R v Quintana

Background to the proceedings

1. The accused stands charged with the murder of Thomas Halatoa, (also known as Thomas Booth), on 18 February 2018. The Crown case, put briefly, is that the accused stabbed the deceased with the intention of causing him grievous bodily harm in the context of the deceased, Nadine Tairi and Tekawau Opai attending his unit in Tregear, smoking ice together, but then the deceased and Mr Opai assaulting and robbing him.
2. The accused has been diagnosed with long term treatment-resistant schizophrenia. There is no fitness to plead issue. He was committed for trial on 14 March 2019.
3. On arraignment on 3 May 2019 before Fullerton J, he pleaded not guilty to murder. Fullerton J allocated a trial date of 3 February 2020 with a 3 week estimate to proceed before a jury. That date was confirmed at a directions hearing before Fullerton J on 6 September 2019.
4. At trial the accused will raise self-defence as well as the partial defence of substantial impairment. It is uncontroversial that each of those defences raise questions of the application of community standards as a key component.
5. Unfortunately the Crown had failed to secure the attendance of an important eye witness - Ms Tairi - who was critical to both the Crown and the defence case.
6. On 29 January 2020 the Crown made an application to vacate the trial date. The application was not opposed by the accused because of the critical importance of Ms Tairi. A further date was provided by the Court for trial on 28 April 2020. The Crown was required to continue its efforts to secure the attendance of Ms Tairi, including pursuit of her extradition from New Zealand.
7. In early March 2020 the Crown requested a directions hearing, held on 2 March 2020, to update the Court with developments, which included that Ms Tairi had been charged with a criminal offence in New Zealand which added further complications to her potential extradition.
8. In light of the COVID-19 pandemic, the Court convened in early April 2020 and raised with counsel the potential need for adjournment of the trial listed on 28 April 2020 because of logistical difficulties proceeding. In addition to the inability to extradite Ms Tairi due to the COVID-19 related lockdown of New Zealand, there were problems with the attendance of two elderly witnesses, one of whom was undergoing cancer treatment. It was perceived also that there would be possibly insurmountable difficulties with securing a Filipino interpreter to interpret the proceedings, because of the embargo on witnesses, interpreters or the accused physically attending Court. This combination of factors made it evident that the trial could not proceed on 28 April 2020. Counsel for the accused, Mr Evers made it clear that he would later re-agitate the accused's application for a judge alone trial when the position became more clear.
9. At about this time the Supreme Court and other Courts in New South Wales vacated all existing jury trial dates for April and May 2020, given the restrictions imposed by the Government on persons leaving their homes and the obvious effect this had on the ability to empanel a jury and conduct criminal trials with a jury.
10. On 29 April 2020, pursuant to directions, the Crown filed an affidavit of Mr Johnston, solicitor, updating the position regarding Ms Tairi's availability. The affidavit included reference to the position that Ms Tairi was yet to enter any plea to the criminal charges she was facing in New Zealand, that her matter had been adjourned to 25 May 2020, and that there was no advance in information as to when extradition of Ms Tairi could occur. The position in New Zealand was also complicated by the arrival of the COVID-19 virus and the fact that New Zealand was in full lockdown for a lengthy period, although more recently some New Zealand Courts have begun to function.
11. On 1 May 2020 the matter was included in the arraignments list before Fullerton J. Her Honour listed the matter for trial on 26 October 2020 with a 3 week estimate. As Mr Evers had notified the Court that a fresh application for a judge alone trial would be made, a timetable for submissions was set and the application listed for hearing on 29 May 2020.

Evidence

1. Tendered again on the application was a joint bundle of evidentiary material identical to that tendered on the application heard and determined in January 2020. The material extracted provided context to the critical nature of Ms Tairi's evidence as an eyewitness. It also included the expert psychiatrist reports of Dr Furst and Dr Greenberg that underpin the accused's self-defence and partial defence of substantial impairment arguments.
2. Annexed to Mr Evers' submissions was an election signed by the accused indicating that he had been given advice by his barrister and that he elected to be tried by judge alone in respect of the charge of murder.
3. The Crown tendered a 7 page transcript of the evidence given by Ms Tairi on 3 February 2020 in support of the Crown's application to have Ms Tairi give her evidence from New Zealand by AVL. The Crown also read Mr Johnston's affidavit of 29 April 2020 to provide updated information in relation to Ms Tairi's circumstances.

Legislation

1. Prior to the enactment of s 365, the requirements that governed applications of this kind were set out in s 132 and 132A: 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. 132A Applications for trial by judge alone in criminal proceedings (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless - (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. (3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury. (4) Rules of court may be made with respect to applications under section 132 or this section.
2. The wording of s 365 makes it clear that unlike s 132, the Court is not reliant upon either party making an application for the criminal proceedings to be tried by a judge alone and can do so of its own motion. However the Court must only make such an order if the accused person consents, and if the prosecutor does not agree, the Court must consider whether it is in the interests of justice for the accused person to be tried by a judge alone, once satisfied that the accused has received the necessary advice.
3. Focus should be placed on s 365(3) which provides that the section applies, "despite any other provision of this Act, including s 132 and 132A".
4. There has been no decision regarding the interpretation and or interplay of these sections in this Court. Various decisions in the District Court have considered the interaction of these provisions to mean that s 132 has been made effectively subordinate to s 365 in cases where an accused makes an application for a judge alone trial.
5. Whilst the notice of motion filed in Court on 29 May 2020 by the accused was expressed to be an application pursuant to s 132, counsel for the applicant, Mr Evers, agreed that in effect, the application is made pursuant to s 365.

Submissions as to what law applies

1. The Crown submitted that because the legislation is expressed in terms of a 6 month "sunset clause", I should consider it not to be anything other than a "temporary measure to deal with a public health emergency" at a time where there had been a "suspension of jury trials due to the emergency".
2. It was argued that because the Part commenced on 25 March 2020, by virtue of s 367 of the Act, that Part is repealed on a day 6 months after its commencement "or on any later day prescribed by the regulations". Because there is no later day prescribed by the regulations, s 365 is currently due to lapse on 25 September 2020 which is a month prior to the date set for trial.
3. Because it is understood jury trials will resume in the Supreme Court in late June 2020, this and the other matters identified mean that the Court should have regard to s 132 of the Act, rather than s 365.
4. Mr Evers submitted that this analysis is incorrect. The Court should have regard to the legislation as it is now. The provisions of s 365 are presently in force. There is no need to make any consideration under s 132. The test is now simply whether the Court considers it is in the interests of justice for the accused person to be tried by a judge alone.
5. Even if the Court was required to consider s 132 matters such as those considered in the application determined in January 2020, these considerations should be given less weight in light of the developing COVID-19 situation and the complications associated with it for the processes of empanelling and keeping jurors.
6. It would not make sense to confine the role of s 365 in the way the Crown suggests, as it is evident that the amendment is to deal with the circumstances created by the COVID-19 virus, and that does not cease simply because some jury trials are able to commence after a 2 to 3 month hiatus.

Section 365 currently displaces s 132.

1. I am persuaded that the arguments made by Mr Evers are correct.
2. It seems to me that s 365 temporarily replaces s 132 as the mechanical provision by which a party may seek a judge alone trial. This means that the considerations articulated in s 132(5), when considering the question of the interests of justice, do not have the same primacy and the cases that consider s 132(5) do not have the same binding or persuasive force as they otherwise would.
3. To the extent that I need to, and to highlight the context of these amending provisions, I note the Second Reading Speech included the bald statement that the amendments to the Criminal Procedure Act were made to, amongst other things, "facilitate more judge only trials".
4. This comment was made by the Attorney General in the context of the broader statements in explaining the Bill, describing its function as: "… seeking to prepare New South Wales services and institutions for the impacts of COVID- 19 in line with critical health advice. Broadly the Bill seeks to do three things: first to take immediate steps to address existing barriers in our laws that may get in the way of social distancing; second, to empower our agencies and institutions with the capacity to continue functioning, and third, to build in flexibility so that the government is able to act further as the public health emergency in evolves. Some of the amendments in the Bill are extraordinary, which is why they generally have sunset clauses are between six months to 12 months".
5. In my view there is no need for me to step through a consideration of s 132(5) matters at all but I bear them in mind on the wider question of whether the interests of justice are served by making an order that this particular trial in all the prevailing circumstances should proceed before a judge alone.

Is it in the interests of justice to make the order?

(i) Submissions of the accused

1. Mr Evers pointed out that there is potential unfairness to the accused if there are further delays and postponements or adjournments that are necessitated by the difficulties with empanelling and maintaining a jury during the continued COVID-19 pandemic. The accused's trial has already been delayed for almost 8 months due to no fault of his own. The trial is now listed in late October 2020. He has been in custody since his arrest on 18 February 2018.
2. Even if a jury is able to be empanelled, there are risks that a jury trial would be pushed back to 2021 and there will be further delays, particularly given the other jury trials that have had to be postponed.
3. Second is the potential problem presented by Ms Tairi's circumstances. There is no issue that Ms Tairi's evidence is critical to the case. There is a real issue as to whether she will cooperate and continue to cooperate when pressed in cross-examination. It is evident based on information presently available that she cannot attend New South Wales. The situation remains most uncertain as to whether and when she could be extradited to give evidence. The effect of the evidence that she gave on 3 February 2020 includes the fact that she knew that she had a legal obligation to remain at a particular address for her release on bail but she left that address within weeks and then left the country to avoid having to face a trial. Ms Tairi stated that she did this because she thought she was "too good" to go back to gaol. Her actions demonstrate her disregard for her obligations under the justice system despite what she may say in terms of her intention to now cooperate with the justice system by giving evidence in an ongoing and cooperative fashion at the trial where there is no compulsory process available to force that cooperation.
4. In circumstances where it is inevitable that Ms Tairi's evidence will be subject to sustained cross-examination and her credibility challenged, her willingness to cooperate with the Court's processes in circumstances where there is no way the Court can mandate her co-operation, may well become an issue.
5. Before a jury this is difficult to manage and if it is repeated, may lead to the loss of more than one jury.
6. There is also the issue of the need for Ms Tairi to be warned regarding the privilege against self-incrimination and perhaps for her to be given a certificate pursuant to s 128 of the Evidence Act 1995 (NSW). That adds another potential complication, particularly if it leads to or adds to an uncooperative attitude to giving evidence.
7. These things are manageable with a judge alone trial and some flexibility can be extended to accommodate it, including if necessary descending into a series of findings that the witness is "unavailable" if she, for example, decamps and refuses to cooperate any further with the processes of the Court.
8. Third is the potential difficulty the jury may have in assessing Ms Tairi's credibility over AVL which as presently advised seems to be the likely course in facilitating Ms Tairi's evidence. This is another factor that feeds into the question of the interests of justice.
9. A separate and serious problem is the potential for concerns relating to the COVID-19 virus directly affecting a juror or the availability of jurors. For example, if a juror develops symptoms of a cold or flu, the trial has to stop. It cannot proceed until there has been a relevant break and the juror has been tested. It may be that other jurors will not feel confident proceeding and a new jury has to be empanelled. This may happen more than once.
10. A judge alone trial removes that risk and associated risks of interruption or delay of the trial. It is not in the interests of justice to risk further delays to this trial, particularly given that those predictable risks can be better managed and accommodated by a judge alone trial.

(ii) Submissions of the Crown

1. The Crown's submissions proceeded on the basis that the Court should determine the application in accordance with s 132 and that in effect, my decision in January 2020 was a correct application of those considerations.
2. The Crown submitted that the purpose of the legislation was only to facilitate the conduct of trials in circumstances where trial by jury was not available. It is now potentially available so the Court should revert to s 132 and ignore the existence of s 365 in the context of this application.
3. The Court should not be concerned that there is any risk associated with Ms Tairi's cooperation in these proceedings. The evidence Ms Tairi gave on 3 February 2020 demonstrates a willingness to cooperate with the Court's processes regardless of the circumstances. In support of this submission, reference was made to this evidence: "Q: Are you willing to come to Australia to give evidence in this trial? A: Yes I would, if I didn't have to go to gaol. I don't come because I have come this far, I am working now, I'm no longer on drugs, I am back with all my family and I think I am too good to be sitting in Silverwater, to be honest with you. Otherwise if that wasn't there, I would come over, hands down."
4. I interpolate here however, that answer needs to be read in the context of other evidence given by Ms Tairi. She answered frankly that she had somebody else apply for a passport for her knowing that this was not permitted, she left Australia because she "had no life" and that when Detective Sergeant Rynehart asked her about her willingness to give evidence in the proceedings against Mr Quintana, she replied that she would not attend Australia in person to give that evidence because she was concerned she would go to gaol. Later in her evidence Ms Tairi said that she is "too good, way too good" to go back to gaol.
5. The Crown urged upon me to take Ms Tairi's evidence at face value and conclude that she is willing to cooperate and will continue to cooperate, even under cross-examination.

Conclusion

1. It is not in the interests of justice for the accused's trial to be delayed again or potentially interrupted or delayed by difficulties associated with cooperation on the part of a witness in New Zealand, and/or the obvious potential problems with obtaining and maintaining a jury during a time where COVID-19 infections exist in the community. The position in October 2020 in this regard remains unknown and impossible to accurately predict. It is not out of the question that the operation of s 365 will be further extended under the regulations past September 2020.
2. It is not correct to refer to Ms Tairi's situation as nothing more than one that creates "potential hypothetical" problems. Ms Tairi has demonstrated a willingness to act in her own self-interest by deliberately removing herself from the address at which she was required to live under the conditions of bail and in further breach of bail conditions, obtaining another passport and leaving the country to avoid being apprehended and having to face her trial. She willingly repeatedly flouted the justice system. Not only that, but she used some sophistication to obtain a passport when she knew she was not permitted to do so. A number of the comments Ms Tairi made in her evidence of 3 February 2020 betrayed an intention and a tendency to cooperate with justice processes only if and when it suits her to do so.
3. During the short and polite cross-examination by Mr Evers, this attitude became almost immediately manifest. It remains to be seen whether Ms Tairi cooperates with cross-examination which will clearly be of some range and intensity, given Ms Tairi has given what may be submitted to be five or six different accounts of what she says occurred on the day of Mr Halatoa's death.
4. The combination of factors identified by Mr Evers leads me to the conclusion that it is in the interests of justice that the accused be given a judge alone trial. I appreciate that in the normal course, application of community standards is something better dealt with by a jury as I stated in R v Quintana [2020] NSWSC 22. But this is not the normal course; these are extraordinary times governed by special provisions, and the interests of justice are not served by exposing this accused and all the witnesses who have to give evidence, to the risk of further exigencies and delays in this already delayed trial.

Orders 1. The proceedings are to be tried by judge alone.

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: 09 April 2024