RKF v R

Judgment

1. BATHURST CJ: The applicant, RKF (the applicant), was indicted on two charges of aggravated indecent assault on SF in contravention of s 61M(2) of the Crimes Act 1900 (NSW) (Crimes Act) and one count of intimidating SF with the intention of causing her to fear physical harm in contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
2. On 15 May 2015, the applicant filed an election for a judge alone trial. This was opposed by the Crown and on 9 November 2015, her Honour Judge Traill refused the application.
3. The applicant has sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against this refusal.

Background

1. SF was born in Thailand. She was a child of the applicant and a Thai woman. Shortly after her birth, the applicant was charged with drug offences in Thailand. He was remanded in custody and remained in custody in Thailand until 2006 when he was acquitted of the charges. Thereafter he was extradited to Italy on other drug charges and remained in prison in Italy until 2009 when he was acquitted of those charges. There is evidence that whilst he was in prison in Thailand the applicant saw his family on a regular basis.
2. In 2007, SF and her brother moved to Australia. SF lived with the applicant's mother in Brisbane whilst her brother lived with the applicant's sister in Bundaberg.
3. After his release from prison in 2009, the applicant returned to Australia. He attempted to have a relationship with his daughter but she did not want to have anything to do with him. The applicant then moved to Sydney where he supervised a block of apartments in Darlinghurst.
4. In February 2011, SF's brother, who was a year older than SF, moved to Sydney to live with his father. The evidence suggests that SF had relationship difficulties with her grandmother and behavioural problems such as self-harm and truancy. Consequently, in April 2012, SF came to Sydney to live with her father and brother.
5. On 16 June 2013, the applicant went to Kuala Lumpur. The following day, SF attended Randwick Hospital for liver tests. On 20 June 2013, the applicant returned to Australia. On 24 June 2013, SF underwent a liver transplant operation at Westmead Childrens Hospital. She underwent further surgery on 27 June 2013. On 18 July 2013, the wound had to be re-opened due to liver rejection, requiring further surgery.
6. At the time of SF's admission to hospital, Family and Community Services were notified. On her transfer to Westmead Hospital she met a social worker, Ms Carmody. She told Ms Carmody she did not want to see her father and did not want to know him. Ms Carmody passed this information on to the nursing staff.
7. After her operation, SF was taken to the paediatric intensive care unit. One of the nurses, Ms Chia, was informed of what SF had told Ms Carmody and described herself as hyper-vigilant in respect of any interaction between SF and her father. Ms Chia alleges that she came into the room where SF was lying unconscious and saw the applicant place his open hand on SF's breast and stroke it for a few seconds. SF was unconscious, covered by a blanket. This allegation is the basis of the first count of aggravated indecent assault.
8. SF remained seriously ill and the applicant visited her every day. Ms Carmody alleges that after the surgery of 18 July, she went into the intensive care unit where SF was lying unconscious. She alleges that the applicant was in the room and that she saw him stroke her on the head and stroke her over the hospital gown on the left breast. This is the basis of the second count of aggravated indecent assault.
9. Ms Carmody's allegation was reported to the police and the applicant was informed of it. He visited the hospital on 19 July. Another nurse, Ms Palmer, said she heard the applicant shouting and threatening SF. This is the basis of the third charge. SF stated that she had a memory of her father pointing his finger at her.
10. As I indicated, SF was unconscious at the time the incidents giving rise to the aggravated indecent assault charges occurred. However, in an electronically recorded interview she agreed with the proposition that as far as she was aware, the applicant had never touched her "in a place that he shouldn't have touched".

The relevant legislation

1. Section 132 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) makes provision for judge alone trials. It is in the following terms: "132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means."
2. Section 132A, amongst other things, places a time limit on an application for such an order. It is not in contest in the present case that the time limit was complied with.

The primary judgment

1. The trial judge stated that the primary basis for the judge alone trial was the history of the relationship between the applicant and SF, in particular, the reason why she did not want her father to come near her whilst she was in hospital. She noted that senior counsel for the applicant stated that she wished to cross-examine SF about the relationship and ask what the nurses knew or assumed about it. The trial judge stated that senior counsel for the applicant informed her that she intended to explore the mental state of the people who were dealing with SF at Westmead Hospital and the view they had formed of the applicant and submitted that one could only assume their concern was that something in the nature of inappropriate sexual conduct would occur.
2. The trial judge pointed out that there was no evidence that this was what the staff at Westmead had been told or assumed. She pointed out that all the evidence was was that SF stated she did not wish to see her father. She also referred to SF's denial that there had been any prior sexual assaults.
3. The trial judge also noted the submission that to properly present the applicant's case and cross-examine witnesses, it was necessary to reveal the accused's prior alleged criminality. She noted that it was submitted that for the applicant to properly defend himself it was necessary to raise his background in order to explain why his daughter told him she did not want to see him. She noted the submission that the disclosure of that background would prejudice the applicant in the minds of the jury.
4. The trial judge stated that it was difficult to see why the applicant would need to raise his alleged criminality as he had been acquitted of the charges and the nurses and the social worker would have had no knowledge of it. She also stated that appropriate directions could be given to the jury and that there was a large body of authority that juries were generally capable of obeying directions.
5. The trial judge also noted the submission that photographs of SF taken by the applicant shortly after the liver transplant were confronting and inflammatory. Her Honour stated that she viewed the photographs and they were of a young girl covered, lying in hospital with tubes coming out of her arms and mouth. She concluded they were confronting but not inflammatory. I viewed the photographs and agree with the trial judge's assessment.
6. Her Honour referred to the fact that one of the main issues was whether or not an indecent assault occurred and whether the alleged touching over a sheet was in fact indecent. She pointed to s 132(5) of the Criminal Procedure Act noting that the provision envisages an act of indecency as one which requires the application of objective community standards. She stated the matters raised by Count 3 (the intimidation count) also required the application of community standards.
7. Her Honour stated that there is no presumption in favour of a jury trial and no onus on the accused to establish that it is in the interests of justice for the trial to be conducted by a judge alone. She stated, however, that the case was one where the application of community standards was important. She recognised also that the election by the accused for a judge alone trial must carry some weight. However, she ultimately determined that the interests of justice did not require a judge alone trial.

The grounds of appeal

1. The grounds of appeal are as follows: 1. Her Honour erred in failing to consider that the applicant was entitled to defend himself by all forensically available means. 2. Her Honour erred by placing too much emphasis on the fact that the charges of indecent assault required an application of objective community standards. 3. Her Honour erred in determining that appropriate directions could overcome any prejudice. 4. Her Honour allowed extraneous and irrelevant matters to influence her decision to refuse the application.

The applicant

1. The applicant submitted that he was entitled to defend himself by all forensically available means and should not, without good reason, be required to make a choice between the risk that a jury will be unfairly prejudiced against him on the one hand and censoring his defence on the other. The submission is based on what was said by Adams J in Redman v R [2015] NSWCCA 110 (Redman) at [16].
2. Senior counsel for the applicant accepted that it was necessary to demonstrate error in the sense described in House v The King [1936] HCA 40; 55 CLR 499 and submitted her Honour erred in law in failing to apply Redman. She submitted that like the applicant in Redman, the applicant in the present proceedings would have to disclose his alleged criminality, in this case to demonstrate why he did not have contact with his daughter. She also said she intended to cross-examine SF about the reasons for her antipathy towards her father.
3. In relation to Ground 2, the applicant submitted that the trial judge failed to balance the fact that the question of indecency requires the application of objective community standards against the prejudice inherent in a jury trial.
4. Senior counsel for the applicant also submitted that her Honour erred in principle in that she did not have regard to the balancing requirement and the serious nature of the prejudicial material. She emphasised that the issue was not a credibility issue in terms of a complainant giving evidence, but instead, concerned challenging the perspective and interpretation of people who observed the incident. She submitted that led into the third ground of appeal, namely her Honour erred in determining that appropriate directions could address any prejudice.
5. In relation to Ground 3, the applicant submitted that where an accused person, in order to properly defend himself, needs to reveal that he has been accused of serious crimes and incarcerated for a significant period of years, the potential for prejudice is high. The applicant referred to what was said by Adams J in Redman at [16] that the law recognises there are cases where, for example, evidence must be excluded because of the potential for prejudice and submitted that in the present case, the prejudice was of such a high order that no direction could overcome it. Senior counsel for the appellant submitted it was necessary to lead evidence of the reason why the applicant came back into SF's life after a significant period to overcome any prejudice arising from inferences derived from the absence of a relationship.
6. In relation to Ground 4, the applicant submitted that in her Honour's judgment, the trial judge took into account part of the record of interview of SF which was not relied upon by either party. Senior counsel for the applicant submitted that the trial judge concluded from that evidence, set out in her reasons, that SF did not like the applicant and that it had nothing to do with inappropriate sexual conduct, but rather, was due to the relationship SF had with her father in 2012 and 2013, which was marked by violence and arguments. The applicant submitted that this was based on material which should not have been taken into account.
7. Senior counsel for the applicant referred to a discussion which took place after the delivery of the judgment in which, after she complained about the trial judge's use of that material, her Honour indicated that the applicant ran the risk of the matters she had referred to emerging in cross-examination. Senior counsel for the applicant submitted that in these circumstances, the trial judge was influenced in deciding against a judge alone trial by her view, based on irrelevant material, that it was unlikely that SF would be cross-examined on her past relationship with her father. Senior counsel for the applicant submitted that it was not permissible for the trial judge to rely on this material in support of her conclusion.

The Crown

1. The Crown submitted in reliance on R v BWM (1998) 91 A Crim R 260 (BWM) that an appeal pursuant to s 5F of the Criminal Appeal Act was not a rehearing. It referred in that regard to the judgment of Hunt CJ at CL at 266 and stated that Gleeson CJ concurred with his reasons. In fact, Gleeson CJ expressly reserved his views on that question whilst accepting in that case that the appeal (from a decision giving leave to withdraw acceptance of a plea) was both interlocutory and discretionary: at 261.
2. In relation to Grounds 1-3, the Crown submitted that Redman was not a case of universal application but rather turned on its own facts. It pointed to the fact that in that case, the applicant only had two choices, namely to limit the evidence as proposed by the Crown or otherwise take the risk of being actively prejudiced by giving a candid account.
3. The Crown submitted that the present case was wholly distinguishable. It was pointed out that: the complainant was unconscious at the time of the alleged assaults and thus incapable of giving evidence about them; evidence that SF felt antipathy for the applicant was irrelevant to the prosecution case; SF made it clear that she had never been sexually molested by the applicant; the applicant and SF had a father and daughter relationship for two years; and finally, there was nothing in the evidence of the hospital staff to show that they suspected that SF did not want to see her father because of an apprehension of indecent assault.
4. The Crown submitted that in those circumstances, it was difficult to see why it was necessary to cross-examine SF in the manner suggested. The Crown also submitted that the trial judge did take into account the submission that the applicant was entitled to defend himself by all available means. It noted she expressly took account of what Adams J said in Redman at [16]. It was further submitted that it was appropriate for her Honour to take account of the fact that juries generally were capable of obeying directions.
5. Counsel for the Crown submitted that it cannot be the position that each and every forensic choice of an applicant needs to be considered in determining whether a judge alone trial is justified.
6. In these circumstances, it was submitted that there was no error of discretion and Grounds 1-3 would not succeed.
7. In relation to Ground 4 the Crown submitted that it had not been shown that the material complained of influenced the decision of the trial judge. The Crown submitted it was merely an amplification of background details.

Consideration

1. Neither party disputed the proposition that as the application for leave to appeal was from a discretionary judgment, it was necessary for the applicant to establish error in the sense described in House v The King. In these circumstances, it is not necessary to give further consideration to the nature of an appeal under s 5F(3) of the Criminal Appeal Act: see BWM at 261 and 266; DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [58]-[60], [78], [81] and [84].
2. In R v Belghar [2012] NSWCCA 86 (Belghar), McClellan CJ at CL set out a number of matters relevant to the determination of an application for a judge alone trial. He indicated that there was no presumption in favour of a jury trial, that the subjective views of the accused in dispensing with a jury trial must be a relevant factor, as is the length of a jury trial compared to a judge alone trial: at [96], [99] and [110]. To this must be added of course the power in s 132(5) of the Criminal Procedure Act to refuse to make an order if the trial involves a factual issue requiring the application of objective community standards including, relevantly, the issue of indecency.
3. The trial judge did not proceed on a presumption in favour of a jury trial and took into account the other matters I referred to above in reaching her conclusion.
4. However, it was contended that the trial judge erred in law in failing to apply what was said by Adams J in Redman. The relevant passage from the judgment is in the following terms at [16]: "[16] The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J that '…many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices' (Simmons at [53]). Furthermore, it is to be assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88])."
5. There are a number of matters that need to be considered concerning this submission. First, neither of the other two members of the bench concurred in the passage, each pointing out that the case depended on its own facts: Hoeben CJ at CL at [1]; R A Hulme J at [21].
6. Second, the facts are quite different in the present case. In Redman, the applicant was charged with various sexual offences which occurred around November 2004. The applicant intended to lead evidence saying he could not have committed the offence after 28 November because he was incarcerated from that date until 5 January 2005. It was held that this evidence was so prejudicial it would deprive him of his right to a fair trial and he should not be required to limit his evidence and accept as an agreed fact that he was not in the area where the offence took place after 28 November.
7. By contrast, in the present case the evidence which is sought to be led only has indirect relevance to the issue in question. The evidence of incarceration is apparently sought to be led only by way of explanation of the applicant's absence from SF's life. This is in circumstances where SF has stated that there was no previous incident of sexual assault. Further and importantly, unlike Redman, the applicant was acquitted of the charges brought against him.
8. The trial judge considered these issues and considered that any possible prejudice could be overcome by jury directions. In so doing, she was acting in accordance with well-established authority. The position was correctly summarised by McClellan CJ at CL in Belghar in the following terms at [102]: "[102] The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), is at odds with 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: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial."
9. Despite the assertion by the applicant to the contrary, I see no reason a jury would not follow a direction that they should not take an adverse view of the applicant from the fact that he was incarcerated for crimes which he was found not to have committed.
10. The second area where it was said prejudice would arise was in regard to the ability to cross-examine the nurses and social worker who observed the incidents to the effect that they may have been prejudiced against the applicant because of the comments made by SF regarding not wanting to see her father. There is no evidence of this and it is speculative. If the applicant wishes to risk cross-examining on this issue and an answer is given which the jury cannot properly take into account, once again there is no reason to suggest they would not follow a direction to ignore the evidence.
11. In these circumstances, her Honour did not err in failing to apply Redman. I should add that irrespective of whether there is any principle of the nature of that referred to at [16] of his judgment, Adams J himself recognised it was not a rule of universal application. There is no error in failing to apply it in the present case.
12. Ground 1 of the grounds of appeal is not made out.
13. Ground 2 can be dealt with shortly. Her Honour took into account the potential prejudice if the evidence was led, but concluded it could be overcome by directions. It was not suggested her Honour failed to take into account any relevant matter nor, subject to Ground 4 of the grounds of appeal, that she had taken into account irrelevant matters. Nor was it suggested that the decision was unreasonable in the House v The King sense. In my opinion, this ground has not been made out.
14. The submissions on Ground 3 raise the same issues as those raised in relation to Ground 1. For the same reasons they should be rejected.
15. So far as Ground 4 is concerned, it is correct that the trial judge referred to part of the record of interview which was not relied on by either party. It was not suggested in that context that there was a denial of procedural fairness but rather that she took into account irrelevant matters in reaching her conclusion.
16. The trial judge summarised her conclusion as a result of "a thorough reading of her interview" by saying that SF had a relationship with her father in 2012 and 2013 which was marked on her account by violence and argument. The fact that SF and her father had a relationship over this period was not in issue and a reading of her Honour's judgment does not disclose that the allegation that the relationship was violent and argumentative was taken into account by her in reaching her conclusion. It does not seem to me that the discussion between senior counsel for the applicant and her Honour after delivery of judgment (see above at [30]) leads to a contrary conclusion.
17. In these circumstances, the relevant material did not affect the exercise by her Honour of her discretion. The ground of appeal has not been made out.
18. I have had the benefit of reading the judgment of R A Hulme J and I agree with his observations.

Conclusion

1. In the result, I am of the opinion that leave to appeal should be given but the appeal dismissed. I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
2. HALL J: I agree with the Chief Justice and the orders proposed by him.
3. R A HULME J: I agree with the orders proposed by Bathurst CJ and with his Honour's reasons.
4. I wish to make some observations about delay in this case. They are relevant to matters that come to this Court by way of appeal (or application for leave to appeal) pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).
5. The applicant was charged in January 2014 and committed for trial in September 2014. A trial was scheduled to proceed in June 2015 but the Crown applied for an adjournment. The trial was rescheduled for November 2015.
6. The trial by judge alone application (which had been filed prior to the June trial date) was heard by Traill DCJ on 5 November 2015. Judgment was given on 9 November 2015. Senior counsel for the applicant then indicated that she had instructions to pursue an appeal in this Court under s 5F(3). It was noted that the transcript of 5 November was already available and the judge said she would order a transcript of the judgment and revise it forthwith.
7. In these circumstances it would have been at least a possibility that the application for leave to appeal could have been brought on very quickly in this Court if the Court's sitting arrangements could accommodate it. Sometimes they can, but not always. However it seems to have been assumed by everyone that the foreshadowed proceedings in this Court meant that a new trial date would have to be fixed. For that reason the trial was effectively vacated and the matter was stood over to the Downing Centre's District Court short matters list on Friday in the following week. The matter is now listed for trial on 8 August 2016, over two and half years after the proceedings commenced. (Two of the charges are of prescribed sexual offences involving a child; proceedings which are usually accorded some priority.)
8. In years gone by it was often the case that s 5F appeals were brought on in this Court for hearing as a matter of urgency so as not to disrupt the progress of matters in the trial Court. In more recent times it has become common practice for the proceedings in the trial Court to come to a halt and for there to be sometimes quite significant delay while proceedings in this Court are instituted, heard and determined. That is regrettable. It is partly attributable to a proliferation of such appeals involving complex technical arguments as to the admissibility of evidence or the construction of statutory provisions which underlie the interlocutory judgment or order in question.
9. However, not all matters in which an interlocutory judgment or order is sought to be challenged involve matters of complexity. The present is such an example. Challenges to adjournments are another example: see, for example, Cheih-Wei Lin v R [2015] NSWCCA 264 where the decision was made in the District Court on 18 September 2015; the application in this Court was filed on 22 September; and the hearing was held and judgment was delivered on 24 September. A more recent similar example is Robinson v R [2016] NSWCCA 108.
10. Another example of the expedition that is sometimes possible is A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 where a trial judge made a pre-trial ruling on Thursday 27 August 2015 and this Court heard and determined an application for leave to appeal the following day so as to permit the trial to commence as expected on 7 September. See, similarly, Turnbull v R [2016] NSWCCA 109.
11. Practitioners involved in proceedings in which one party proposes to bring s 5F proceedings in this Court should alert the trial judge to the possibility that the Court may be able to offer an expedited hearing and determination of the matter so as to enable the proceedings to continue with minimal disruption. The Registrar is readily available by way of telephone and/or email to respond to inquiries about whether it may be possible for the Court to accommodate an urgent or at least early hearing of such applications.

Amendments 19 July 2016 - In par [62] the last sentence "A more recent similar example is Robinson v R [2016] NSWCCA 108" moved to the last sentence in par [64]. 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: 19 July 2016