R v White

The Crown Case

1. Mrs Nowland was a resident of Yallambee Lodge in May 2023. An expert report authored by Professor Susan Kurrle, specialist geriatrician, and dated 10 June 2024 has been obtained in preparation for the trial. In her expert opinion, Mrs Nowland's general condition at the relevant time was consistent with dementia, although a formal diagnosis of dementia had not been made at the time of the incident.
2. In the early hours of 17 May 2023, staff at the Lodge observed that Mrs Nowland was holding two steak knives in her left hand and a jug of prunes in her right hand. She held onto these items in each of her hands, resting them on her walker, as she slowly pushed the walker along. Requests by the staff to have Mrs Nowland relinquish the steak knives were unsuccessful. She eventually relinquished the jug of prunes.
3. Whilst armed with the knives, the deceased entered the rooms of three residents. Mrs Nowland wheeled herself out of the first resident's room after a short time. She then entered the second and third rooms, sitting either on the bed or on a chair in each room. Attempts to persuade Mrs Nowland to leave the third resident's room were unsuccessful. She remained seated on a chair with her walker in front of her and the two knives resting on her knees.
4. The staff attempted to contact Mrs Nowland's children, initially without success. In the meantime, staff continued to request that Mrs Nowland relinquish the knives. At one point Mrs Nowland attempted to throw one of the knives towards a carer. That knife fell to the ground without hitting anyone.
5. It was following these events that the in-charge overnight Registered Nurse at the Lodge called triple zero seeking assistance. As indicated above, the deceased was described by the Registered Nurse as "very aggressive" and in possession of a knife.
6. Arrangements were made for an ambulance to attend the Lodge and, due to the mention of a knife, police also attended. One of the attending police officers was the applicant.
7. Upon arrival of the attending officers, Mrs Nowland was seated in a chair holding a knife (having already tossed the second knife away). Attempts to have Mrs Nowland relinquish the knife that she was still holding were unsuccessful. During this interaction the applicant discharged his taser, causing Mrs Nowland to fall backwards, hitting her head on the floor and sustaining a fatal head injury. She died seven days later.

The Elements of the Charge

1. The Crown relies upon two bases for involuntary manslaughter. The first basis is manslaughter by criminal negligence. The Crown must prove each of the following elements beyond reasonable doubt: i) the death of the deceased; ii) the accused owed a legal duty of care to the deceased; iii) the accused committed an act; iv) the act of the accused caused (or was a substantial cause of) or accelerated the death of the deceased; v) the accused's act was negligent in that the accused breached the duty of care which he owed to the deceased; vi) the accused's act amounted to criminal negligence and merits criminal punishment for the offence of manslaughter because: 1. it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and 2. it involved such a high risk of death or really serious bodily harm that would follow as a result of the act.
2. The second, and alternative, basis of liability is manslaughter by unlawful and dangerous act. If the jury is not satisfied of the first basis, the Crown must prove each of the following elements beyond reasonable doubt: i) the death of the deceased was caused by an act of the accused; ii) the accused intended to commit the act that caused death; iii) the act of the accused was unlawful; and iv) the act of the accused was dangerous.
3. An analysis of the elements of involuntary manslaughter and some of the relevant judicial directions are contained in Annexure A to the Crown's written submissions (MFI 2). No issue is taken with that analysis. I have found that analysis extremely useful in considering the second basis upon which the accused relies in support of the application, namely, the complexity of the issues in the trial. I have therefore reproduced that Annexure as Annexure A to this judgment.

Relevant Legislation and Legal Principles

1. The fundamental importance of trial by jury was discussed in Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53, a case involving the operation of s 80 of the Constitution. Gaudron J observed at [80]-[81]: "[80] Trial by jury is so deeply embedded in our judicial process that its importance in protecting the liberty of the individual from oppression and injustice needs no elaboration. However, what is not generally recognised is its importance to the rule of law and, ultimately, the judicial process and the judiciary itself. Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be and, sometimes, are "remote from the affairs and concerns of ordinary people." [81] The participation of the people of this country in the exercise of judicial power, through their service on juries, provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes. … … The participation of ordinary citizens, as jurors in the judicial process renders it necessary that criminal proceedings be understood by all, including the accused. It is, thus, fundamental to the law's guarantee of a fair trial." (Footnotes omitted.)
2. The importance of trial by jury in protecting the liberty of the individual and in promoting public confidence in the administration of justice is of course subject to legislative provisions in New South Wales, which allow for trial by Judge alone.
3. The origin of a trial by jury was to provide protection for the accused, in that he or she would be tried by their peers. As observed by McClellan CJ at CL in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 ("Belghar") at [99], it is for this reason that the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in an election to be tried by Judge alone, must be a relevant factor (see also R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 ("Simmons (No 4)") at [61]-[66]; Arthurs v State of Western Australia [2007] WASC 182 ("Arthurs") at [79]). I have had regard to the views of the applicant. I acknowledge that a decision by an accused to elect to be tried by Judge alone, is a weighty consideration because it reflects a considered decision to forego the protections that are afforded by trial by one's peers.
4. Sections 131-132A of the CPA replaced earlier provisions allowing for a Judge alone trial on 14 January 2011. As Hamill J observed in Simmons (No 4) at [10]-[11], the repealed provisions were in substantially the same terms as one another, whereas the introduction of the new versions of ss 131-132A involved two significant changes. First, although s 132A maintains the requirement that Judge alone applications be made in a timely fashion, applications can be made within a 28 day period before trial, with the leave of the Court. Second, an accused can elect for a Judge alone trial without the consent of the Director of Public Prosecutions. This change was "introduced to remove the form of veto power held by the prosecution": R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729 at [10].
5. Sections 131-132A of the CPA provide: 131 Trial by jury in criminal proceedings Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part. 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.
6. Pursuant to s 132(4) of the CPA, I am required to consider whether it is in the interests of justice that an order be made for a trial by Judge alone. The formulation of s 132(4) confers a wide discretion. The principles relevant to the exercise of that discretion have been considered in a number of decisions of first instance judges in this Court and in the Court of Criminal Appeal: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 ("Farrugia"); R v Stanley [2013] NSWCCA 124 ("Stanley"); R v Dawson [2022] NSWSC 552; R v Niguidula [2023] NSWSC 290; R v Obeid [2015] NSWSC 897 ("Obeid"); Simmons (No 4). A comprehensive analysis of the applicable legal principles appears in the judgment of McClellan CJ at CL in Belghar at [89]-[114].
7. Some of the guiding principles that can be distilled from these authorities are as follows.
8. Firstly, there is no presumption that a trial should be conducted with a jury: R v Belghar at [96]; R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511 at [21(1)].
9. Secondly, an accused is not entitled to a trial by Judge alone simply because he or she has made an election to be tried by a Judge alone. However, the fact that an accused has decided, on legal advice, to relinquish his or her right to a jury trial is a matter to be weighed in determining where the interests of justice lie: Belghar at [99]; Simmons (No 4) at [60]; R v Qaumi (No 14) (Judge alone application) [2016] NSWSC 274 at [22]. It should be noted that a mere unstated apprehension without supporting evidence will not be sufficient: Belghar at [102]; R v Sean Lee King [2013] NSWSC 448 at [40]-[46].
10. Thirdly, the interests of an accused are not necessarily the interests of justice. The community receives important collateral benefits from a trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with the community standards: Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [7]; Stanley at [43]; R v Ahmed [2022] NSWSC 1268 at [67].
11. Acknowledging that the interests of justice are not limited to the interests of an accused, does not detract from the emphasis that should be placed upon the fundamental importance of an accused receiving a fair trial. Underpinning that principle is the presumption of innocence and the substantial consequences that flow to an individual upon a finding of guilt. Furthermore, the interest of the community is not in ensuring that an accused is convicted but in ensuring that an individual accused of a crime receives a fair trial according to law.
12. Fourthly, s 131 of the CPA does not cast a burden of proof on an accused person. Although an accused carries an evidentiary onus, the Court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which "a presumption" of trial by jury is displaced: Belghar at [96].
13. Fifthly, Parliament has made it clear that it may be preferable "in the interests of justice" that there should be a trial by jury where an alleged offence involves objective community standards. Section 132(5) sets out a non-exhaustive list of issues requiring the application of objective community standards, including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness. That does not mean that it necessarily follows, in a case involving the application of objective community standards, that there should be a jury trial. However, whether or not the issues involve the application of community standards is a relevant consideration. Each case will depend upon its own facts and circumstances.

The Evidence

1. The evidence relied upon by the applicant is primarily contained in Exhibits 1 and 2 on the application. Exhibit 1 is the applicant's folder of materials. Exhibit 2 is a USB containing an electronic form of the media articles and social media posts, in addition to 8 video clips that I viewed during the proceedings. Exhibit 3 is a Daily Mail article dated 16 June 2020. Exhibit 4 is a Sydney Morning Herald article dated 19 August 2024 which is said to contain information as to the distribution of the Sydney Morning Herald. Exhibit 5 is a document from the Channel 9 website that is said to contain information as to the distribution of the "Today Show".
2. The affidavit of Brooke Fitzpatrick, sworn on 10 October 2024, (together with Annexures A and B to that affidavit) was also read on the application. Annexure A is a helpful index to the evidence, itemising the media articles and social media posts upon which the applicant relies in submitting that there has been a large degree of relatively recent published material about the death of Mrs Nowland which is highly prejudicial to the interests of the accused in his trial. Annexure B is an expert report authored by Lewis Von Kliem dated 9 October 2024 regarding a threat assessment of Mrs Nowland and the responsive use of force by the applicant in the course of the incident on 17 May 2023.
3. The pre-trial publicity can be loosely separated into three categories. The first category relates to publicity generated in the commercial media which includes articles in the Sydney Morning Herald and the Daily Mail. The second category involves social media posts generated by individuals referred to as Russell Manser and the "Aussie Cossack". The third category relates to social media posts, primarily generated by individuals, in response to media reporting about the death of Mrs Nowland.
4. It is necessary to briefly summarise each of the items referred to in Annexure A of Ms Fitzpatrick's affidavit, by reference to the index provided in that annexure: Reference No Item Source Reach Part 1: Media and Social Media Posts/Articles 1.1 Poster including words "Murdered by NSW Police" Facebook - 'Aussie Cossack' Page 49k followers 1.2 Post including words "Murdered by NSW Police", as 1.1 above Tiktok - @garfieldlover73 2,411 views 1.3 Video recording of 'Dean Mackin Show' with Aussie Cossack as a guest (post dated 29/11/23) X Aussie Cossack account 4.7k views 99.3k followers 1.4 Comments on Daily Mail TikTok post (4 screenshots) TikTok Post had 36.1k views 1.5 TikTok video by @russellmanswerofficial1 calling applicant "rogue" and saying it is murder (dated 4/6/23) TikTok Post had 15.6k views TikTok post by@russellmanserofficial1- "Cannot let them get away with murdering ... " 1.6 & "has got form for being TikTok Post had 18.4k views a rogue police officer" (dated 24/5/23) 1.7 TikTok post by @russellmanserofficial1 - reference to "murder" and "previous form" (dated 25/5/23) TikTok Post had 15.5k views TikTok post by @russellmanserofficial1 - "reputation for being a rogue cop" & "threatening to break 1.8 people's legs" & "reports TikTok Post had 38.9k views coming out about him assaulting people" & references to murder (dated 24/5/23) TikTok post by @russellmanserofficial1 - reference to being 1.9 tasered twice, "she got TikTok Post had 78.1k views electrocuted by two trigger fucking happy fucking cops" (dated 20/5/23) 1.10 TikTok post by @russellmanserofficial1 - "local police are now targeting your nanna" sign TikTok Post had 11,200 views 1.11 TikTok post by @russellmanserofficial1 - Kristian would 110% be killed in mainstream prison & references to murder and that he has been getting away with things for a long time TikTok Post had 126.2k views 1.12 Screenshot of profile of @russellmanserofficial1 TikTok 153k followers 2.4 million likes 1.13 Screenshot of profile of @jahankalantarofficial TikTok 421.4k followers 15.8 million likes 1.14 Screen shot of page of Aussie Cossack Facebook 49k followers Part 2: References in Media to a Previous Incident Involving the Applicant 2.1 Dail Mail article dated 23/5/23 referring to previous incident involving the applicant Daily Mail website - 2.2 SMH article dated 22/5/23 titled 'NSW Police officer who tasered 95-year-old once detained and recorded a man illegally: court' SMH website - 20.8k followers on X 2.3 Rachel Withers (freelance writer with 20.8k followers on X) posts about previous incident, and links SMH article. X (Twitter) 8,014 views on post on X 'Reposted' 52 times 2.4 Daily Mail article dated 23/5/24 referring to previous incident, by Eliza McPhee and Candace Sutton Daily Mail website - 2.5 Comment by Lincoln Godwin on SMH post - "Same cop was filmed illegally harassing people in Canberra outside of jurisdiction" Facebook - Part 3: Opinions by Criminal Lawyers in Media 3.1 7NEWS article dated 26/5/23 with Peter Lavac (barrister or former barrister) commenting that Kristian WHITE should be charged with murder 7NEWS website - 3.2 Sydney Criminal Lawyers article by Paul Gregoire dated 25/5/23 'Fatally tasering great-grandmothers is par for the course for the NSW Police Force' Sydney Criminal Lawyers website - 3.3 Sydney Criminal Lawyers article by Ugur Nedim dated 25/5/23 - suggests that upgrading the charge to murder could be appropriate Sydney Criminal Lawyers website - 3.4 O'Brien Criminal & Civil Solicitors article by Nicole Byre referring to Mrs Nowland being tasered twice Law firm website - 3.5 TikTok post by Criminal Lawyer @jahankalantarofficial, expressing views that it was not at all appropriate to use a taser in this situation TikTok Poster has 421.4k followers Post had 22.8k views Part 4: Various News Articles - Information Inconsistent with Crown Evidence 4.1 SMH article dated 18/5/23 by Perry Duffin referring to Mrs Nowland being tasered on both the chest and back. Title refers to allegation of being tasered twice SMH website - 4.2 Sky News article dated 19/5/23 by David Wu referring to Mrs Nowland being tasered twice Sky News website - 4.3 CBS News article dated 18/5/23 referring to Mrs Nowland being tasered twice CBS News website - Part 5: Posts from Survive the Streets Facebook Group 5.1 Comment by Ka Rina Prodes - "I would normally agree but a 95yo, 43kg frail woman who is using a walker to walk/balance and holding a steak knife is not going to be able to stab anyone faster than the other person can grab he[r] wrist and take the knife off her. Poor judgement shown and a bad decision made unfortunately and I'm tipping the S/C regrets it 100%" Facebook 48k likes on page 54k followers 5.2 Comment by Peter Hallissy - "Sorry, but there is no excuse for this outcome… 9yo woman with dementia and a steak knife and a walker! Grow some balls, wrap a towel around your arm, disarm her and everyone goes home safely/happy. If personal safety was an issue, he shouldn't be in the force. Simple!" Facebook 48k likes on page 54k followers 5.3 Comment by Ray Vader - "Why should a commissioner or any other police for that matter standby a cop who clearly did the wrong thing?... This is not a rolfe circumstance. This is a cop who assaulted an old lady cause he chose not to communicate/contain negotiate/disengage." Facebook 48k likes on page 54k followers 5.4 Comment by Tim Tee - "how about a bit of common sense? How dangerous is a 95 year old woman in a walking frame? How fast can she move? How hard could she stab? Etc etc." Facebook 48k likes on page 54k followers 5.5 Comment by Tim Tee - "If any police officer cannot handle being advanced upon by a 94 year old woman in a WALKING FRAME - they are in the wrong job. So she had a knife - so what?? How much stabbing force could a 94 year old exert? The use of a Taser was absolute overkill." Facebook 48k likes on page 54k followers Part 6: Other Social Media Dialogue 6.1 Post by Margaret Higgins - "if this is the type of coppers the Police Academy at Goulburn is putting on our streets, there needs to be a review of their lessons. Coppers (meaning at least two), scared of a frail 95 years-old woman with Dementia who was using a walker to stand up?" Facebook Margaret Higgins has 3k followers 6.2 Comment by Trixie Jade Pascoe on 7NEWS Sydney post dated 20/5/23 - "There is no excuse at all for this police officer. He has basically taken the life of an elderly woman who was no threat regardless of a knife whilst on a walking frame. To protect herself from the very ppl that are supposedly there to serve and protect. Lock him up. Throw away the key. Send him to the wolves." Facebook - 6.3 Comments such as "terrorists calling themselves police," "Look at the BIG FAT SLOB THAT KILLED THAT BEAUTIFUL WOMAN" etc. Facebook On post by Aussie Cossack dated 27/5/23 6.4 Comment by George Wright - "What this police commissioner needs to do is sack this murderer cop charge him for 1st degree murder then find him guilty fand then lock him up for the rest of his life no parole" Facebook On post by Aussie Cossack dated 27/5/23 6.5 Comment by Pamela Brown - "I am there in spirit MURDER CHARGES for the man, with a badge… That killed that poor woman. Police Commissioner that refuses to do her job, but rallied every day at the hospital, manipulating the family into forgiving her killer. CORRUPT COVER UP, inhumane and disgusting" Facebook On a post by Aussie Cossack dated 27/5/23 Comment by John Lee - "In order. Sack the tart. Bury the lovely lady with a state funeral. Jail the officer for murder!" 6.6 Comment by Jimmy Dee on SMH post dated 20/5/23-"How was this even allowed! The grossest overreaction I can remember. This poor lady, who was no doubt petrified and confused was neither comforted nor calmed and reassured but was instead tasered! Normally that would be the last resort before being gunned down in a hail of bullets!!" Facebook - 6.7 Comment by Jan Toohey on SMH post dated 19/5/23-"Utterly sickening abuse of a frail 95 year old woman suffering dementia ... this is an absolute disgrace! The officer who tasered her should be ashamed of himself, and face severe criminal charges" Facebook - 6.8 Comment by Craig Stevens on SMH post dated 19/5/23 - "What a joke the Police should be [disgusted] with themselves. And the [gung] ho cop should be sacked/jailed with no pension. A senior cop should no better. Not like she is some 140kg cow cockie out of control." (and other comments) Facebook - 6.9 Comment by Brad Pullin on SMH post dated 19/5/23 - "so the lowest IQ crayon eating clown you went to school who is now the bottom feeder of society in a NSW Police Force uniform taser a 95 year old ... what an embarrassment the parasites with badges are" (and other comments) Facebook - Comment by David Fitzgerald on 9NEWS post dated 29/11/23- "let's hope the corrupt 6.10 dodgy judicial system Facebook - give him a jail sentence & he gets a "Welcome to jail" ceremony" Comment on Daily Mail post dated 19/5/23 by uncle Louis the Labrador- "tapered 6.11 [tasered] twice not once TikTok Video had 38.1k views and the cop was under investigation before this happened" 6.12 Comment on Daily Mail post dated 19/5/23 by Dave Fisher79 - "That's got to be murder…." TikTok Video had 38.1k views 6.13 Comment on Daily Mail post dated 19/5/23 by John Breer - "If that poor woman dies it's considered murder!!!!" TikTok Video had 38.1k views 6.14 Comment on Daily Mail post dated 19/5/23 by Vanessa Holmes - "So let's hope they go down for murder" Comment by Martin.Rush - "THAT'S MURDER YES !!!" TikTok Video had 38.1k views 6.15 Comment on Daily Mail post dated 19/5/23 by Bushy Beach Tim - "These police need to be charged with murder" TikTok Video had 38.1k views Comment by billward46 - "cop should be charged with attempted murder/murder" 6.16 Comment on Daily Mail post dated 19/5/23 by Percy Ferry - "the coward who did this (twice) needs to never work as an officer again. He also needs to be charged with assault occasioning actual harm" TikTok Video had 38.1k views 6.17 Comment on Daily Mail post dated 19/5/23 by Fishing - "Cop should be arrested and charged with murder" TikTok Video had 38.1k views 6.18 Comment on Daily Mail post dated 19/5/23 by Jack - "there is no excuses to taser 'TWICE' a fragile 96 y. Old lady who weighs 43 kgs and was in a walking frame at the time! Sue big time!" TikTok Video had 38.1k views 6.19 Comment on Daily Mail post dated 19/5/23 by Pete - "Jail the cops for murder. They knew what it would do. And bankrupt the home for not providing a safe environment" TikTok Video had 38.1k views Comment on Daily Mail post dated 19/5/23 by 27lochie-"Makes me wanna be a cop killer frrr" 6.20 Comment from Vaughn TikTok Video had 38.1k views -"well hope the cop is up for murder if she dies" 6.21 Comment on Daily Mail post dated 22/5/23 by Dylan - "That's murder" TikTok Video had 82.9k views 6.22 Comment on Daily Mail post dated 22/5/23 its_me_scott- "attempted murder by police" TikTok Video had 82.9k views Comment by Ponie-"how many more incidents has that police officer been in over those 12 years that hasn't been made public" Comment on Daily Mail post dated 22/5/23 by butternutpumpkin - " ... 6.23 the senior constable TikTok Video had 82.9k views needs to be charged with murder" 6.24 Comment on Daily Mail post dated 22/5/23 by trespassing_minds - "if TikTok Video had 82.9k views a member of the public did this to a 95yr they would be charged with murder. Should be no different for these.police involved" 6.25 Comment on Daily Mail post dated 22/5/23 by tz09- "tasered twice, once in the back, can u believe this .. nsw have decided to not order anymore tasered with cameras in them, corrupt cunts" TikTok Video had 82.9k views 6.26 Comment on Daily Mail post dated 8/6/23 by GEEMAN - "He should be charged with murder, if it was anyone else they would be jailed" TikTok Video had 39k views Comment on Daily Mail post dated 8/6/23 by 69Trickstar- "Murderer who will claim stress 6.27 compensation" Comment by TikTok Video had 39k views Schmofield-"Should be in a woodchipper, feet first" 6.28 Comment on Daily Mail post dated 23/5/23 by Right2chase - "BOOM! There it is. Knew he had a history of questionable decision making #typical" TikTok Video had 28.2k views 6.29 Comment on Daily Mail post dated 23/5/23 by David Moorby - "He needs to be charged with murder" TikTok Video had 28.2k views 6.30 Comment on Daily mail post dated 23/5/23 by TIKTOK_STOP _BANDING ME- "this is a joke lock him up for murder don't want my tax money paying this scum" TikTok Video had 28.2k views 6.31 Comment on Daily Mail post dated 23/5/23 by John Pugh - "I have a feeling officer White is going to get more than his legs broken, for his coward actions on this wonderful old lady" Comment by Serenityph_au - "Well we finally have a name. He's got a knife record of his own and a history of being violent against civilians" TikTok Video had 28.2k views 6.32 Comment on Daily Mail post dated 23/5/23 by Fishing - "He should be arrested for murder" TikTok Video had 28.2k views Comment by Gypsy - "he needs to be charged for murder" 6.33 Comment on Daily Mail post dated 23/5/23 by Smudges - "He needs to be arrested for murder" TikTok Video had 28.2k views Part 7: Comments from Website "Reddit" 7.1 Comment - 'This is just an idiot the government gave a gun and taser to.' Reddit - 7.2 Comment - 'Lowlife scumbag pig' Reddit - 7.3 Comment by stocks-mostly-lower - 'Oh I'm so sorry that that murdering bully is very distressed.' Reddit - 7.4 Comment - 'he deserves a lifetime ban from any form of law enforcement.' Reddit - Comment - "She was coming at me with her walker. 7.5 Everyone else: ? Reddit - This was a senseless act of aggression and an even more senseless death" 7.6 Comment by Kailaylia - "The story has been sanitized. The original reports show she was tasered TWICE" Reddit - Comment by fastnfurious76 - "Someone should hook up a car battery to his nutsack" 7.7 Comment by commando_cookie0 - "Placed on suspension with full pay… are you fucking kidding me. Why are people surprised when we're terrified of cops who can murder and get PTO for it. Cops are thugs and paid killers, where does the confusion lie?" Reddit - 7.8 Comment by werd516 - "Murder cop kills elderly dementia patient with taser. That's the real title" Reddit - 7.9 Comment by patholysis - "Should be a murder charge against that piece of shit" Reddit - 7.10 Comment by tkp14 - "I bet this prick can't wait to have this behind him so he can strut and gloat about murdering an old lady" Reddit - Comment by shootslikeaninja - "That guy needs to be locked up and tazered in the cock on the daily"

1. The Crown relies upon the affidavit of Tessa Lumsden sworn on 11 October 2024. Ms Lumsden deposes that it can be seen from the material contained in Annexure A to Ms Fitzpatrick's affidavit, that most of the publications occurred around two key dates close in time to the incident, namely on 17 May 2023 and on 24 May 2023. Some of the material is still available online. Ms Lumsden also deposes that on 27 May 2023 a protest took place, criticising the conduct of police in the incident. Enquiries reveal that "at its peak there was 15 protesters in total". The protest march was reported in the mainstream media on 27 and 29 May 2023.

Applicant's Submissions

1. The applicant submitted that the pre-trial publicity is such that at least some of the jury in waiting are likely to have had relatively recent exposure to prejudicial material adverse to the accused's interests in the trial. This includes prejudicial material about previous conduct of the accused, as well as journalistic and social media commentary that portrays him as a murderer and concludes that his conduct was otherwise unnecessary and criminal in nature. The pre-trial publicity is said to be extreme and widespread, and still publicly available.
2. Although much of the publicity relied upon dates back to May 2023, the applicant submitted that the published material is vitriolic and assumes the guilt of the applicant, calling for retribution against him. The applicant submitted judicial direction could not cure the asserted prejudice.
3. The applicant also relies on the asserted complexity of the issues in the trial in support of the contention that it is in the interests of justice that the trial proceed as a Judge alone trial. The applicant submitted that I ought to be guarded about simply accepting the Crown's submission that the issues in the trial require the application of community standards, particularly having regard to the complex issues that will have to be determined.
4. The two bases of liability for involuntary manslaughter (criminal negligence and in the alternative, unlawful and dangerous act), introduce a level of complexity that is said to be compounded by the various legislative provisions that are relied on in order to prove each element of the offence. The legislative provisions include s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and ss 20, 21 and 81 of the Mental Health Act 2007 (NSW).
5. A further complicating factor is that in determining whether the act of the accused was unlawful, a consideration of Police Standard Operating Procedures will be required. The applicant submitted that there are layers of complexity that are not limited to statutory considerations but extend also to a comparison between a breach of duty to a civil standard and a breach of duty that merits criminal punishment.

Crown Submissions

1. The Crown points to the evidence of pre-trial publicity to make the point that the publicity relates to articles or social media posts that date back to May 2023. Although some (or all) of this material, may still be available online, there is no evidence that any of the articles or social media posts have been viewed recently.
2. Secondly, the Crown submitted that to the extent that opprobrium or vilification is attendant in the comments and social media posts identified by the applicant, that material plainly represents either comments by those with clear bias against police or is deliberately provocative and lacking in credibility.
3. Thirdly, the Crown submitted that the evidence does not demonstrate that the pre-trial publicity is extreme, widespread or "extraordinary".
4. Fourthly, the Crown submitted that the law assumes that jurors will follow the directions of law given to them. To the extent that individuals in the jury panel have been exposed to pre-trial publicity, they will have an opportunity to make an application to be excused if they cannot bring an impartial mind to the issues at trial. Furthermore, the jury, once selected, will be directed in the usual way not to access the internet in relation to this incident and to otherwise put out of their minds any publicity they may have been exposed to in connection with the trial.
5. The Crown further submitted that the issues in the trial are not inherently complex issues and are of a kind which are routinely given in jury trials. The Crown submitted that the main issues in the trial are of a kind which involve the application of community standards in relation to reasonableness, negligence and dangerousness and it is therefore preferable for those issues to be determined by a jury.

Determination

1. Although I will deal with each ground separately, I have had regard to the combined force of the grounds relied upon by the applicant, in determining the application.

Pre-Trial Publicity

1. Proceedings such as these will invariably attract some publicity in mainstream media forums as well as commentary in the online world. The nature and extent of that will vary from case to case. The potential impact, upon a criminal trial, of articles and posts published on the internet has been the subject of judicial observation. In R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 Wood CJ at CL observed at [80]-[82]: "[80] The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology. [81] It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve. [82] It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the Courts to place effective restrictions on the publication of their own proceedings is severely limited, save in relation to a narrow category of cases, such as those involving minors, sexual assault proceedings, or offences which threaten the safety of the country: see John Fairfax and Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 and Attorney General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342."
2. Some practices have been adopted by the courts to meet the changing circumstances brought about by technological advancement in an effort to protect the right to a fair trial. These practices include model judicial instructions and warnings to jurors.
3. In Simmons (No 4) at [83]-[88], Hamill J noted that there are a number of cases in New South Wales where applications for trial by Judge alone have been based on prejudice arising from pre-trial publicity. His Honour noted that, overwhelmingly, it has been held that the prejudice identified is capable of being overcome by direction to the jury. In spite of the persuasiveness of some academic writings questioning the effectiveness of judicial direction in this regard, there is a long line of authority that jurors are capable of, and do, follow directions, including directions requiring them to disregard prejudicial publicity. It should be assumed that jurors will undertake their duties in a fair and balanced way, informed only by the evidence adduced at trial: Obeid at [67]-[68]; R v Yuill (1993) 69 A Crim R 450 at 453-454.
4. The question involves a consideration of the nature and extent of the prejudicial material. It is a question of degree: Simmons (No 4) at [88]. There have been cases where the prejudicial effect of such material was so great that an order for a Judge alone trial was made: Arthurs; R v GSR (No 3) [2011] NSWDC 17; R v Spiteri-Ahern; R v Barber; R v Zraika [2017] NSWSC 1275.
5. In R v Sione; R v Dawson [2023] NSWSC 1594 a Judge alone trial was ordered owing to a combination of prejudicial (and inadmissible) material; graphic material; and the complexity of the trial. In that instance, the combination of factors (not only prejudicial material) militated in favour of a decision to order a Judge alone trial.
6. As indicated above, the media articles and social media posts relied upon in this case, can be loosely separated into three categories. Each category, however, relates to articles and/or posts published in 2023 and overwhelmingly around two key dates close in time to the incident, being 17 May 2023 and 24 May 2023. Annexure A to Ms Fitzpatrick's affidavit reveals that with respect to the social media posts, the number of "views" or "likes" ranged between 48 and 126,200. Although some of the material is still accessible online, there is no evidence that the posts have been viewed recently.
7. I do not intend to specifically refer to each item referenced in Annexure A to Ms Fitzpatrick's affidavit although I will address the contents of some of those articles or posts, in determining the issue of whether the interests of justice favour trying the applicant by way of a judge sitting alone.
8. The first category of pre-trial publicity relates to articles in the mainstream commercial media. Exhibit 3 is an article claiming that the Daily Mail had an audience of 10.64 million as of May 2020. The content of that article is relied upon by the applicant as evidence of the reach of the Daily Mail. This evidence has limited weight in that it says nothing about the audience of the Daily Mail in May 2023 and, more importantly, says little about the number of people who may have read the article as relevant to this application.
9. The applicant relies upon two articles published by the Daily Mail, dated 23 May 2023. In addition to referring to the incident that gives rise to the charge against the applicant, the articles also refer to a previous incident involving the applicant. That previous incident relates to the arrest of a man in the Australian Capital Territory for driving related offences ("the ACT incident"). The applicant and his colleague stopped and detained the man until Australian Federal Police officers arrived at the scene. In doing so, the applicant and his colleague were acting outside of their jurisdiction. The article also refers to a threat made by the applicant's colleague and comments made by the ACT Magistrate, dealing with the driving offences, that describe the conduct of the officers as "outrageous" and "horrifying".
10. The applicant also relies upon Sydney Morning Herald articles, dated 18 May 2023 and 22 May 2023. One of the articles refers to the ACT incident involving the applicant. The other erroneously refers to Mrs Nowland having been tasered "twice". Exhibit 4 is an article dated 19 August 2024, reporting that the Sydney Morning Herald has a "cross-platform readership" of 7.2 million. The applicant relies upon that exhibit as evidence of the reach of the Sydney Morning Herald. Although I accept that the Sydney Morning Herald has a wide reach, the articles relied upon do not contain material that is so prejudicial that it warrants a trial by Judge alone, even when taken together with all of the other media articles and social media posts.
11. To the extent that any of the reporting included information inconsistent with the Crown evidence, it is highly unlikely that such misreporting will have a prejudicial effect in this case given that the entire incident was captured on BWV footage.
12. In addition to the Daily Mail articles, some of the social media posts refer to previous "misconduct" perpetrated by the applicant, referring to him as a "rogue cop". They also express opinions about the applicant being guilty of murder and a systemic cover up by the police, implying a system of police condoning murder. Some of the social media posts assume the guilt of the applicant for the offence of murder.
13. However, these social media posts, in the main, relate to obscure websites or groups and social media which can fairly be said to have very limited importance or reach amongst the general community. By way of example, Russell Manser was convicted of several bank robberies in the 1980s and 1990s and spent 23 years in various prisons in New South Wales, Queensland and the Northern Territory.
14. The "Aussie Cossack" claims to have gone to school with the applicant where he claims he was responsible for bullying the applicant. He also refers to the applicant as a "rogue cop". However, the tone and generalised conspiratorial narrative of the material, while vitriolic, is lacking in credibility and in my view is highly unlikely to influence fair-minded members of the community.
15. Each of the articles and media posts referring to this prior incident date back to 2023. Although the "fade factor" between the media scrutiny and the trial is not a decisive consideration, there is simply no evidence that these articles and media posts have been viewed recently. In addition, even if it can be inferred that some of the potential jurors may have viewed this material, because some of it is still online, the previous "misconduct" on the part of this applicant is limited to acting outside of his jurisdiction. The applicant was not the person who proffered the threat.
16. The ACT incident involving the applicant will not be the subject of evidence at the trial. Although the Magistrate described the conduct of the officers as "outrageous" and "horrifying", the applicant was not charged with misconduct. To the extent that the articles and social media posts referring to this previous incident gives rise to a risk of prejudice to the applicant, that risk, in my view, can comfortably be dealt with by way of judicial direction.
17. A sub-category of the articles and media posts relied upon, involve opinions expressed in the media by criminal lawyers. There are five such items. With respect to Item 3.5 (in Annexure A to this judgment), the TikTok post is dated 19 May 2023 and had 22,800 views. I have no information as to when the post was viewed and whether it has been viewed recently. Each of these items include opinions by lawyers suggesting that the appropriate charge upon which to proceed against the applicant is murder. One of the items, appearing on a law firm's website, erroneously refers to the deceased having been tasered twice. The material is limited in volume and involves expressions of opinion by a handful of individuals, albeit lawyers, about what the appropriate charge should be.
18. The opinions of these individuals have limited capacity to engender prejudice in potential jurors. Other than Item 3.5, there is no evidence as to whether and on how many occasions the other posts were viewed. Some of the media posts appear on the websites of the individual law firm, as opposed to websites more generally available or accessed by the public. Furthermore, an indictment containing one count of manslaughter will be presented against the applicant. The jury will be instructed that they must return a verdict based solely on the evidence in the trial and applying the directions of law that will be provided to them.
19. It is highly unlikely, in those circumstances, that a jury of fair-minded individuals, will be influenced by the opinions of a handful of lawyers, assuming they have recently accessed the social media posts.
20. Having considered all of the articles and social media posts relied upon in support of the application, I am not of the view that it is in the interests of justice to make an order for a Judge alone trial. However, the applicant does not rely on this basis alone. The applicant also relies upon the asserted complexity of the issues in the trial. I will now deal with the second basis upon which the application is made.

Complexity of the Issues

1. In Farrugia Basten JA (Button J agreeing, Hamill J giving separate reasons) observed at [11]: "Without seeking to be restrictive of the circumstances in which such orders are appropriate, it is helpful to note that the decided cases reveal [J]udge alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the judge is not satisfied that a fair trial can be achieved with a jury, perhaps because a particularly horrendous crime has inflamed public sentiment in a small community. On the other hand, it is clear that an order is not to be made because the judge has a preference for trials without a jury because, for example, a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run, or a "correct" result is more likely." See also R v AN; R v LM [2021] NSWSC 1657 at [80].
2. This trial is not a lengthy trial. Although the expert evidence is relied upon by both parties, this trial does not involve a "battle of the experts". The act of the applicant causative of the death of Mrs Nowland is captured on BWV footage. Neither party will adduce evidence from their expert by way of a conclusion as to the issue of "exceptional circumstances". To the extent that expert evidence will be adduced in the trial, it is not evidence of a complex technical or scientific nature.
3. In relation to the law, the jury will be assisted by way of directions, more likely than not, in writing, about the elements of the offence and directions in relation to the two bases of liability relied upon by the Crown. I am not of the view that the issues in the trial involve a level of complexity militating in favour of a Judge alone trial.
4. Concepts such as "reasonableness", "negligence" and "dangerousness", are specifically listed in s 132(5) of the CPA as issues requiring the application of objective community standards. The analysis contained at Annexure A to the Crown's written submissions (reproduced as Annexure A to this judgment), discloses that reasonableness is re-emphasised throughout the directions. By way of example, with respect to manslaughter by criminal negligence, the Crown must prove beyond reasonable doubt that the applicant breached the duty of care owed by him to the deceased. The issue to be determined is the standard of care required to be exercised by a reasonable person, that is, an ordinary member of the community, in the situation in which the applicant was placed. The issue of reasonableness in that context is a matter that a jury is best placed to decide.
5. In determining this application, I have been particularly mindful of the fact that the applicant has expressed, by way of his election, a real apprehension that he would not be able to receive a fair trial before a jury. However, having considered the evidence relied upon by the applicant and the respective submissions, I am not of the view that it is in the interests of justice that the Court make a trial by Judge alone order.

Orders

1. For the foregoing reasons I make the following orders: 1. I refuse the application for a Judge alone trial and dismiss the Notice of Motion filed by the applicant on 10 October 2024.

ANNEXURE A Analysis of Elements of Involuntary Manslaughter (drawn substantially from the Bench Book at [5-6230]-[5-6260]). Manslaughter by criminal negligence The Crown must prove each of the following beyond reasonable doubt: 1 the death of the deceased; and 2 the accused owed a legal duty of care to the deceased; and 3 the accused [committed an act/omitted to do an act]; and 4 the [act/omission] caused (that is, was a substantial cause of) or accelerated, 5 the death of the deceased; and 6 the accused's [act/omission] was negligent in that the accused breached the duty of care which the accused owed to the deceased; and 7 the accused's [act/omission] amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because: (a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (b) involved such a high risk that death or really serious bodily harm would follow as a result of the [act/omission]. In relation to element 5, the standard directions include the following [emphasis added]: The Crown must prove beyond reasonable doubt that the accused breached the duty of care owed by the accused to the deceased. The Crown alleges that the accused [state Crown allegation that the accused acted or omitted to act in such a way as to constitute a breach of that duty of care]. It is for you, as the jury, to determine the standard of care required to be exercised by a reasonable person, that is an ordinary member of the community, in the situation in which the accused was placed. If the accused failed to do what a reasonable person would have done [or did what a reasonable person would not have done] in the situation in which the accused found themself then you would find that the accused breached the duty of care owed to the deceased. Unless you are satisfied beyond reasonable doubt that there was a breach of duty of care, then the accused cannot be guilty of manslaughter. In deciding whether there was a breach of duty of care, you have to consider what a reasonable person would have done in the situation in which the accused was placed. A reasonable person is one who has some, but not all of the personal attributes of the accused. A reasonable person is a person of generally the same age as the accused; with their experience and [training] and with their knowledge of the facts. The reasonable person is a person of normal courage and resolve. So you have to put this reasonable person into the accused's shoes at the time of the incident and attribute to that person the accused's knowledge of the circumstances at the time the accused committed the act or acts, or failed to take a relevant course of action. If the accused failed to act as a reasonable person would have done in that situation, then the accused has breached the duty of care that they owed the deceased. It does not matter whether the accused knew that they were breaching their duty of care, or whether the accused believed that they were acting in an appropriate way in the circumstances which they faced. You are not concerned with the accused's personal beliefs about the correctness or appropriateness of their conduct. You are concerned with what a reasonable person in the accused's position would have thought was appropriate and necessary. [If applicable: In deciding that issue the accused has invited you to take account of ... [insert particular fact or circumstance which the accused knew, or thought they knew which contributed to their opinion that they were acting in an appropriate way (see The Queen v Lavender (2005) 222 CLR 67 at [59]-[60]).] In relation to element 6 the standard directions include [emphasis added]: A mere breach of duty is not enough to amount to the offence of manslaughter. A breach of duty is often called carelessness or negligence. A breach of the duty of care may make a person liable to pay compensation to another person for damages in a civil action. However, that liability is not sufficient for the offence of manslaughter. The accused's conduct must be so gravely in error and carry with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence. The breach of duty must have a certain quality before the accused can be guilty of this offence. The accused's conduct must, first, fall so short of what was required and, secondly, must give rise to such a high risk of serious injury or death, that the conduct deserves criminal punishment. Often negligence giving rise to manslaughter is described as gross or even wicked. It is negligence of such a serious kind that it far exceeds simple carelessness or negligence that occurs frequently in our society. If the accused's breach of duty meets this level of seriousness and carries with it a high risk of serious injury or death, it does not matter that the accused never intended, or appreciated that their actions might harm the deceased. Accordingly, element 5 involves consideration of the breach of duty in terms of reasonableness and element 6 requires an evaluation of that breach against the standard identified. The reasonableness of the accused conduct is therefore central to both elements of the offence which are anticipated to be in dispute. Elements 5 also requires assessment of negligence and Elements 5 and 6 require assessment of an negligence in terms of dangerousness. Manslaughter by unlawful and dangerous act The elements of the offence are that: 1 the death of the deceased was caused by an act of the accused 2 the accused intended to commit the act that caused death 3 the act of the accused was unlawful, and 4 the act of the accused was dangerous. In relation to the element 3, the standard directions include that: The Crown must prove beyond reasonable doubt that the accused's act was unlawful. The Crown asserts that the act was unlawful because ... [set out the Crown's allegation]. Here, the allegation is that the act of tasering the deceased constituted an assault and/or battery that was unlawful because it was not justified by law. In relation to whether the accused could be justified by any law it is anticipated that the following provisions could be relevant. Section 230 of the Law Enforcement Powers and Responsibility Act (LEPRA) provides as follows: Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. Section 20 of the Mental Health Act 2007 empowers paramedics to take a mentally ill or disturbed person to a declared mental health facility if it is in the person's welfare. Police assistance to do so can be requested if there are serious concerns for safety. Section 21 allows police who have been asked by paramedics for assistance to apprehend and take a person to a mental health facility. Section 81 gives paramedics and police the power to use reasonable force to take a person to or from a mental health facility or other health facility. A person can also be sedated by authorised persons for the purpose of being taken to or from a mental health facility, if necessary, under that section. In relation to element 4, the standard directions include [emphasis added]: Finally, the Crown must prove beyond reasonable doubt that the act of the accused was not only unlawful but also dangerous. An act is dangerous if a reasonable person, in the position of the accused at the time the act was committed, would have realised that the act exposed another person, whether it be the deceased or not, to a risk of serious injury. It does not matter whether the accused believed that their act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised or appreciated that the act was dangerous. In deciding whether the reasonable person in the position of the accused would have realised that the act was dangerous you can take into account any evidence of the accused's awareness and knowledge of the circumstances surrounding the alleged act. [The following further directions in relation to the reasonable person need not necessarily be given and should be adapted to the circumstances of the case: A reasonable person in the position of the accused is one who is not subject to the peculiar eccentricities of the accused or any temporary or fleeting emotional or mental state to which the accused might have had at the time. The reasonable person is not affected by alcohol or drugs. [Where appropriate: the reasonable person is to be taken as being of the age and maturity of the accused at the time of the alleged act.] [Where appropriate: the reasonable person is taken to be a person with the accused's intellectual disability.] Therefore, the reasonable person in this case is to be taken as ... [Where appropriate: set out the relevant evidence of the accused's age and maturity/intellectual disability at the time of the act alleged. In relation to the attributes of the intellectual disability, explain any expert opinion admitted in the proceedings (see earlier discussion at [5-623U]). For example, in R v Thomas [2015] NSWSC 537, the accused had an impaired ability with the processing of information and conceptual reasoning.] The question is whether the Crown has proved beyond reasonable doubt that a reasonable person in the position of the accused, would have realised that the act allegedly committed by the accused exposed another person to a risk of serious harm. Accordingly, the reasonableness of the accused's conduct is relevant to both elements 3 and 4. While dangerousness is central to element 4. 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: 29 November 2024