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Texts Cited: N/A

Category: Principal judgment

Parties: Ayman Manly (Applicant)
Rex (Respondent)

Representation: Counsel:
D Dalton SC with J Jiang and D Beaufils (Applicant)
E Balodis SC (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2024/00336525

Publication restriction: N/A

EX TEMPORE JUDGMENT (Revised)

1. By notice of motion filed in Court this morning, but foreshadowed late last week and provided electronically on 3 August 2026, Ayman Manly applies for a “trial by Judge order” pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (“CP Act”). The Prosecutor does not agree that such an order should be made (cf s 132(2)) – in fact the order is opposed. Accordingly, it is for the Court to determine whether it considers it is in the interests of justice to make the order: CP Act, s 132(4).

2. Mr Manly is charged with the murder of Mohammad Chami (count 1), the attempted murder of a person known as Witness 1 (count 2) and an alternative count (3) of discharging a firearm with intent to cause grievous bodily harm to Witness 1.

3. The prosecution case is that Mr Chami was shot five times at close range by Mr Manly. There was bad blood between the two men arising from Mr Chami’s suspicion that Mr Manly had been intimate with Mr Chami’s wife. They arranged to meet to have what the deceased thought would be an “old fashioned fist fight”. It is alleged that as they shaped up to fight, the accused pulled a gun and shot Mr Chami five times. Witness 1 is said to be a witness to these events and was shot in the buttocks by an associate of Mr Manly as he fled the scene in the immediate aftermath of the shooting of Mr Chami.

4. I should add that, in the alternative to those facts, as I understand it, the prosecution relies on a joint criminal enterprise if there is some doubt about the identity of the shooter in each instance.

Urgency

5. The application comes before me in circumstances of some urgency.

6. On Thursday last week (30 July 2026), following a trial that commenced on 6 July 2026, a jury was discharged when it was unable to agree – either unanimously or by an 11:1 majority – upon its verdicts. Because the case was completed (but for the return of verdicts), comfortably within its five-week estimate, Mr Dalton SC – upon Mr Manly’s instructions – asked the trial Judge, McNaughton J, whether there was a prospect that the re-trial could commence almost immediately. From what I was told in argument this morning, Senior Counsel for the prosecution resisted that course and submitted the matter should be returned to the arraignment list. Mr Dalton indicated that his client sought to make an application for a judge alone trial sitting without a jury.

7. The matter was adjourned overnight to ascertain whether the Court was able to accommodate commencing the re-trial – whether it be with or without a jury – almost immediately. This involved logistical questions as to whether a judge was available (either McNaughton J or somebody else) and whether a suitable courtroom was available. The parties were invited to obtain the necessary instructions.

8. The next day her Honour advised the parties that the Court was likely to be able to accommodate the trial if it were to commence on Monday 10 August 2026. Mr Dalton indicated an application under s 132 would be pursued and Senior Counsel for the prosecution said such an application would be opposed and that enquiries were continuing to ensure that all witnesses would be available over the coming weeks.

9. As I deliver these reasons, it is anticipated the trial will commence on Monday, although that is not certain because the prosecution is still mustering its witnesses. However, it seems likely the case can proceed and a decision on the present application must be made quickly. Because I have other court commitments, both this week and next week, it is necessary to make a decision today and to explain that decision by a brief ex tempore judgment.

The requirement for leave

10. Because the application was made less than 28 days before the date fixed for the trial, leave is required to make the application: CP Act, s 132A(1). This provision is calculated to avoid any appearance of “judge shopping”: R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120 at [33]. In the present case, apart from the lateness of the application, there is no appearance of judge shopping.

11. While the expectation may be that McNaughton J will remain in the case, I am not sure whether the parties have been told with certainty that her Honour will be the trial Judge. Further, her Honour’s identity as the trial Judge was known well in advance of the first trial and she case-managed the trial for around 9 months before a jury was empanelled. The application followed the jury being discharged without verdict and there is no suggestion that her Honour did otherwise than to provide both parties with a fair trial according to law. There is nothing before me that would suggest her Honour made any comment during the trial to suggest she was predisposed towards a favourable outcome for Mr Manly.

12. One of the reasons the accused advances in support of this application is the spectre of a further hung jury. I am satisfied that this submission is made in earnest.

13. Ultimately, the Prosecutor did not resist the grant of leave and, in the circumstances, I grant leave under s 132A(1).

Statutory criteria met and no disentitling factors

14. I am satisfied the accused has sought and received advice in relation to his election to be tried without a jury from an Australian legal practitioner: s 132(6). I am further satisfied that he agrees to be tried by judge alone: s 132(4).

15. I do not consider that the trial will involve a factual issue that requires the application of objective community standards: s 132(5). There is to be no issue of reasonableness, negligence, indecency, obscenity or dangerousness or any other matter that would mean that a jury is in a better position to adjudicate the matter than a judicial officer would be.

Relevant considerations based on the authorities

16. There is no presumption in favour of a jury trial: see, for example, R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 including at [96]. On the other hand, an accused does not have a right to demand a trial by judge alone: R v Simmons; R v Moore at [58]-[59]. However, the fact that an accused person seeks such an order, having received legal advice, is a relevant consideration in determining where the interests of justice lie: see, for example, R v Belghar at [99].

17. There are advantages and disadvantages to both forms of trial. A jury trial enjoys the benefit of unanimity in the verdict (or near unanimity if a majority verdict is reached). However, the reasons for the verdict are never known, whereas a judge is required to provide full and adequate reasons for their decision. There is a benefit of transparency in the requirement for reasons in a judge alone trial.

18. I have written about the considerations that may arise on a contested application under s 132 on a number of previous occasions and I approach this case in the same way that I approached those earlier cases: see, for example, R v Simmons; R v Moore, R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274; (2016) 265 A Crim R 575 and R v Qaumi & Qaumi [2016] NSWSC 1473.

19. Time does not permit me to restate the relevant principles, except where they have particular relevance to the present application based on the material before the Court. However, it is worth repeating the observations of Beech-Jones CJ at CL in R v Dawson [2022] NSWSC 552 to which I was taken by Senior Counsel for the prosecution (footnotes omitted):

“10. Generally, the phrase ‘interests of justice’ envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also ‘interests wider than those of either party’ (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 (‘Belghar’), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict.”

20. His Honour went on at [11]-[12] to cite (without criticism) several of my observations in R v Simmons; R v Moore. R v Dawson was an extreme case of prejudicial publicity and the Chief Judge (as he then was) granted the application for a trial by judge sitting alone and without a jury.

The evidence and submissions on the present application

21. The accused read an affidavit of his solicitor, Mahmoud Abbas, sworn 3 August 2026. That affidavit set out a brief chronology of the litigation and annexed a number of media articles which make reference to the accused and to the case. These articles are relevant to an argument that the publicity may create prejudice against the accused that cannot be cured by direction.

22. The accused also tendered the transcript of the closing addresses of Senior Counsel for both the prosecution and the defence.

23. The Prosecutor read an affidavit of the solicitor with carriage of the matter for the Director of Public Prosecutions. That affidavit set out a somewhat fuller chronology but also explained the steps that have been taken to ensure the trial is ready to commence next Monday. At this stage, it is not 100 percent clear that the prosecution will have all the relevant witnesses available over the coming weeks although most have confirmed their availability and the Prosecutor’s original pessimism, as he described it himself, has been replaced by cautious optimism.

24. Ms Strati’s affidavit annexes the opening statements of the Senior Prosecutor and Senior Counsel for the accused along with a document described as a “trial plan” which sets out the witnesses, exhibits and MFIs, and the approximate order in which they would be called or referred to in the evidence.

25. In addition to that material, I was also taken to Exhibits U, V and W from the trial to provide me with a better contextual understanding of the issues in the trial and the significance of the evidence of Dr Sorell, who is the expert who gave lengthy evidence at the trial concerning the interaction of relevant telephones with cell towers and how the jury should or might interpret such interactions.

26. During the oral submissions, five jury notes were tendered. These went largely to the issue of the jury’s comprehension of the expert evidence.

27. Mr Dalton’s written submissions refer to the six matters in support of his contention that it is in the interests of justice for the trial to be conducted without a jury, including:

28. Prejudicial media coverage.

29. The complexity of some of the expert evidence.

30. The fact that the accused, on legal advice, seeks to be tried by Judge alone and thereby foregoes his right to a jury trial.

31. The desirability of finality. That is, having already litigated for four weeks to a hung jury, it is in the interests of justice that a verdict is reached. The only certain way to achieve that is to order that the case be tried by a judge sitting without a jury.

32. Mr Dalton also makes the point that there is no presumption in favour of a jury trial and that there are no matters that give rise to questions to be judged against community standards. He also relies on the likelihood that a judge alone trial will be more efficient and shorter, and the cost to his client of a repeat of a somewhat lengthy jury trial.

33. The Prosecutor submitted that the “interests of the accused are not necessarily the interests of justice” – a proposition that cannot be disputed and receives support in the authorities. The interests of justice are of a much wider import. The Prosecutor also submitted that the expert evidence in the case, while technical in the case of the “telephone location evidence”, “was not incomprehensible nor overly difficult to follow”. Furthermore, “the trial did not involve competing experts” on any topic.

34. The Prosecutor contrasted the situation in R v Batak (No 6) [2025] NSWSC 658 with the position of the accused in the present case when it came to considering the desirability of finality set against the history and complexity of the litigation. Mr Batak’s first trial was aborted. He was convicted at his second trial, but his conviction was quashed by the Court of Criminal Appeal which ordered a re-trial. The DPP then obtained a grant of special leave before the full High Court which confirmed the order for a re-trial but on a different legal basis. The extensive delay and the complexity of the history of the litigation can be contrasted, on the Prosecutor’s submission, with the situation in Mr Manly’s case.

35. Finally, the Prosecutor submitted that the publicity in this case is neither sustained nor of an unduly prejudicial nature.

Consideration and conclusion

32. There is nothing in the present case that sounds firmly in favour of a jury trial. For example, it is not a case where community standards are to be applied in making relevant findings. Quite properly, Senior Counsel for the Prosecution did not suggest otherwise. Rather, his submissions were directed to pointing out that the matters relied on by the applicant are not particularly strong in this case and that they do not “singly or in combination justify the making of an order that there be a judge alone trial”.

33. I accept the thrust of the Prosecutor’s submissions as to each individual matter relied on by the accused and I am not satisfied that any of the individual factors pointed to by Mr Dalton is sufficient, of itself, to warrant a finding that it is in the interests of justice to make the orders. However, in combination, they are more powerful.

34. The publicity around the case is unfortunate and capable of creating prejudice. At least one of the articles refers to Mr Manly’s alleged association with the “Haouchar crime network” and describes him as a “senior figure” in the network. There is also reference to the accused as “an alleged underworld assassin” and a headline referring to “underworld killer Ayman Manly”. There is reference to the previous hung jury, the fact that Mr Manly has bail, and a politician’s inappropriate public statement in which he referred to Mr Manly’s bail conditions as “bullshit”. I do not underestimate the potential for such material to cause prejudice in the mind of a lay juror.

35. Even so, the Prosecutor is correct to say the publicity is not sustained and is of far less toxicity than that which prevailed, by way of example, in the Qaumi case, or in R v Dawson, or in Arthurs v State of Western Australia [2007] WASC 182. However, nothing in the evidence to which I was taken suggests the case was presented to the jury as an instance of a gangland shooting.

36. The prejudicial media coverage can probably be cured by a combination of jury selection and judicial direction. Most of the articles annexed to Mr Abbas’ affidavit pre-dated the trial and, it would seem, did not cause the trial to miscarry. No doubt, firm directions were provided throughout the trial to ensure the jury focused on the evidence. During or just after the trial there were two other articles published which included a report that the jury was unable to reach a verdict. While I consider the publicity to be a relevant consideration, it is not a case where there has been an avalanche of prejudicial publicity.

37. I do accept, having read the closing addresses of the barristers at the trial, that there is some complexity to the expert evidence concerning the cell towers and telephone locations. I also accept that Dr Sorell’s evidence is extremely important in the case and occupied about three days of evidence and more than 200 pages of a 600-page transcript.

38. I accept the Prosecutor’s submission that it is merely part of a much broader circumstantial case and I note the telephone communication chart (Exhibit U1 at the trial) and the recorded conversation in Exhibit W, each of which will inform the tribunal of fact’s conclusions as to Mr Manly’s state of mind at the relevant time.

39. I am not convinced that the fact that Dr Sorell’s evidence does not stand alone in placing the accused at or near the scene, or being in contact with relevant people at relevant times, deprives Mr Dalton’s submissions of all their force. Even so, a jury is capable of understanding such evidence and bodies of evidence of a similar kind, along with expert evidence to explain the data, is often led in cases to be decided by a jury.

40. Again, as with the publicity, I accept the length and complexity of the expert evidence is relevant, but it is not a feature to which I attribute great weight. Based on the closing addresses of Senior Counsel for both sides at the trial, and the questions asked by the last jury, the evidence will (or would) be understood by a lay jury.

41. I consider it to be important that, after such a lengthy period held on remand and then strict bail conditions, the accused is now prepared, on the advice of his experienced legal team, to forego his right to a jury trial: cf R v Belghar at [99] and R v Adams (No 2) [2016] NSWSC 1359. That election is never determinative but is more significant in the context of the present case and the failure of the jury to reach a verdict in the first trial. In R v Belghar*,* McClellan CJ at CL said at [99]-[100]:

“In so far as the origin of a trial by jury was to provide a protection for the accused, in that he or she would be tried by their peers, where the accused applies in accordance with s 132 for a judge-alone trial, it is plain that the accused has, with proper advice, determined that the protection is not required. For this reason the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in his or her desire to dispense with a jury, must be a relevant factor: Arthurs at [79]. The protection which trial by jury is assumed to provide to an accused person by requiring a unanimous verdict of lay judges is no longer of relevance. Of course, the position as determined in Brown is otherwise with respect to a Commonwealth offence, where s 80 of the Constitution controls the situation. However it must be remembered that Brown was a decision as to the meaning of s 80 and was not, at least so far as the majority were concerned, determined by where the interests of justice may lie. Rather, their Honours concluded the position was constrained by the words of the Constitution

Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, ‘in the interests of justice’, that there should be trial by jury. However, where, as in the present case, the trial will 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.”

42. Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, “in the interests of justice”, that there should be a trial by jury. However, where, as in the present case, the trial will 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.

43. It is true, as the Prosecutor submitted, that the complexity of the background and chronology of the litigation is not as extreme as in R v Batak, where the case had gone all the way to the High Court and back. That history was important, although not determinative, in the analysis undertaken by Yehia J. Her Honour ultimately granted the application for a trial by judge order by reference to a combination of factors. On the subject of delay and the history of the case, Yehia J said at [62]:

“Efficiency and finality are separate but related concepts in this case. Given the protracted, and somewhat unusual, history of this matter, it is in the interests of everyone, including the accused, the deceased’s family and the community, that these proceedings are conducted efficiently and proceed in such a way as to ensure finality of the proceedings.”

44. In Mr Batak’s case, six years had passed between the alleged offence (April 2019) and the application before Yehia J (June 2025). That may be contrasted with the present case where the offence allegedly occurred in March 2022 and it is now August 2026. A delay of four years, while regrettably not an exceptional one when there are re-trials in this Court, remains a relevant consideration in the way explained by Yehia J in R v Batak.

45. This is not a case where the accused can point to a single feature of the case that overwhelmingly favours a judge alone trial. However, the material he presents overcomes any “evidentiary burden” cast upon him. There is no countervailing consideration which favours a jury trial.

46. Considering all the circumstances, giving particular weight to the delay, the desirability that the litigation reaches a conclusion, and the accused’s informed choice to forego his right to be judged by a jury of his peers, I consider it to be in the interests of justice to make the order for a judge alone trial. I am fortified in that view by the other matters raised on the application.

Orders

47. Accordingly, I make the following orders:

48. Leave is granted under s 132A of the Criminal Procedure Act 1986 (NSW).

49. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the accused is to be tried by a judge sitting without a jury.

50. Noting the prospective trial date of Monday 10 August 2026, the matter is adjourned for further directions before McNaughton J at 2:00pm today, 5 August 2026.

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Amendments

20 August 2026

Coversheet - corrected representation