at [94]. In R v Dawson [2022] NSWSC 552 at [10]-[11] Beech-Jones CJ at CL, referring to R v Simmons (No 4) [2015] NSWSC 259 at [67]-[82] and Belghar at [99]-[112] made the following observations with respect to considerations relevant to the interests of justice: In Simmons (No 4), Hamill J identified several considerations which may inform the assessment of whether the interests of justice warrant the making of an order for trial by judge alone. These include the potential to save court time and expense from having a matter proceed without a jury although the weight to be attached to this factor will vary from case to case. One advantage of a trial by judge alone is the enhanced community confidence in the verdict that may be derived from the provision of reasons by a judge especially if it concerns complex engineering, scientific or medical issues. On the other hand, there is a "public interest in the administration of justice [being] carried out in public and in serious cases by the representatives of the public sitting as jurors". Many authorities point to juries as the preferred body to make assessments of the credibility of witnesses. However, in Simmons (No 4) Hamill J regarded this factor as neutral given that judges have the "training and experience of making difficult decisions on credibility, putting aside matters of emotion, on an almost daily basis".
7. The election of the applicant and their subjective views in dispensing with a trial by jury is to be taken into account as a matter of determining where the interests of justice lie: Belghar at [99]; Redman v R [2015] NSWCCA 110 at [13] referring to Simmons (No 4) at [60].
8. The interests of justice cannot be informed by considerations of the overall efficiencies in the operation of the court, however the likely length of the trial in the particular case, if conducted with a jury compared to by judge alone may form "part of the mix of issues" to be considered, although are of little weight: Belghar at [110]-[111].
9. Many applications for judge alone trials are based on the risk of prejudice arising from adverse publicity, however "overwhelmingly it has been held that the prejudice identified in the application is capable of being overcome by directions to the jury": Dawson at [12] quoting Simmons (No 4) at [84].
10. It should be assumed that jurors are capable, and do, obey directions including directions to disregard prejudicial publicity and to be informed only by the evidence adduced at trial: Simmons (No 4) at [84]; R v Obeid [2015] NSWSC 897 at [68]. To justify a judge alone trial order, media coverage of a case must be extraordinary or emotive: R v Qaumi (No 14) (Judge Alone Application) [2016] NSWSC 274 at [77].
11. The lapse of time between publicity and the trial is a significant factor in determining the prejudicial effect of media coverage. A jury's memories of prejudicial material will fade with the passage of time: Obeid at [61] and [65].
12. Section 132(5) of the Act acknowledges that, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by objective community standards, it may be preferable that there be a trial by jury: R v McNeil [2015] NSWSC 357 at 35; Belghar at [96]; R v Villalon [2013] NSWSC 1516 at [20].
13. Where the trial does not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor: Belghar at [100]. The prevailing question is whether it is in the interests of justice to make an order: Qaumi (No 14) at [22].

Preliminary matters

1. The application has been made more than 28 days before the date fixed for trial, and the accused does not require leave to make it: s 132A(1) of the Act.
2. The accused has received advice as to the effect of a trial by judge order from his solicitor and counsel: s 132(6) of the Act.
3. The accused makes the application for a trial by judge order on the basis that he does not believe that he will receive a fair trial, and this is a relevant factor to be taken into account.
4. The Crown seeks to conduct a single trial for a number of sensible and legitimate reasons. First, the allegations suggest a pattern of conduct over a period of seven years, with the latter allegations being suggestive of more brazen and violent conduct on the part of the accused as time went on. Second, the Crown seeks to call all of the complainants as tendency or coincidence witnesses in each complaint, and a single trial will limit, if not eliminate, the need to call a complainant more than once. Third, in the same vein, other lay and police witnesses will probably only need to be called once if there is a single trial.
5. However, none of these reasons are thwarted by making a trial by judge order.

Prejudice

1. There is significant potential for the accused to suffer prejudice by reference to the sheer volume of evidence alleging sexual misconduct on his part, to be led in a single trial. I am satisfied that there is a real risk that jurors will be overcome by emotional responses to the extent of the alleged offending and thereby fail to remain impartial and to determine the accused's guilt of each separate offence according to the evidence relevant to that count.
2. This risk is increased by reference to the portrayal of the accused in the media as a sexual predator, which I will return to.
3. It will be very difficult for a jury to deliberate on so many counts involving so many complainants. A jury trial is estimated to take in excess of six months. It will be difficult for jurors to make and recall credit assessments of each of the complainants and apply those assessments in the context of the directions given at the end of the case. Even if directions are given progressively, there will still be some elapse of time between the evidence of each complainant and when the jurors are asked to deliberate, armed with directions on the elements of the offence and the uses to which particular pieces of evidence can be put. In contrast, judges are experienced in making credit assessments of witnesses on a daily basis, understand the issues of the case and the context in which those assessments must be made and are able to draft reasons throughout the course of the trial thereby preserving the recency of their observations and preventing the degradation of the evidence through memory loss and intervening events.
4. The accused submitted that the trial will be further complicated by the inclusion of the allegations of the two complainants, who were under 16 at the time of the alleged offences. The accused contended that this complicated the case because: 1. consent was not relevant to the s 66C charges brought in relation to those complainants; and 2. there would be some confusion arising from the tendency notice because it does not allege that the accused had a sexual interest in children.
5. The Crown submitted that the two under 16 complainants were included on the indictment because the allegations made by them occurred at a time towards the beginning of the offending period and they demonstrated the alleged pattern of offending conduct. Further, the Crown pointed out that the allegations against the accused in relation to both of those complainants was that the sexual activity was non-consensual and that the s 66C charges were back-up charges.
6. I am not satisfied that the inclusion of the under 16 complainants adds much to the complexity of the case, which is already substantial, for reasons I will come to.

Tendency and Coincidence Evidence

1. The Crown has served tendency and coincidence notices on the accused dated 15 September 2022. The Crown intends to call each complainant as a tendency and/or coincidence witness in each complaint. The Crown also intends to call a further four witnesses to establish some of the relevant tendencies on the basis of uncharged acts.
2. Whilst some objection may be taken to the content of the notices before the trial, I accept the accused's submission that I must deal with them for present purposes as they are currently drafted. The accused also accepts that it is inevitable that he will face some tendency and/or coincidence evidence at trial.
3. I will deal with this issue by reference to the tendency notice only, because it received the most attention in argument (and the coincidence notice received very little).
4. The Crown alleges 15 tendencies arise from the allegations of the complainants and the tendency witnesses. There is only one tendency said to apply to all of the complainants. The others are contended to apply to subsets of the complainants. For example; 1. the alleged tendency to engage in sexual conduct after the complainant said that she did not want to engage in sexual relations is alleged to apply to 12 out of the 18 complainants; and 2. the alleged tendency to engage in rough, dominating sexual acts is alleged to apply to 10 out of the 18 complainants.
5. Multiple tendencies are alleged to apply to all of the complainants, meaning that there is considerable overlap in the applicable tendencies, in a number of different ways. For example: 1. 13 of the 15 tendencies are alleged to apply to the complainant, JT, whereas only three of the alleged 15 tendencies are alleged to apply to the complainant, HC; 2. 8 of the complainants who said they did not want to engage in sexual relations allege that the accused then engaged in rough, dominating sexual acts.
6. I cannot discern, after considerable study of the problem, the number of possible combinations arising from the overlap of the alleged tendencies, but it is substantial.
7. The number of tendencies alleged by the Crown and the inapplicability of them to all complainants introduces considerable complexity into formulating appropriate directions to a jury. Putting aside the usual directions about establishing a tendency, the directions must identify which counts and/or complainants the tendency can be applied to and which they cannot. Put simply, some of the alleged tendencies are completely irrelevant to the determination of some counts on the indictment.
8. Very careful instruction will need to be provided to a jury as to what use the evidence can be put in the course of their deliberation, including directions not to engage in tendency reasoning where it is irrelevant to a particular count. This will involve complex and overlapping instructions as to how the tendency and/or coincidence evidence could be applied to each of the 47 counts.
9. The extent of the overlap of the alleged tendencies leads me to the conclusion that there is a real and substantial risk that the jury may misuse the tendency evidence by applying it globally to their deliberation on the counts on the indictment or by applying it to the wrong individual count. Either of these uses would lead to a miscarriage of justice.
10. I have also taken into account that there is authority for the proposition that it may not be appropriate to lead tendency evidence across a variety of allegations involving different types of sexual conduct: Stenner-Wall v R [2023] NSWCCA 163.
11. Even with appropriate instructions from a Judge, there is a real risk that a jury may misuse the evidence, particularly if it is applied globally or to the wrong count, leading to a miscarriage of justice.

Sensitive evidence

1. The Crown will seek to lead sensitive evidence recovered from the accused's mobile phone depicting sexual intercourse and sexual acts with women between 2016 and 2017. The police recovered about 1,300 videos and 31,000 relevant images from the device.
2. In argument, the Crown accepted that there are concerns as to the prejudicial nature of this evidence and its existence would seek to be led through the officer in charge of the investigation, rather than by tendering the material. The Crown accepts that it cannot prove that any of the complainants are depicted in the material or that the accused is identified in it. The Crown does rely on the material as tendency evidence in support of the evidence of a few complainants who allege that the accused took photographs of them during sexual intercourse without their consent.
3. My preliminary view is that the sensitive evidence is probative, but also prejudicial to the accused. It is not possible to draw any conclusions from the sensitive evidence that the sexual encounters depicted were consensual or not or how many people are depicted in them.
4. I am satisfied that there is a real risk that the sensitive evidence could be misused by a jury because it adds to the volume of evidence suggesting that the accused is a sexual predator.

Alleged admissions

1. The accused took part in an ERISP on 15 November 2017 in relation to the allegations made by EH (the first ERISP). The accused made partial admissions in the ERISP, accepting that they had sexual intercourse but that it was consensual.
2. The accused also took part in an ERISP on 9 December 2020 in relation to the allegations made by TV, EW, JW, EH and VP (the second ERISP). The interview took the form of the police outlining the allegations to the accused. The accused did not give any exculpatory account of his conduct in the second ERISP.
3. When approached in April 2021 about the allegations of the remaining complainants, the accused exercised his right to silence.
4. The accused faces the problem of how to explain to a jury the reason for his different approaches to being interviewed by the police. There is a risk that a jury may speculate as to why he chose to make exculpatory statements in the first ERISP, but failed to do so in the second ERISP, and why he failed to participate in an ERISP on the third occasion. This has the potential to erode the accused's right to silence.
5. The Crown also seeks to lead the evidence of partial admissions by the accused during the course of a telephone conversation with a witness, HC. Again, I have proceeded on the basis that the evidence is admissible for the purpose of this application. The alleged admissions are most relevant to the allegations of the complainant, JW, who was a friend of HC. It is arguable that the alleged admissions are highly prejudicial to the accused's case, at least in relation to JW's allegations.
6. There is some risk that, if admitted, the alleged admissions made to HC could be applied by the jury to the allegations globally, or to other counts.

Application of Objective Community Standards

1. I am not satisfied that the determination of the case will involve the application of any objective community standards.
2. The accused is charged with four counts of indecent assault contrary to s 61L Crimes Act 1900. The accused concedes that the element of indecency will be established, if the tribunal of fact is satisfied beyond reasonable doubt that the alleged act took place.
3. It appears from the argument that the most significant issue in the case is one of consent, but that is not to say that the accused accepts the allegations of any particular act at this point in time. In those circumstances, the relevant enquiry is what was the state of mind of the accused, which does not involve the application of an objective community standard.
4. The case will require the assessment of the credit of each of the complainants, but this is not a case where there is a particular public interest in those assessments and the assessment of the credibility of witnesses is neutral in the context of this case: Simmons (No 4) at [81]-[82] (Hamill J).

Adverse publicity

1. There was some publicity surrounding the investigation of the accused and the subsequent charges laid against him. I have had regard to the documents tendered by the accused and make the following observations.
2. The case received coverage on television, in print and on social media. There is a considerable amount of material still available on the internet. There remains a serious risk that it will be accessed by a juror involved in the trial, in breach of the usual directions not to do so.
3. This available material includes videos of the accused's arrest, appeals from the police for further complainants to come forward and details of additional charges laid against the accused. In evidence, there were 12 reports in 2020, 11 reports in 2021, no reports in 2022 and 2 reports in 2023. The Crown submitted and I accept, that there were no reports of the accused's recent trial on the allegations made by another complainant. Whilst the accused lived in the Campbelltown area at the time of his investigation and arrest, the media publicity was not limited to that area and I am satisfied that it would have been accessed by members of the public in the Sydney area, from which a jury pool will be drawn. I accept that the extent of the media publicity was not as significant as it was in recent high-profile cases, where the Supreme Court has decided that it did not warrant the making of a trial by judge order. Further, I accept that the impact of the media publicity will have faded over time.
4. A feature of this case is that the police deployed the media and used social media to appeal for complainants to come forward. Fourteen of the 18 complainants came forward as a result of the media publicity. This had the impact of supporting the theme of some media reports that the accused was a sexual predator.
5. I note that one of the media reports incorrectly alleged that the accused used a knife to commit one of the alleged offences.

Practical convenience

1. It was common ground that the making of a trial by judge order would substantially shorten the estimate of the trial. The accused submitted that the time saving would be in the order of three months of hearing time.
2. The accused submitted, and I accept that, a judge alone trial will make it easier for there to be agreement on some issues that can be presented as agreed facts or in summary form pursuant to s 50 Evidence Act 1995, without the need to explain either of those processes to a jury.
3. The giving of reasons by a judge in a case of this kind will also bring transparency to the determination of each count, particularly having regard to the complex tendency issues that I have referred to.
4. There always remains a chance that a trial may have to be aborted which is greatly increased when the trial is conducted with a jury.

Conclusion

1. Taking into account all of the above matters, I am satisfied that in combination, they demonstrate that it is in the interests of justice to make a trial by judge order.

Orders

1. The orders I make are as follows: 1. Pursuant to s 132(4) Criminal Procedure Act 1986 the trial of Anthony Stevo Glumac be heard before a judge sitting alone.

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