R v XY [2024] NSWSC 1472 | Case summary

Supreme Court of NSW|2024-11-22|Before: Davies J, Yehia J

The application under s 132A

The Crown does not oppose leave being granted. Nevertheless, it is for the Court to determine if leave should be given.
In Alameddine v R [2022] NSWCCA 219, the Court of Criminal Appeal (Beech-Jones CJ at CL, Hamill and N Adams JJ) said this in relation to the time for an application under s 132 and the concept of judge shopping: [17] The first matter concerns the significance of an explanation for a late application under s 132A to dispelling the appearance of judge shopping. As noted by Hamill J in Simmons (No 4) at [21], in the second reading speech for the Bill introducing s 132A the Attorney General stated: "The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge." (emphasis added) [18] This statement reflects the observation by Gleeson CJ in R v Perry (1993) 29 NSWLR 589 at 594 about the rationale for the predecessor to s 132A: "One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes some way towards eliminating such appearances if elections have to be made before the trial date." (emphasis added) [19] In Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Basten JA cited this passage (at [12]). His Honour added (at [13]) that: "Modern case management procedures will often mean, as Hamill J noted [in Simmons (No 4) at [19]-[22]] that the identity of the trial judge will be known well before the commencement of the 28 day period. Nevertheless, where the matter is left to the last moment, it may be inappropriate for the prosecutor simply to consent to a grant of leave in circumstances where, as in the present case, no explanation was proffered as to why the matter could not have been raised earlier." (emphasis added) [20] The form of explanation to which Basten JA was referring is an explanation that, at the very least, addresses the "appearance" of judge shopping. Implicit in both of the above passages is that such an appearance can be dispelled by the provision (and acceptance) of an explanation for the delay being an explanation that discloses some reason(s) for making the application, other than "knowing the identity of the trial judge"; i.e., the appearance of judge shopping does not survive the acceptance of the explanation. Hence, in R v Dawson [2022] NSWSC 552 leave was granted to an accused under s 132A to apply for a judge alone trial within 28 days of the trial date. The identity of the trial judge had been known to both the Crown and the accused for a substantial period of time, however it was clear that the fact and timing of the application was dictated by the outcome of an application for a permanent stay (at [8]). The explanation that was given and accepted dispelled the suggestion of judge shopping (see also R v Quami & Ors (No 14) [2016] NSWSC 274 at [8] to [18]). [21] In Simmons (No 4) Hamill J heard and granted an application for a judge alone trial after his Honour commenced hearing and deciding pre-trial issues. His Honour noted that the fact that he was the trial judge had been known to the parties for months so there was no suggestion that the parties made the application as a result of discovering the identity of the trial judge (at [22]). Further, his Honour considered but rejected the possibility that the parties had nevertheless based their decision to seek a judge alone trial because of decisions that he had already made, which, if it had been, would be tantamount to judge shopping (at [23] to [31]). Again, implicit in his Honour's approach is that an acceptance of an explanation for the fact and timing of the application which does not involve any form of judge shopping was sufficient to dispel the "appearance" of judge shopping.

Should a judge alone trial be ordered?

Since the accused stood trial on 30 September 2024 only two things have changed. The first is that the jury in the first trial was hung. The second is that the report of Dr McSwiggan has been served. Apart from the accused's submission that a judge alone trial would bring about finality, whereas a further jury trial might also result in a hung jury, the accused's submissions derived from the service of Dr McSwiggan's report.
The submissions rely on what is said to be the complexity of the report and how that will affect the trial in a number or respects. First, it is said that the report is so complex that it would be difficult for a jury to understand it. Secondly, the complexity of the report adds to the complexity of the directions the trial judge would need to give to the jury. Thirdly, the public would have confidence that all relevant material in the report is taken into account by a reasoned decision of a judge, rather than a verdict only from a jury.
I do not agree that what is contained in the report is of any particular complexity in the assessment being made, in the report of the tests administered, in the diagnosis of the psychologist, and in the psychologist's explanation of memory. The report does not significantly differ from reports prepared by psychiatrists and psychologists that result in those persons giving evidence before a jury in criminal cases, particularly, for example, where some form of mental impairment is relied on as a defence: for recent examples see R v White [2022] NSWSC 1060; R v Mapp [2024] NSWSC 1267.
Further, pathologists frequently give evidence in murder and manslaughter cases where it is necessary to explain to a jury the anatomical cause of death. Evidence in all of these types of cases is given in a way that avoids jargon or technical terms that would not be readily understandable to a jury. There is no reason to think that the position the present case would not be the same. In any event, the Crown has indicated that not all of the report is to be relied upon, but that limited oral evidence or agreed facts would be put before the jury.
It is difficult to see how reliance on evidence from Dr McSwiggan would result in additional complex directions to the jury. In the ordinary course, the trial judge would simply summarise Dr McSwiggan's evidence, if that was thought appropriate, and any submissions made by the parties in reliance upon it. Some of the accused's submissions seemed to be made on the assumption that the trial judge would need to explain to the jury how they should apply the learning in the report to the evidence the complainant gave. That is not the role of the judge. It is for the parties to address the jury on how it should use the evidence of Dr McSwiggan.
In the same way, it is difficult to see how any issue of public confidence arises as a result of any evidence that Dr McSwiggan would give. The submission seems to be dependent on a finding that the medical evidence is complex and would need to be dealt with in detail by any judge conducting a judge alone trial. As I have indicated, I do not consider that the evidence is unduly complex.
The fact that a judge alone trial would bring finality where an earlier trial resulted in a hung jury is not a sufficient reason for finding that a judge alone trial is in the interests of justice. It would mean that in every case where there is a hung jury, there would be a justification for a judge alone trial the second time around.
The fact that the credibility of witnesses is a central issue in the trial may operate in favour of a jury trial. In R v McNeil [2015] NSWSC 357; (2015) A Crim R 12, Johnson J said: [102] Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence. [103] Like Latham J in R v Dean at [59], I would call in aid the statement of Lord Devlin in Trial by Jury (1966), page 140, cited by Heydon J in AK v Western Australia at 472 [94]: "Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility [78]: '[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers'." [104] Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant's trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury.
A similar point was made by Lonergan J in R v Mackie (No 2) [2018] NSWSC 1654 at [25].
The Crown accepts that the issues in the trial do not require the application of community standards and that there is no presumption that the trial should proceed by jury. Nevertheless, it is significant that the first trial was conducted before a jury as efficiently as the complainant's condition would allow. The only additional evidence would appear to be that of Dr McSwiggan, and I have considered her evidence earlier on the assumption, perhaps not justified in the light of what the Crown has said, that everything in her report would be given in evidence.
It would have been of assistance to the Court and, no doubt, to the accused if the Crown had been in a position at the hearing of this application to indicate which portions of the report were to be led in evidence at the trial. However, in the absence of the Crown's final position being known, I have determined this application on the basis that the whole of Dr McSwiggan's evidence will be led.
In my opinion, there is nothing to suggest that it is in the interests of justice to order a judge alone trial.

Conclusion

Accordingly, the orders I make are these: 1. Grant leave pursuant to s 132A Criminal Procedure Act 1986 (NSW) to make the application within 28 days of the date fixed for trial. 2. Application for trial by judge alone refused.

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Crimes Act 1900(NSW)s 66DB

Evidence Act 1995(NSW)ss 135, 165A

Legal principles

Section 132 of the Criminal Procedure Act relevantly provides: … (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. …
Section 132A relevantly provides: 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.
In R v Dawson [2022] NSWSC 552, Beech-Jones CJ at CL said: [10] Generally, the phrase "interests of justice" envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also "interests wider than those of either party" (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 ("Belghar"), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict. [11] In Simmons (No 4), Hamill J identified several considerations which may inform the assessment of whether the interests of justice warrant the making of an order for trial by judge alone. These include the potential to save court time and expense from having a matter proceed without a jury although the weight to be attached to this factor will vary from case to case. One advantage of a trial by a judge alone is the enhanced community confidence in the verdict that may be derived from the provision of reasons by a judge especially if it concerns complex engineering, scientific or medical issues. On the other hand, there is a "public interest in the administration of justice [being] carried out in public and in serious cases by the representatives of the public sitting as jurors". Many authorities point to juries as the preferred body to make assessments of the credibility of witnesses. However, in Simmons (No 4) Hamill J regarded this factor as neutral given that judges have the "training and experience of making difficult decisions on credibility, putting aside matters of emotion, on an almost daily basis".
In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1, McClellan CJ at CL said at [112]: As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.
In R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120, Hamill J said: [71] Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]. In Kingswell v R [1985] HCA 72; 159 CLR 264 Deane J said at 302-303: "There is, for example, obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial or upon the detailed technical questions which may be involved in the trial of white collar and computer crime." [72] Further, it may often be in the interests of justice for the reasoning process of the tribunal of fact to be exposed in cases involving an assessment of competing and complicated expert evidence: Arthurs v Western Australia at [90].
In R v Niguidula [2023] NSWSC 290, Wilson J said: [23] Much has been written in the jurisprudence, including in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, and in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [23] - [38] about the historical background to the default position that criminal proceedings should be tried by jury. Although it is not necessary to add to the jurisprudence here, it is important to note that a jury trial is ordinarily seen as one that provides a greater likelihood of an accused securing an acquittal than is the case for a trial by judge alone, whilst involving the community in criminal proceedings. [24] Jury trials bring that great advantage to the administration of the criminal justice system, involving the community through its members bearing responsibility for the most significant decisions required to be made, in determining questions of guilt. To reserve decisions concerning guilt to a judge sitting alone heightens the likelihood of the community coming to regard the criminal justice system as the preserve of an unrepresentative minority, and thus outside the community's scrutiny or input. The ultimate risk in that scenario is that the administration of the criminal justice system will lose the support of the community.

R v XY

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