R v Mackie

The legal framework

1. This application is brought pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). Section 132 provides 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 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.
2. There is no onus on the applicant to displace a presumption of trial by jury - it is only whether it is in the interests of justice: R v Belghar (2012) 217 A Crim R 1; [2012] NSWCA 86 at [96] per McClellan CJ at CL and at [118] per Hidden J.
3. The Criminal Procedure Act does not provide guidance as to factors to consider in determining whether a trial by Judge alone is in the interests of justice. In R v Belghar, McClellan CJ at CL stated (at [94], Hidden and Hislop JJ agreeing): "As Kirby P said of s 89(1) of the Supreme Court Act, but for subs (5) and (7), s 132 of the Act contains no guidance as to the matters which may inform the "interests of justice" when an application is made for a judge-alone trial. Subsection (5) does identify the circumstance where a trial may involve a factual issue "that requires the application of objective community standards" as being one occasion when it may be appropriate to refuse to make an order. Subsection (7) encourages a judge alone trial where there may be a substantial risk of interference with a juror. Neither subsection (5) or subsection (7) are of direct relevance in the present case."
4. The interests of justice do not necessarily align with the interests of the accused. In R v Stanley [2013] NSWCCA 124, Barr AJ (at [43], Mcfarlan JA and Campbell J agreeing) cited Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 in stating: "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."
5. Various considerations on the issue of trial by judge alone have been identified by the authorities. In R v Belghar, McClellan CJ at CL echoed the comments of Gleeson CJ in Swain, identifying two "collateral advantages of trial by jury" which apply universally, irrespective of the subjective features of the case at hand. Those factors are the community interest in ensuring that serious criminal matters are determined in accordance with current community standards, and the community interest in ensuring that there is public confidence in the criminal justice system.
6. McClellan CJ at CL also rejected the proposition that considerations of overall efficiencies in the operation of the judicial system are relevant in determining an application under s 132(1) (Belghar at [111]), although he accepted that it can be part of the mix of issues which must be considered, where the likely length of a trial in a particular case if conducted with a jury when compared with one conducted before a judge alone may be a relevant concern.
7. In R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259, Hamill J enumerated (non-exhaustively) the following factors should be considered in determining whether a trial by Judge alone is in the interests of justice: where community standards and intention are to be considered it is favourable to have a jury to determine issues arising therefrom, it is generally more efficient to have a Judge alone trial, the reasons of a trial judge provide added transparency, cases involving complex expert evidence are often difficult for juries to comprehend, issues of credibility are more appropriately determined by juries than single judges, and where material may be public, or has been viewed by the jury, then it may be difficult to overcome prejudice against the accused.

Accused's submissions

1. There is no guarantee that the new jury would be able to reach a verdict, whereas a Judge alone trial would guarantee resolution of the matter. This is relevant to the accused's interest in the resolution of the proceedings and to avoid the financial cost of multiple trials. R v Haydar (No 2) [2017] NSWSC 131 is illustrative of the problem that can occur with juries because two separate juries were discharged during the Crown's opening address, and the difficulty and expense in empanelling a jury was a factor which militated towards a Judge alone trial.
2. Second, by the start of the March 2019 trial, the accused will have been bail refused for over 3 years and 3 months. There has been difficulty in finding suitable accommodation for the accused and so no supportable release application has been able to be made. This further militates towards the accused's interests in an "outcome" with this trial.
3. Third, the accused, having received legal advice on the subject, is willing to forgo her right to a trial by jury so that she can "secure an outcome".
4. Fourth, a jury of twelve has not been able to reach a unanimous verdict in the past which suggests that the interests of justice may be advanced by the requirement that a judge provide reasons for verdict.
5. Fifth, the trial will not raise a factual issue that requires the application of objective community standards of the type which would enliven the discretion in s 132(5).
6. Sixth, intention will not be a significant issue for determination. The primary issue will be what the tribunal of fact makes of the accused's statements to a police undercover operative.

Crown submissions

1. While there is no guarantee that the second trial by jury would not result in another hung jury, the failure to reach a unanimous verdict is not uncommon. If it were to occur, the Director of Public Prosecutions' Guidelines provide that a third or additional trial will be directed only in exceptional circumstances.
2. The circumstances in R v Haydar (No 2) [2017] NSWSC 131 were particular to that case, and the case does not have general relevance or application.
3. The observations of McClellan CJ at CL in R v Belghar contradict the accused's submission that the financial cost of multiple listings is a factor in favour of a trial by Judge alone. In that case, his Honour rejected that considerations of overall efficiency are relevant to determining an application under s 132(1).
4. The accused is currently bail refused and remains so (absent a bail application) until the trial date, irrespective of whether the trial proceeds before a jury or a Judge alone.
5. The accused's willingness to forgo her right to a trial by jury to "secure an outcome" does not assist the argument, because there is no real difference in "outcome" whether the trial is completed before a jury or before a Judge alone.
6. The availability of reasons for verdict would not substantially enhance the interests of justice, as the paramount issue in this case will be assessing the truthfulness and reliability of aspects of the accused's statements made to the undercover operative.
7. It is not a case which involves complex engineering, scientific or medical issues or complex expert opinion.
8. Whilst there is no factual issue that requires the application of community standards, the general assessment of the credibility and reliability of the accused's representations to the undercover operative is more properly made using the collective wisdom of a jury of twelve, rather than a single judge.

Decision

1. I am not persuaded that it is in the interests of justice for the accused to be granted a judge alone trial.
2. As stated by McClellan CJ at CL in Belghar, whilst reasons in a trial by a judge alone compared with "inscrutability of a jury's decision" can be a factor, it is only a factor to be considered and "the weight to be given to it will depend on 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". [115]
3. There is no complex expert evidence in this case. The forensic evidence is straightforward and not complex. In any event, given the nature of the issues in this case and the primacy of the assessment of the credibility and/or reliability of certain things said by the accused to the undercover operative, it is my view that the decision of a jury of twelve evaluating those matters is more consistent with the interests of justice than a sole arbiter in the circumstances of this case.
4. I agree with and adopt the approach of Basten JA in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 at [9]-[10]: "[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…"
5. I am not persuaded that it in the interests of justice to grant the application and it is refused.

Amendments 30 January 2020 - 30 January 2020 - amendment to the wording of "difficulty" in paragraph 10 to "efficiencies". 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: 30 January 2020