R v Quintana

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] NSWCCA 86 at [96] (McClellan CJ at CL) and at [118] (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 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 efficiency 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 could 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 were three principal reasons set out by counsel for the accused, Mr Evers, in his written submissions as to why the interests of justice favour a trial by judge alone: first, prejudicial evidence and evidence of other criminal activity by the accused will be introduced in the trial; second, the complexity of directions arising from the applicant's mental illness and its application to the accused's self-defence; and third, what was said to be the "limited role" that the application of community standards will play in the ultimate determination of issues in the trial.
2. In oral submissions Mr Evers emphasised that given that the interests of justice is the issue, and the critical need for there to be a fair trial, I must consider that there is a real risk that the jury will take into account irrelevant considerations. All of the concerns should be looked at together, specifically that two of the witnesses are young women to whom the accused is said to have provided drugs and that members of the community may well ask why a 53-year-old man is doing that. The other serious prejudice that members of the community may well have, is that the accused is a man with a serious untreatable psychiatric illness, and that these facts, together with the fact that he is accused of stabbing someone to death, may well operate on the mind of the jury to lead them to be hesitant to arrive at a verdict of not guilty because it would "release onto the streets" a seriously mentally ill and dangerous man. Mr Evers argued that this underlying, and maybe unacknowledged prejudice, could not be met by any direction to the jury.
3. Mr Evers submitted that these concerns were not matters that could be the subject of evidence, but were matters about which I should take judicial notice. He referred to s 144 of the Evidence Act 1995 (NSW) which provides as follows; 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
4. Mr Evers also referred to Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 per McHugh J at p. 17, arguing that the factors he has referred to fall within the type of matters considered by McHugh J to be "notorious facts judicially noticed without inquiry".
5. Mr Evers also argued that the often cited statement of McHugh J in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] does not support the reiterations of it to the effect juries in fact do what they are directed to do. McHugh J said at [31]; "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although "[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong".
6. Mr Evers emphasised that this Court should distinguish the circumstances and the prejudice dealt with by the NSWCCA in Belghar because there the Court was dealing with a very large group of people and a very generally expressed prejudice whereas here, there was a combination of factors, supported by evidence, that underpinned the identification of a very small and specific class of people like the accused, who are at risk of not receiving a fair trial because of the combination of his criminal activity, drug use, young female associates, unusual demeanour and treatment resistant schizophrenia.
7. Mr Evers also argued that in addressing the self-defence issue, the jury will be asked to bring into account their own experience of life and common sense, but in applying the test of "reasonable response" to the circumstances as the accused perceived them to be, even with the assistance of psychiatric evidence, this is something that a jury will not be able to do. A judge is much better trained to understand complex psychiatric evidence and its application here, and a judge is much better trained to put aside any prejudices he or she may have. These considerations and concerns feed directly into the interests of justice analysis that has to be carried out for the purposes of considering whether the application for judge alone trial should be granted.
8. Mr Evers acknowledged that the partial defence of substantial impairment has a role to play at the trial given the provisions of s 23A of the Crimes Act 1900 (NSW); 23A Substantial impairment by abnormality of mind A person who would otherwise be guilty of murder is not to be convicted of murder if (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
9. Mr Evers submitted however that the application of community standards entailed in the second part of the substantial impairment partial defence, is something that "only comes into play at the end" if the Crown is able to rule out the self-defence case beyond reasonable doubt, and therefore, has less primacy.
10. Mr Evers also submitted that the interests of justice should take into account the potential delay and the length of trial before a judge alone as opposed to a jury. He argued that it was permissible on the authorities to do so, given the statements of McLellan CJ at CL in Belghar and McCallum J in R v Gittany [2013] NSWSC 1503, and that this trial may well be up to a week shorter before a judge alone.
11. In respect of the last point, I do not agree that McCallum J's decision stands for such a bald proposition. Indeed, such a bald proposition seems to fly in the face of other authorities from the NSWCCA. In Gittany, McCallum J carefully analysed a number of relevant factors, none of which involved a comparison of efficiencies between a judge alone trial and a jury trial. Her Honour's decision dealt with more nuanced factors than that. Her Honour concluded that the length of a trial in the context of consideration of potential exhaustion of the accused's available funds was a factor to take into account, given the spectre of the accused being left without legal representation for the trial and that the trial needed to proceed quickly and smoothly with other critical considerations being also the availability of the eyewitness and the presence of the family of the deceased who had travelled from overseas: (Gittany at [44]). McLellan J in Belghar suggests it may be a relevant factor "in the mix", where there is consideration required to jurors spending "many months" on a trial and where a long trial relates to complexity of issues: at [110]. However I do not agree that this is such a case, or that the considerations addressed by McCallum J apply here. The trial has only a three week estimate.

Crown submissions

1. The Crown submitted that it is accepted that the accused's drug use and provision of drugs to Crown witnesses is a relevant part of the factual matrix in which the offence is said to have occurred and that this evidence needs to go before the tribunal of fact, however the Crown rejects that such information would be used as evidence of bad character in contravention of any direction of the Court. Directions will obviously be given to the jury that they are not to use evidence of the accused's drug use or supply as evidence of bad character. As stated in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] per Gleeson CJ and Gummow J; "[13] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges".
2. See also R v Stanley [2013] NSWCCA 124 at [50]; "[50]… Accordingly, this Court assumes both that the judge who presides at the respondent's trial will warn the members of the jury, if there is one, that they are not to allow any prejudice they feel to affect their decisions and that the jury will understand and follow the direction".
3. In response to the claim that the jury may turn against the accused because he associates with young women to whom he supplies and who use the drug ice, the Crown referred to the following statement in Stanley at [42]; "[42] In deciding whether or not to make an order for trial by judge alone the Court must decide where the interests of justice lie. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. The Court should not assume that either form of trial is more desirable than the other: Arthurs v State of Western Australia [2007] WASC 182 at [75]; R v Belghar at [49]. The interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made: R v Belghar at [96]. An applicant bears no burden of proof. However, the applicant does bear an evidentiary burden. The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46]".
4. In response to the submission that the accused had an unusual appearance and his mental illness caused him to voice strange ideas and therefore the jury may irrationally fear him and this may impact on their deliberations, the Crown noted Stanley; "[48] Trial courts assume that members of juries may be prejudiced. They assume that members of juries may react emotionally to disturbing evidence. That is why trial judges always warn juries that they are not to allow emotion or prejudice to play any part of the process by which they reach their decisions".
5. The Crown submitted, correctly, that issues of mental illness and self-defence are matters that regularly arise in the conduct of murder trials. The jury will have the benefit of the evidence of Dr Greenberg and Dr Furst to assist in understanding the issues.
6. Juries are also often being directed about the second limb of self-defence and will be required to make an assessment of whether the conduct of the accused was reasonable, having regard to the circumstances as the accused perceived them. This is the very type of matter specifically referred to in s 132(5) as enlivening the discretion for refusing an application for a trial by judge alone. The type of direction given to a jury dealing with the second limb of self-defence is one that is not difficult to apply.
7. The Crown also drew attention to the second limb of the partial defence of substantial impairment that clearly requires the application of community standards to the question of whether the impairment, said to have been suffered by the accused, was so substantial as to warrant his liability for murder being reduced to manslaughter. The submission by Mr Evers that the application of community standards has "a limited role" in the trial is simply not correct.
8. The application of community standards is also a matter specifically referred to in s 132(5) as one enlivening the court's discretion to refuse to make an order for judge alone trial.
9. Overall, the Crown submitted that the trial was one in which the application of community standards played a significant role, and that these matters are best determined by a jury.

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. The decision of a jury of twelve evaluating in particular self-defence and substantial impairment issues, is more consistent with the interests of justice than a sole arbiter in the circumstances of this case.
3. The authorities are clear that I should not proceed on the basis that a jury will ignore directions given to it.
4. The combination of factors identified by Mr Evers raise an ill-defined apprehension or vague suspicion that the jury will not give the accused a fair trial. As was made clear in Belghar and Stanley, to order a judge alone trial on that basis, is to fall into error.
5. Nor do I accept that I can take "judicial notice" that the factors identified combine to demonstrate that a fair jury trial cannot be given to the accused.

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