Criminal law - Application for trial by judge alone - Retrial after successful offender appeal against conviction for murder - Interests of justice

Criminal Procedure Act 2004 (WA), s 118

(These reasons were delivered in draft form and have been edited prior to publication).

1 The applicant, accused Stefan Pahia Schmidt, is charged with one count of murder. The indictment alleges that on 9 May 2011 at Cottesloe, he murdered Andrew Kirk Marshall. By application dated 13 March 2014, the accused applied for an order, pursuant to the Criminal Procedure Act 2004 (WA) (the Act) s 118, for a trial by judge alone without a jury.

3 The accused was first tried on the indictment in June 2012 before a judge and jury. On 20 June 2012, the jury returned a verdict of guilty of murder. On 10 December 2012, the accused was sentenced to life imprisonment with a nonparole period of 14 years imprisonment.

4 The accused appealed his conviction. The appeal was heard on 14 June 2013. On 30 August 2013, the Court of Appeal delivered its reasons for unanimously allowing the appeal against conviction. Martin CJ and Mazza J ordered that there be a retrial on the charge of murder. Buss JA gave reasons for his decision to substitute a conviction for manslaughter: Schmidt v The State of Western Australia [2013] WASCA 201.

5 At a status conference held on 3 October 2013, McKechnie J provisionally listed the matter for a retrial for 2 weeks commencing on 19 May 2014.

6 The application is supported by the affidavit of Malcolm John Ayoub, the accused's solicitor. The parties also request me to have regard to the State's brief for prosecution and the various judgments which have been delivered in this matter, including the decision on Hall J in respect of the accused's unsuccessful application for his first trial to be by judge alone: The State of Western Australia v Schmidt [2012] WASC 172.

(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

(2) Any such application must be made before the identity of the trial judge is known to the parties.

(3) On such an application, the court may inform itself in any way it thinks fit.

(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

(5) Without limiting subsection (4), the court may make the order if it considers -

(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

(6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

8 The Act, s 118, has now been considered in a number of cases. It is generally accepted that the section provides a discretion to a judge to grant an order for a trial by judge alone if the judge considers, on the balance of probabilities, 'it is in the interests of justice to do so'. If the discretion is not exercised the default position is that the trial will be heard by judge and jury. In the decision of Coates v The State of Western Australia [2009] WASCA 142, Buss JA, with whom Martin CJ and Owen JA agreed, said that:

It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.

The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury [103] [104].

The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined [105].

10 In TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 McKechnie J emphasised that the extent and nature of pretrial publicity may create an unfair trial. In some cases this can be cured by a direction but in other cases it is in the interests of justice to order a trial by judge alone. McKechnie J stated as follows:

It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pretrial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pretrial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear [29].

11 In the State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 Commissioner Sleight made the following observations:

The issue of pretrial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pretrial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527, 532 533 (Street CJ, Yeldham & Finlay JJ agreeing); The State of Western Australia v BLM [2009] WASCA 88 (Buss JA, with whom Owen, Wheeler & Pullin JJA agreed). It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM [70] [73]; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344; R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603 (Mason CJ & Toohey J). In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pretrial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pretrial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs [87], [34].

12 The State's written submissions said that the Court could not make an order for trial by judge alone because it has been aware of the identity of the trial judge since January 2014. Further information about the State's knowledge was given at the hearing of the application.

13 Since the hearing of the application, the judge in charge of the criminal list, Hall J has redistributed some of the criminal work of the court in May and June. This has meant that the trial judge for Mr Schmidt's trial has changed. The identity of the new trial judge is not known to the parties.

14 Consequently, this objection to the application falls away. The State and the accused agree that this is so. Although, not surprisingly, the State does not agree that the court's lists should be rearranged to facilitate an application under s 118(2).

15 The accused says that it is in the interests of justice that he be tried by judge alone for three reasons, considered alone or in combination. They are:

(2) pretrial publicity of the first trial, meaning that the jury will be aware of the accused's previous conviction for murder; and

(3) a suppression order being an insufficient safeguard.

16 The accused says that as a result of the Court of Appeal's decision the State's case at the retrial will have to be narrower than that at the first trial. The State agrees with this proposition.

17 The accused also says that the State will need to address the rhetorical questions asked by the Chief Justice in his reasons for decision at [73] and [83]. The State says that it will not have to address these questions because they were posed by the Chief Justice only to expose the flaws in the State's case at the first trial. It submits that as the Court of Appeal has, in effect, said that the accused cannot be guilty on this basis, that case will not be put to the jury by the State. I agree with the State's analysis.

18 I digress to note that the issue at the second trial is likely to be whether the accused intended to propel Mr Marshall into the window with sufficient force to break it and thereby cause serious injury either from the broken glass or from the fall to the footpath below: Schmidt v The State of Western Australia [103] and [107] Martin CJ. It does not seem to me that the issue will just be whether the accused intended to propel Mr Marshall through the window so that he would fall to the pavement below, thereby causing serious injury

19 Next, the accused says that as a result of the shift in the State's case, it is reasonable to expect that in reexamination of the accused, the accused's counsel will ask questions which will reveal that there was an earlier trial, that at the earlier trial the accused was not crossexamined about whether his intent at the time he pushed Mr Marshall was the same as the State alleges at the retrial and the reason for the change in the State's case. The accused also submits that counsel will address the jury on the shift in the State's case. The accused says that the questions, evidence and submissions on the shift in the State's case will be confusing to the jury.

20 The State says that such questions will be inadmissible and the manner in which the State put its case at the first trial will be irrelevant. Further, that it is difficult to see how the jury will be confused by the narrowing of the State's case as it relates solely to the accused's intent.

21 I agree with the State. Whilst it is up to the trial judge what questions he or she allows, at this stage, I cannot see how questions relating to the change in the State's case from the first trial or submissions on that issue will be relevant. If the defence seeks to make that an issue, it seems to me that it would be for the purpose of attacking the credibility of the prosecution; a matter which is not in issue and/or for the purpose of introducing an issue which it hopes will confuse the jury by distracting it from the issues which are relevant. The defence cannot rely on distracting, irrelevant issues to justify a trial by judge alone.

22 Also, if the defence went down that path the State may be permitted to lead evidence that the narrower case put by the State was approved of by the Court of Appeal as a possible path by which a jury could reason to guilt. It would be a tactic replete with danger for the accused.

23 Even if the jury became aware that there had been a narrowing of the State's case from the first trial to the second trial, I do not see why this would be confusing to the jury. It does not seem to me a difficult thing for the jury to understand that at an earlier time the State had put its case on the basis that if the jury were satisfied beyond reasonable doubt that the accused intended to push the deceased in the vicinity of the window this would be sufficient to sustain a verdict of guilty but that a ruling of law had been made that this was not sufficient so that in order to find the accused guilty of murder the jury had to be satisfied beyond reasonable doubt that the accused intended to propel Mr Marshall into the window with sufficient force to break it and thereby cause serious injury.

24 It could not be suggested that if such a ruling was made during a trial a jury would be too confused to render it unable to bring in a verdict according to law. I do not see why it would be said that such a ruling after a first trial and before a retrial would be any different from such a ruling made during the course of a trial. I would not allow the application on this ground.

Other grounds jury awareness of previous conviction of murder

25 The accused submits that it is inevitable that the jury will be aware that the accused has already been tried and convicted of murder. The State disputes this on the basis that it will be irrelevant.

26 Regardless of whether it is strictly irrelevant or not, I am prepared to decide this application on the basis that the jury will know that there was a previous trial. This is in fairness to the accused as it is my experience as a trial judge that it is usually fruitless to attempt to keep from a jury that there was an earlier trial. Its existence is usually inadvertently disclosed by a witness or counsel as the trial progresses.

27 This is not to say that generally speaking a jury at a retrial will necessarily know what the verdict was at the first trial or why there is a retrial. But, again in fairness to the accused, I will assume that it will. This is because this information may well be disclosed by someone in front of the jury. Further, there was a significant amount of publicity about the verdict and the appeal. The trial judge may take the view that jury should be told something about the verdict and why the accused is being retried. Thus, I am also prepared to decide this matter on the assumption that the jury will know that the accused was convicted and that conviction was overturned on appeal.

28 The accused says that this knowledge has also to be considered in light of the extensive publicity which occurred when Mr Marshall died, when the first trial was heard, when the verdict was delivered, when the hearing of the appeal occurred and when the decision of the Court of Appeal was handed down.

29 The accused submits that the knowledge that the accused was convicted by an earlier jury 'is sure to inflame and prejudice the second jury to such an extent that the prejudice could not be cured by a direction'. Authority for this proposition is said to be Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593.

30 The case of Festa does not say anything that is relevant to this issue. In fact the High Court has more recently in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 said:

It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza [2007] QB 659.

'Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof'.

...

Whilst the criminal justice system assumes the efficacy of juries, that 'does not involve the assumption that their decisionmaking is unaffected by matters of possible prejudice'. In Glennon, Mason CJ and Toohey J recognised that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial'. What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused [26] [ 29].

31 Finally in respect of this ground the accused says that his apprehension that he will not get a fair trial is a relevant consideration. Assuming that the accused has such a concern, it is of some relevance. However, it is not determinative. An accused is unlikely to know much of the procedure at trial, the steps that can be taken to ensure a fair trial and the experience of the law with the integrity of jurors. The system of trial cannot and does not depend on an individual accused's view about the fairness of the trial process. I suspect that if it did, few accused would ever be tried.

32 I am of the view that it is likely that if the accused was tried by judge and jury he would receive a fair trial. But this is not the test. As Buss JA said in Coates, the question is whether there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. I cannot go so far as to say that there is not a real doubt as to whether each and every juror, even properly instructed, would be able to put out of their minds the prejudicial effect of the publicity and previous verdict, so as to bring in a verdict without regard to such matters.

33 Indeed that doubt is why, the trial judge would have to consider very carefully the terms of any information which he or she permitted the jury to have about those matters and any direction which he or she gave to the jury about the prohibition on the use of such material. The relevance of these considerations, highlights that the information must have a real potential to wrongly infect the jury's verdict.

34 I would not have the same doubt if the only matter relied on by the accused was pretrial publicity. In this respect, I agree with Hall J's decision and reasons in the first application for trial by judge alone.

35 In my view the additional matter which means that the application should succeed on this ground is the prejudicial effect of the publicity of the first trial, the verdict and the appeal. In particular, that the jury is likely to know that the accused has been convicted of murder on the same facts and whilst the Court of Appeal set aside that conviction, a retrial was ordered on the murder charge. To lay people this may imply that the Court of Appeal is of the opinion that not only is there a valid path of reasoning to a verdict of guilty, but that it is the right path.

36 So, unlike in the first application for trial by judge alone, I consider it may be said that any prejudice is likely to be 'wide spread or entrenched': Rayney [88], and that there is a real risk that the views of potential jurors are 'preconceived as to guilt': Rayney [92], to the extent that there is also a real doubt as to whether the accused would receive a fair trial by judge and jury.

37 For these reasons I would allow the application on this ground.

Other grounds - insufficient safeguard of suppression order

38 The accused submits that a suppression order is no safeguard against a jury being compromised by inadmissible knowledge about his connection with an outlaw motor cycle gang (OMCG). He cites the breach of a suppression order which occurred during his first trial when a local radio station broadcast information relating to his connection with an OMCG.

39 If the submission is that there is a risk that the same suppression order will be breached again, I doubt that will happen in light of the last breach. In particular I note that even during the period that the suppression order was lifted, there is no evidence that the media published information relating to the accused's connection with an OMCG.

40 If the submission is that the breach of the suppression order which occurred during the first trial may still result in a miscarriage of justice in a second trial, my view is that it was a singular breach which will have occurred well before the retrial. It is highly unlikely that any potential juror will recall the broadcast. I would not allow the application on this ground.

41 Accordingly, the application for trial by judge alone without a jury is granted on the basis of the prejudicial effect of the publicity of the first trial, the verdict and the appeal.