R v Parker

Consideration

1. The question whether leave ought be granted is principally determined by the merits of the substantive application and the explanation for the delay. Accordingly, before determining whether leave ought be granted, I will turn to the substantive application itself and the grounds put forward on behalf of the applicant for the proposition that it is in the interests of justice that the trial be by judge alone.
2. The principles are not in issue. There is no presumption that a criminal trial should proceed with a jury. Thus, there is no burden of proof on an applicant under s 132 to displace any such presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at [96] and [118]. However, as Johnson J said in R v McNeil [2015] NSWSC 357; (2015) 250 A Crim R 12 at [28]: "That does not mean, however, that the choice between trial by jury and trial by Judge alone commences with a blank canvas. The courts have recognised the important role of juries, drawn from the community, in the administration of criminal justice in this State."
3. Against this, there is a significant advantage or potential advantage to an accused person in being tried by judge alone. Judges are accustomed to putting matters out of their minds which are not germane to rational decision-making and are required to undertake their judicial role dispassionately. Whilst juries are invariably instructed and directed to apply the same principles to their own decision-making, it may be accepted that it may be more difficult for members of the jury to do so when they are required to do so on a single occasion for the purposes of a jury trial than for judges for whom such eradication of emotion and prejudice is a daily discipline.
4. Furthermore, McClellan CJ at CL said in Belghar at [112]: '[T]he requirement for a judge to give reasons [is] a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial."
5. Of present relevance, Mr Ozen points to the relative interest and novelty of the facts of this case when it comes to a consideration of manslaughter by criminal negligence. He has referred me to the decision of the High Court in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 which concerned criminal liability for negligent conduct in circumstances not dissimilar to the present.
6. As Mr Ozen has summarised, the Crown case is that the applicant injected the deceased with heroin or assisted him to inject himself with heroin shortly before he died. On that basis, the Crown will, in due course, submit that the applicant is guilty of manslaughter by unlawful and dangerous act. However, even if the jury is not satisfied that the applicant either injected the deceased or assisted the deceased to inject himself, the question arises whether the applicant owed the deceased a duty of care. This question may arise, for example, if the applicant merely supplied heroin to the deceased and was present when he overdosed.
7. Mr Ozen contended that, as the law of manslaughter by criminal negligence is not particularly well-developed, particularly in factual circumstances such as the present, it would be advantageous, not only for the applicant but also for the administration of justice for the reasons to be articulated by a judge, rather than left completely opaque, as they would be in a trial by jury. He submitted that, if the applicant were to be tried by jury and convicted, he would not even know whether he was convicted of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence.
8. Mr Ozen also submitted that the spectre of a disruption to the trial in the event of an application under s 5F of the Criminal Appeal Act 2012 (NSW) (if I were, for example, to prevent the Crown from putting criminal negligence to the jury) would be entirely removed if the trial were by judge alone.
9. Mr Ozen also contended that whereas it is generally accepted that where a decision involves the application of community standards, such as negligence or dangerousness, this is not such a case, notwithstanding the Crown's reliance on manslaughter by unlawful and dangerous act. Mr Ozen submitted that he would concede that, if the jury were satisfied that the applicant was responsible for injecting the heroin into the deceased's vein, that act was a dangerous act for the purposes of manslaughter. Mr Ozen says, in those circumstances, there is no particular advantage in having a jury, since the jury would not need to determine whether the act was dangerous, it being the subject of specific proposed concession on behalf of the applicant.
10. Mr Ozen also submitted that, while he accepted that juries are to be assumed to abide by judges' directions, the present case is one where both the applicant and the deceased will be known by the tribunal of fact to be part of a milieu in which illegal drugs are traded and used. He submitted that there would inevitably be a deal of prejudice associated with that environment which would not operate on a judicial mind, but might operate on the collective mind of a jury, notwithstanding careful directions given by the trial judge. He submitted that, in those circumstances, the potential prejudice to the applicant could be removed entirely by having a trial by judge alone. By contrast, if there was a trial by jury, the applicant's rights could only be protected to the extent to which the jury abided by my direction. He submitted that there is no guarantee that the jury would put their prejudices aside; and the applicant would, in effect, never know what effect such prejudice may have had on the jury's deliberations.
11. Mr Ozen has also raised the matter of the applicant's demeanour. He has pointed to evidence which will be relied upon by the Crown which indicates that, at the relevant time and shortly before and after, the applicant was behaving in a bizarre and confronting fashion. Further, there is evidence which may be adduced by the Crown that the staff working at the Matthew Talbot Hostel, where the deceased and applicant were resident, noticed that the applicant had been behaving strangely in the week leading up to the night of the deceased's death. There is also some reference in the Crown evidence to the applicant being in a state of constant intoxication. Mr Ozen submitted that those matters are potentially highly prejudicial to the applicant and, on that basis, it would be in the interests of justice that the trial be heard by judge alone. Mr Ozen has also submitted that the jury may well, by reason of the applicant's allegedly bizarre behaviour which is recorded on CCTV footage be distracted from the actual evidence upon which the Crown will ask them to draw that inference. Further, Mr Ozen has raised a residual concern that the jury may impermissibly take into account this evidence in determining a crucial fact for the jury's determination: namely, whether the applicant did place the needle in the deceased's arm or assist in the injecting process; or whether he merely supplied the heroin which the deceased himself injected.
12. Mr Ozen, as I have earlier said, has submitted that the importance of the evidence of Mr Chick ought not be underestimated and that the jury may, notwithstanding careful directions, not fully appreciate that less weight is to be given to Mr Chick's statement if indeed I admit it because he has not been cross-examined. This, too, is a matter on which the applicant relies in support of the application for a judge alone trial.
13. Mr Ozen has also raised the issue of causation which arises in stark form if the jury is obliged to consider manslaughter on the basis of criminal negligence. He has submitted that there will be a body of medical opinion regarding the effects of heroin on the body and the mechanism of an overdose. For present purposes, the tribunal of fact will need to consider how long it would have taken for heroin intravenously ingested by the deceased to have caused an irreversible level of toxicity in his blood. That is relevant to the issue of causation and the question whether, had the applicant not breached the alleged duty of care, the deceased would have nonetheless died. If the applicant, for example, had immediately called Triple-0 or the staff of Matthew Talbot Hostel as soon as the deceased, on that scenario, injected himself with heroin, the question may arise whether it would it have been possible to save him in any event.
14. Mr Ozen submitted that the determination of such a question, which depends on the analysis of detailed and complex medical expert evidence, would be a basis for ordering a trial by judge alone. He submitted that judges are commonly required to assess and analyse evidence of that complexity; whereas a jury may be distracted by, perhaps, an emotional response of either sympathy for the deceased or otherwise and may be less inclined to undertake the detailed analysis which would be required, notwithstanding careful directions from the trial judge. He submitted that, if a trial by judge alone were ordered, there would be no risk of this issue being either discounted or ignored as a technicality unworthy of proper consideration.
15. The Crown opposes the application and submits that there is no reason to suppose that the jury would not be in at least as good a position as a trial judge to determine the issues raised by Mr Ozen. Further, the Crown emphasised the benefits to the community of collective decision-making in that the administration of justice would have the benefit of 12 minds operating collectively as the tribunal of fact, rather than a single identified judge, albeit one who would be obliged to give reasons.
16. The Crown submitted that the possibility of prejudice ought not be sufficient to incline me to order a trial by judge alone since it is the common experience of this Court and other Courts that many of those who come before the Courts and are tried by juries cannot be said to have led model lives. Many accused persons may, perhaps as a matter of daily habit or as part of their livelihoods, engage in illegal acts such as drug-using or trafficking.

Conclusion

1. Having weighed all these matters, I consider that it is appropriate to grant leave to the applicant, pursuant to s 132A(1) of the Criminal Procedure Act to make the application pursuant to s 132 of the Criminal Procedure Act. However, I do not consider it to be in the interests of justice to order the applicant to be tried by judge alone. In my view the benefits of collective decision-making in this case have not been outweighed by the matters raised by Mr Ozen.
2. While there is force in each of the matters Mr Ozen has raised, and there will be a need for careful directions, I am not persuaded that the interests of justice would not be better served by a trial by judge alone. Indeed, I am satisfied the interests of justice in this case would be particularly well-served by having the applicant tried by a jury, notwithstanding that obviously the jury is not required to give reasons for its verdicts. I am satisfied that the jury would not be likely to be deflected from its task by either prejudice relating to drug-taking or the activities in which the applicant and the deceased were habitually involved.
3. I do not see it as a disadvantage that the applicant, if convicted, will not know which type of manslaughter formed the basis of the jury's decision. Indeed, individual jurors are entitled to come to a verdict of guilty by different paths and such paths include different categories of manslaughter. Thus, it is at least possible that, if the applicant is convicted, the jurors will not be unanimous about the category of manslaughter, although they are unanimous about their verdict: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198; R v Dally [2000] NSWCCA 162; 115 A Crim R 582. It is generally inadvisable for a trial judge to question the jury as to the basis of a verdict of manslaughter, it being a matter for the sentencing judge to find the relevant facts consistently with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374.
4. Matters relating to negligence are entirely suitable for juries. Civil juries used commonly to decide negligence cases. In addressing the a civil negligence case, Gleeson CJ said in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 "[7] The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly. The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision. In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community, properly instructed as to their duties, deciding the facts, on the evidence, as a group. In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given. In the administration of criminal justice in Australia, the former process is normal, at least in the case of serious offences . . . decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards."
5. In my view, there are significant advantages to a trial by jury in the present case, not least the "acceptability" of a decision made on the basis of the "collective wisdom" of twelve members of the community. This is particularly so where there may be issues about whether the facts are such as to give rise to a duty of care. While Mr Ozen conceded that if a duty were found, breach would be admitted, I do not consider the question of criminal negligence can be dealt with so readily. Much will depend on the evidence at trial.

Orders

1. For the reasons set out above I make the following orders: 1. Grant leave to the applicant to make an application under s 132 of the Civil Procedure Act 1986 (NSW) for an order that he be tried by judge alone. 2. Refuse the application for an order that Mark Parker be tried by judge alone

Amendments 18 July 2018 - Trial completed 20 July 2018 - Restriction lifted 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: 20 July 2018