Supreme Court of WA|2006-02-17|Before: Heenan J

The State of Western Australia v Martinez & Ors [2006] WASC 25 (17 February 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- MARTINEZ & ORS [2006] WASC 25

Criminal law - Procedure - Applications for trial by Judge alone - Charges of wilful murder, murder or manslaughter - Three accused - Previous trial by jury concluded with jury unable to agree - Substantial pre-trial publicity - Prosecution opposing applications for trial by Judge alone - Issues arising at trial - Community interests - Factors for consideration

Connell v The Queen (No 6) (1994) 12 WAR 133

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264

Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14

R v Marshall (1986) 43 SASR 448

Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28

Gebert, Haley & Black v The Queen [1992] SASC 3637; (1992) 60 SASR 110

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 103 A Crim R 312

1 EM HEENAN J: The three accused, Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras are jointly charged with the unlawful homicide of Phillip John Walsham at Perth on 28 February 1998. The amended indictment presented against them by the Director of Public Prosecutions for Western Australia alleges that:

"(1) On 28 February 1998 at Perth Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras wilfully murdered Phillip John Walsham.

(2) And in the alternative to Count (1) that on 28 February 1998 at Perth Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras murdered Phillip John Walsham.

(3) And in the further alternative to Count (1) on 28 February 1998 at Perth Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras unlawfully killed Phillip John Walsham."

This replaces an earlier indictment presented on 2 August 2004, alleging that each of the three accused and a fourth person wilfully murdered Phillip John Walsham at Perth on 28 February 1998. Each of the accused and that fourth person stood trial on the indictment of 2 August 2004 before a Judge of this Court (Murray J) and a jury in a trial which lasted about six weeks. As a result of a successful submission of no case to answer, the fourth accused at that trial was acquitted. However, at the end of that trial the jury was unable to agree upon a verdict and was discharged. The three remaining accused were remanded for retrial. The new indictment of 7 February 2006 has only recently been presented against them but, despite its changes, the allegations in the case against the three accused remain the same. Each has declared his intention to plead not guilty to the charges in the new indictment.

2 By applications duly made under the Criminal Procedure Act 2004 (WA) and the Criminal Procedure Rules 2005 each of the three accused has now applied for an order pursuant to s 118 of the Criminal Procedure Act 2004 that the pending retrial should be heard and determined by a Judge sitting alone. Those applications were made by the accused Martinez on 2 February 2006, by the accused Pereiras on 7 February 2006 (and earlier on 15 November 2005) and by the accused Fazzari and Martinez on 7 November 2005. Despite these duplications and overlaps in the applications for trial by Judge alone, no point of procedure has been raised. As required by r 28 of the Criminal Procedure Rules 2005, each of the applications is supported by an affidavit or affidavits which set out the matters required by that rule.

3 The applications are opposed by the Director of Public Prosecutions but no evidence has been tendered on the applications on behalf of the DPP, nor has the DPP sought to cross-examine any of the deponents whose affidavits have been relied upon by the applicants. Detailed submissions in support of and in opposition to the applications were heard by me on 9 February 2006 and, without objection, additional evidence was tendered by counsel for the applicants comprising four separate video recordings of television news and current affairs broadcasts on the ABC news programmes, Channel 7, Channel 9 and Channel 10 which had been broadcast in Western Australia following the discovery of the death of the deceased and in relation to the course of police and coronial investigations which followed. Those materials supplement annexures to the various affidavits of the applicants which copy extensive press reports in reference to the death of the deceased, the coronial inquiry, the continuing police investigation, the charging of the accused and the first trial.

4 The availability of a trial by Judge alone for an indictable offence, as an alternative to trial by jury, in certain circumstances is established by s 118 of the Criminal Procedure Act 2004 (WA) which has replaced an equivalent provision in s 651A of the Criminal Code first introduced in this State by Act No 82 of 1994, s 14. Section 118 of the Criminal Procedure Act 2004 provides:

"118. Trial by judge alone without jury may be ordered

(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.

(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.

(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.

(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties."

5 The joint applications by the three accused satisfy the requirements of s 118(7) and s 118(8) and the applications have been made within time as required by s 118(2). Subsection 118(1) makes it apparent that there is a general power to order the trial by Judge alone on any charge on indictment in a superior court and, by s 118(4) the order sought may be made if the court considers it is in the interests of justice to do so and, in the event of an application by the prosecution, there is consent by the accused. There is no limitation or elaboration of the criteria for the grant of such an order, namely, that "it is in the interests of justice to do so" but it is expressly stated that the court may make such an order if it considers any of the circumstances specified in s 118(5) arise or are likely to arise. It follows, therefore, that subject to the factors specifically stated in the section and already described, the discretion of the court to grant such an order is at large, and that circumstances which may lead to the refusal to make such an order (but will not necessarily do so), may arise if the court considers that 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 (s 118(6)).

6 Although the presence, or possible presence, at the trial of issues involving any of those objective community standards may not absolutely exclude the possibility of an order for trial by Judge alone being made, their express mention by Parliament is significant. Each of the five abstract categories or standards mentioned in this non-exclusive list involves, to a greater or lesser extent, the formation of a value judgment reflecting general community standards at the time or times in question. In particular, they involve a formation of a value judgment concerning standards upon which there can be expected to be some variations of opinion within the community and, hence, the judgment of a number of persons selected from the community at random (a jury empanelled in accordance with law) is likely to be a better indication of the prevailing community standard or standards applicable to the particular case than the value judgment of one person alone - even an experienced Judge. This insight can be taken further as also reflecting an approach, itself not conclusive, that in a case involving issues in which there may be expected to be legitimate scope for differences of opinion the need for the criminal law to reflect an objective community standard is better served by a decision by a panel of fact finders. This simply reveals, as a starting point, that such a panel of fact finders is likely to better reflect the objective standards of the community as a whole than any individual. As I say, however, these are indications provided by the terms of s 118 but it cannot be suggested that their presence or absence in any one case must be conclusive but, rather, that they are significant factors to be considered by a court when entertaining an application for trial by Judge alone.

7 Trial by Judge alone, on a charge of an indictable offence, is available in several Australian jurisdictions, namely, South Australia (Juries Act 1927 (SA), s 7); New South Wales (Criminal Procedure Act 1986 (NSW), s 132); the Australian Capital Territory (Supreme Court Act 1933 (ACT), s 68B) and in this State. The earliest jurisdiction to permit this procedure appears to be South Australia. Such a mode of trial is not possible for Commonwealth indictable offences because of the constitutional requirement for them to be tried by jury - Constitution, s 80 and Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171. However, there are material differences between the legislation in the several jurisdictions and, consequently, care must be exercised when considering the approach to such applications in other cases as, for example, in South Australia where an accused person has a right to elect for a trial by Judge alone.

8 Despite the availability of this mode of trial in several Australian jurisdictions and the now substantial period during which such a mode of trial has been possible in these places, there appears to be very little reported authority dealing with the principles applicable, or the approach to be followed, when determining a contested application for such a mode of trial. This is perhaps not surprising, having regard to the breadth of the discretion which exists as I have already described, but I was not referred to any such authority by any counsel on the present applications. This apparent absence of prior authority is also explicable to a large extent by specific features of the legislation in the other States and the ACT where trial by Judge alone is available. The accused has a right to elect for this mode of trial in South Australia and in the ACT and the consent of the prosecution is required for a trial by Judge alone in New South Wales. It is important that these applications should be determined quickly, because of the need to make practical arrangements for the ensuing trial before its commencement presently listed for March.

9 In the limited time available to me my researches have not shed much greater light on the position. A discussion attempting a comparison of the nature of judicial fact finding with that of a jury in serious criminal cases, noting the Australian approaches and the American experience in the State of Oregon, can be found in "Judicial Fact-finding: Trial by Judge Alone in Serious Criminal Cases" by V Waye [2003] MelbULawRw 16; [2003] MULR 16; (2003) 27 MULR 423 but this does not deal directly with the principles or criteria to be applied when faced with a decision about a choice of one of the two modes of trial. Nor does there appear to be any reported decision of an appeal court in Australia dealing with those issues. There have, of course, been many examples, including quite a number in this State, of trials for serious offences, including wilful murder, attempted murder, various species of fraud and aggravated sexual offences, by Judge alone, some of which have resulted in appeals but which have not addressed these issues. There is a more substantial jurisprudence concerning applications for trial by jury in civil cases, and in particular where a trial by a civil jury has been refused, but there seems to be little in the way of helpful analogy to be found in that jurisprudence apart, perhaps, from the conclusion that an erroneous decision with respect to the choice of mode of trial will not necessarily result in a miscarriage of justice or an entitlement to a retrial - Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14 and Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478. However, in the present circumstances I consider it preferable, and safer, to concentrate on the issues likely to arise in a criminal trial on indictment rather than undertake any close examination of the authorities dealing with the selection or refusal of juries in civil trials because of the very different public interest imperatives which arise in the criminal jurisdiction.

The case against the three accused and the earlier jury trial

10 The substance of the case against the accused is that the three of them, and the fourth person, were in a white Holden Commodore sedan driven by Pereiras on the evening of 27/28 February 1998. On a roadway, in the vicinity of the Stirling train station/Mitchell Freeway interchange, the occupants of the vehicle became engaged in an altercation with pedestrians. The car stopped and several of the accused chased the pedestrians towards a footbridge leading towards the Stirling train station, but without catching them. Returning from that chase, and apparently in some anger at the escape of the pedestrians, the accused Fazzari came down from the footbridge and found the deceased Phillip Walsham sitting on a bench near the adjacent bus station. For no apparent reason Fazzari assaulted Walsham and, in the process, kicked him in the head with considerable force. The accused, Martinez, also kicked Walsham with considerable force at this point. The accused, Pereiras, was in company with Martinez and Fazzari during the pursuit of the pedestrians and was armed with a metal tyre lever. He, too, returned and is said to have been with the other two at the time that Walsham was assaulted and kicked. All three are said to have been very angry, agitated, furious and "pumped up" following their attempts to catch the escaping pedestrians. In the process, Pereiras made a number of disparaging comments about Walsham, referring to him as looking "like a junkie" and being "worthless". The three accused, and the fourth person, then left the scene in the white Holden Commodore leaving Walsham injured and perhaps unconscious. A short time later the three accused met two other persons in a second car at the intersection of Odin Drive and Fulmar Street, a spot about three kilometres from the Stirling train station.

11 Later, at about 2.43 am on the early morning of 28 February 1998, a telephone call was made by a witness to the Emergency 000 number. Another witness, a young woman, Ms Clare Pigliardo, was in a vehicle travelling south, but turning right into Cedric Street at the Stirling Bus/Station interchange, which was momentarily stopped at that turn. She reported seeing a number of figures on the top of the overhead pedestrian bridge which leads to the train station, and, while she was watching, saw a figure fall from the bridge. Another witness present at that location at the same time says that he saw a car parked in the nearby parking area which was consistent in appearance with the white Commodore in which it was later discovered the accused were travelling. The body of Phillip Walsham was later found below the bridge parapet after his death. The medical evidence revealed injuries, including recent injuries, which were consistent with being hit by a swinging tyre lever.

12 None of the accused was found or identified as being at the scene at the time of this second episode, when the deceased died, but they were later arrested and charged by the police after a lengthy investigation. Three tyre levers, admitted to be in the possession of the accused Pereiras at the time of the first assault upon the deceased, were later found by the police on 3 March 1998 hidden down the back of a table in the shed at his home. All three accused have denied returning to the scene of the Stirling train station after they had left following the first assault upon Walsham. Predominantly, therefore, the prosecution case against them is based on circumstantial evidence, including allegations that each had the motive and opportunity to return to the Stirling train station to inflict violence on the deceased. In addition, it is alleged that the accused Martinez, some time in October/November 1998, said that "I threw that Phillip bloke over the Stirling bridge".

13 As well as denying any involvement in a second attack upon Phillip Walsham on the night of 27/28 February 1998, and denying that they returned to the Stirling train station after the first incident, there are some suggestions by the accused that the death of Phillip Walsham, obviously associated with his fall from the overhead footbridge, was or may have been the result of suicide.

14 Obviously, therefore, a crucial issue in the trial will be whether the accused returned to the Stirling train station after the first incident as the prosecution alleges, despite their denials of this. In this respect, although not identifying any of the accused, the evidence of the young woman, Ms Clare Pigliardo, who says she saw a number of figures on the top of the footbridge, while waiting in the car at the nearby intersection, and that she saw one figure apparently back flip over the bridge and fall, will be very important. That evidence has the potential to reduce the likelihood of an inference being drawn that the deceased committed suicide. If accepted, it also establishes that the fatal fall occurred at a time when there were a number of other persons, perhaps three, on the footbridge. This, taken in conjunction with the evidence about the earlier assault, is another circumstance bearing on whether an inference should be drawn that these were the three people who had been involved in the earlier assault or three strangers who, for some reason or another, happened to be with the deceased at the spot and at the time when the fatal fall occurred. The reliability and accuracy of the evidence of this witness was fiercely contested at the earlier trial.

15 This has been the briefest outline of the case against the three accused and their various responses. It is not intended to be comprehensive and there is a great deal of additional evidence which the prosecution intends to adduce. Nevertheless, this description is enough to identify some of the most controversial issues of fact likely to arise at this trial, namely: whether or not the death of the deceased was the result of suicide; whether or not the injuries found on the body of the deceased were caused by a tyre lever matching the description of tyre levers known to have been in the possession of the accused earlier that evening and found later as a result of police searches; whether the evidence of the eyewitness seeing a number of figures on top of the footbridge and one of the figures fall from the overhead level to the ground below is accurate and reliable; and whether the accused, despite their denials, returned to the Stirling train station and assaulted the deceased after the first episode. There are certainly other issues and associated subsidiary issues involving forensic and expert evidence, together with much other evidence bearing on the time or times when various steps in this series of events are alleged to have happened. As earlier noted the first, inconclusive, trial lasted about six weeks and it is expected that the retrial will be of a similar duration.

16 Not surprisingly the discovery of the death of Phillip Walsham, as a result of what appeared to be an assault, attracted great media attention which was sustained during lengthy police investigations before any arrests were made. There was also a coronial inquest into the death of Phillip Walsham conducted by the State Coroner in 2003 which also attracted substantial press and media attention. The conclusion of the Coroner, which will not be admissible in this trial, but which nevertheless attracted publicity at the time, was to the effect that in his view the only reasonable conclusion open was that the three accused were responsible for striking the deceased with a tyre lever and for pushing or throwing him from the footbridge and causing his death, although the Coroner did not consider it possible, on the evidence available to him, to determine individual responsibility for particular acts.

17 The first and inconclusive trial of the three accused took place in Perth from 18 April to 28 May 2005 and during and after trial there was considerable newspaper and other reporting of the evidence and, at the termination of the trial, there was reporting of comments made by the parents of the deceased after the jury had been discharged, expressing their concern and dismay at the turn of events. There had been other reports of comments attributed to the parents of the deceased which reflected their attitudes and opinions about the tragic death of their son due, in their belief, to criminal conduct. These appeared in major local newspapers in March 1998, May 1998, March 1999, February 2001 and April 2004. These and many other press reports dealing with the death of Phillip Walsham, particularly during the period before any charges had been laid, and running to many pages are included in the affidavits filed by the accused in support of the present applications.

Basis for application for trial by Judge alone

18 The applications for trial by Judge alone are advanced on a number of bases. A significant feature of the submissions of each of the applicants is that the extent, duration and intensity of the publicity, combined with the notoriety of this death and accompanying public concern during the course of the police investigation before charges were laid, may result in the minds of jurors being affected and prejudiced against the accused, notwithstanding any directions to the contrary which would, no doubt, be given by a presiding trial Judge. A second basis for the application is that the trial is lengthy, the facts complicated with many minor issues being the subject of dispute, and that the evidence also involves complicated forensic and expert evidence about the cause of death, the likely cause of injuries found on the body of the deceased, the possibility of suicide and the general multiplicity of circumstantial features relied on both individually and collectively to support the prosecution case.

19 There also appears to be a latent premise that the evidence which will establish that the accused were each involved in a violent and unprovoked assault of a serious nature upon the deceased during the first episode near the Stirling train station, after which they left him badly injured, alone and without help, may of itself produce an attitude of revulsion towards the accused in the minds of jurors which may lead them, without sufficient further caution or examination of the other evidence, into concluding that they were the same persons as those alleged to have been involved in the second incident leading to the fatal fall. I consider that it must be accepted that this evidence of the conduct of the first assault is likely to lead jurors to form a very poor opinion of these accused and it will therefore be necessary, at any trial, for a Judge to give a careful direction to the effect that proof of the first assault is not sufficient, by itself, to lead to conviction of a homicide offence resulting from the later death and that the crucial point for the jury to decide is whether or not the prosecution has established beyond reasonable doubt that the accused did cause the fatal fall as well as being involved in the earlier incident.

20 Obviously, the first incident, prejudicial though it undoubtedly is, is relevant in laying the ground work for motive and opportunity for the second alleged attack but it is not sufficient of itself to prove that. An adequate direction to any jury would have to make that unmistakably plain and to point out the impermissibility of any process of reasoning which treated the first assault as being sufficient, alone, to establish involvement in another assault leading to the later death. This is to require a jury to reach a difficult decision, but this is the real point of the case.

21 It is likely, so far as it is possible to say on the information before me at this stage, that the most difficult feature of this case is whether, in all the circumstances, a conclusion beyond reasonable doubt should be reached that any or all of the three accused is, or are, guilty of a homicide offence. The evaluation of the evidence, the assessment of its persuasive and convincing nature, if any, and a final decision as to whether or not any of the charges has been proved beyond reasonable doubt in this case is likely to involve many separate judgments about reliability and relevance of evidence, inferences which can be drawn, and the significance of individual human actions disclosed by the evidence. The multiplicity of these sub issues is likely to lead to many possible permutations and combinations of significance but whether, in the final result, they justify a decision to convict or to acquit will involve a complex value judgment for which very considerable human experience and mature evaluation will be essential.

22 This aspect of the case was emphasised by counsel for the DPP in opposing the applications for trial by Judge alone. Counsel directed attention to the observations of White J in R v Marshall (1986) 43 SASR 448 which was the first case in South Australia, and therefore in Australia, in which an accused had elected to be tried by a Judge without a jury, pursuant to s 7 of the Juries Act 1927 - 1984 (SA). After recording his verdict that the accused was guilty of murder, White J went on to record his recommendation that the law should be changed in South Australia to exclude the possibility of trial by Judge alone in cases of murder or treason - a recommendation which was not acted upon by the legislature in that State or elsewhere. White J, at 497, said:

"Whatever the reasons for opting for trial by Judge alone in complicated fraud and commercial cases and cases where conflicting forensic evidence might bemuse a jury, none of these considerations are sufficient, in my opinion, to supplant a trial by jury in trials as fundamentally important to the community as treason and murder. ...

In a murder case, community values are reflected in a special way on such subject matters as provocation, self-defence, intention and manslaughter; in the latter case, the jury has a 'constitutional right' to bring in a merciful verdict of manslaughter even where the elements of murder are proved. That merciful verdict belongs to the jury, quaere to the Judge. There are also great difficulties in putting to one side, in a case as serious as murder, the kind of prejudicial material which is often introduced into a voir dire hearing. It is true that Magistrates in minor cases and Judges in civil cases often hear evidence on the voir dire or de bene esse and put out of their minds the prejudicial matters discovered in the course of provisional hearings. Nevertheless, in murder trials, where the sentencing consequences of an often finally-balanced decision can be so extraordinarily different, it is most important that the case be decided only upon properly admissible evidence or upon evidence which has been independently adjudged more prejudicial than probative [sic] upon long-established and clearly developed principles. The trial Judge acts as a filter against this polluting evidence which is capable of influencing or enflaming a jury unfairly against the accused, and less capable, but still capable, of influencing a Judge sitting alone in a murder trial, perhaps subconsciously and in spite of his training and rigorous efforts to exclude such evidence from his mind."

His Honour then went on to emphasise the importance of trial by jury, historically and constitutionally, and the confidence which this process had established within the community leading to a further observation (at 499) that the values of the community are so deeply involved in the many value judgments which have to be made in the course of a murder trial, that a trial without a jury on a charge of murder will be in danger of becoming quite a different legal process than it has been traditionally.

23 The fact that the legislature in South Australia did not act on this very carefully considered recommendation by White J in R v Marshall (supra) combined with the fact that the legislature of Western Australia later decided to introduce this option for all trials, including trials of murder, can only mean that there has been an informed legislative decision that a trial by Judge alone in cases of murder is acceptable and appropriate in those cases where it is thought, after proper consideration, to be in the interests of justice. Nevertheless, s 118(6) of the Act in this State may well have been inspired by the concerns which White J expressed in this case. This can only mean, in my view, that one should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. Rather, despite some initial inclinations to the contrary during the course of argument, I am satisfied that one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case. Doing that, as I consider I must, does not mean that one should ignore the expressions of view that cases involving community values, or a combination of factors upon which a judgment reflecting community standards is likely to be necessary, may be better taken by a jury of twelve than by an individual Judge. As earlier explained, s 118(6) of the Criminal Procedure Act 2004 gives recognition to the possible advantages of having a jury decide factual issues which require the application of objective community standards going beyond the five examples mentioned without treating that as being conclusive of any particular application.

24 The written submissions for the accused, Martinez, stress the potential combination of influences of pre-trial publicity, the large volume of evidence and the likely duration of the trial as diminishing the ability of a jury to attend objectively to all the issues in the case. Counsel for Martinez cites the following passage from the judgment of Deane J in Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 301:

"A system of criminal law cannot be attuned to the needs of people whom it exists to serve unless its administration, proceedings and judgment are comprehensible by both the accused and the general public and have the appearance, as well as the substance, of being impartial and just."

Counsel also cites a passage in an extra curial address by the Hon Justice DC Heenan "Trial by Judge Alone" (1995) Journal of Judicial Administration 240 at 241:

"The jurors themselves incur a cost in both money and time which cannot be measured. Long cases cause excessive inconvenience and even hardship for the jurors, imposing a burden upon ordinary citizens which is difficult to justify."

In that same article, the Hon Justice DC Heenan also observed (at 243) that among factors which may be determinative of whether or not an application for trial by Judge alone should be granted would be those cases involving excessive pre-trial publicity where the accused was a prominent public figure, or those cases which were likely to be complex or protracted. Further, counsel submitted that trial by Judge alone should take place when the interests of the community, as well as those of the accused, require it and that such a case might be one which is likely to be very lengthy or expensive or one which involves only a matter of law - Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28.

25 The decision in Kingswell v The Queen (supra) was over the issue of whether or not the offence of importation of narcotics, contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth), which carried up to a maximum penalty of life imprisonment (s 235(2)(c)), contravened s 80 of the Constitution by rendering an offence, punishable with such severe penalties, triable summarily rather than on indictment before a jury. A majority of the court, Gibbs CJ, Mason, Wilson and Dawson JJ, with Brennan and Deane JJ dissenting, decided that the statutory provisions did not offend s 80 of the Constitution and that a trial for criminal offences with serious penalties under Commonwealth law was possible summarily. It is in the context of his dissenting judgment favouring a requirement for trial by jury for Commonwealth offences which carry serious consequences that the passage from the judgment of Deane J cited by counsel for the first accused is to be found. In that context, and in the reasons of Deane J as a whole, it is evident that his Honour saw great practical advantages in the system of trial by jury, including benefits to the public. Also at 301, Deane J said:

"In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings. Equally important, the presence and function of a jury in a criminal trial and the well known tendency of jurors to identify and side with a fellow-citizen who is, in their view, being denied a 'fair go' tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness. Few lawyers with practical experience in criminal matters would deny the importance of the institution of the jury to the maintenance of the appearance, as well as the substance, of impartial justice in criminal cases: cf Knittel and Seiler, 'The Merits of Trial by Jury', Cambridge Law Journal Vol 30 (1972) pp 320 - 321.

The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and the concerns of ordinary people."

26 The citation of the decision in Yager v The Queen (supra) does not, in my respectful view, advance the resolution of the issues raised by these applications. Yager's case was an example of that rare situation where the only issue in the entire trial, after formal admissions, was whether a particular plant (cannabis sativa) was a cannabis plant. Expert evidence was given to establish that the plant cannabis sativa found in the possession of the accused was of the genus cannabis and, consequently, the trial Judge ruled as a matter of law that if the jury members were satisfied that the substance admitted to be in the possession of the accused was cannabis sativa then they should convict. A majority in the High Court held that the construction of the Act was a question of law for the Judge and not for the jury to decide and that the Judge had been entitled to inform the jury that it was their duty to return a verdict of guilty in that situation. This present application does not involve a consideration of the separate roles of a Judge as a judge of matters of law and the jury of matters of fact, in relation to any of the applications which arise.

27 Counsel for the accused Fazzari submits that nothing will arise in this case involving any question of reasonableness, negligence, indecency, obscenity or dangerousness which might disincline a court to order trial by Judge alone, having regard to s 118(6) of the Criminal Procedure Act 2004. Here, however, it is necessary to recall that those five standards set out in the Act are examples only and do not constitute an exhaustive list of factors which may tell against an order for trial by Judge alone. Further reference is made by counsel to the anticipated duration of the trial being about six weeks and to the pre-trial publicity, pointing out that several of the articles or publications referred to in Fazzari's affidavit are still available on internet sites and in various forms held on the internet which provide details of the case. Counsel also submits that factors of complexity arising at the trial, the expense which the accused has already been obliged to face and the inconclusive result of the earlier trial are matters which favour an order for the retrial to be conducted by a Judge alone.

28 Similar submissions are put by counsel for the accused Pereiras, again emphasising the inconclusive result of the first trial, the extent and effect of the considerable pre-trial publicity, and the duration, expense and complexity anticipated for the retrial.

29 It is possible now to address the principal factors relied upon by the applicants in favour of their submissions that there should be an order for trial by Judge alone in this case. It is convenient to deal first with two factors together, namely, the anticipated duration of the trial and the complexity of the evidence. The best estimate of the likely duration of the retrial is that it should take about six weeks or slightly less than the original trial. The submission is that the trial could be expected to be quicker if conducted before a Judge alone, but no quantifiable shortening has been estimated. While I accept that it is possible that the trial may be shorter if conducted before a Judge alone, that is not necessarily so and it may even be longer if one takes into account the need for detailed written reasons for decision to be prepared. I do not see any clear advantage one way or the other in the saving of time by either mode of trial and I consider that this factor is neutral with regard to the present applications. With regard to the complexity of the evidence, it does not seem that any great difficulty was experienced in this regard at the original trial. The evidence may be lengthy and detailed but I am not satisfied that it is unduly complex. While there will be some expert evidence, it is not particularly esoteric, uncommon or difficult to comprehend. The basic issues of fact likely to arise at the trial have already been outlined and the ultimate question of whether or not the prosecution's circumstantial case is sufficient to persuade the tribunal of fact beyond reasonable doubt to convict appears to be the greatest and most controversial issue. I am not satisfied that the issues likely to arise at the retrial are unduly complex or likely to be beyond the ready comprehension of a jury.

30 No one should doubt that each of the accused will be put to substantial expense by undergoing a retrial. However, for the same reasons which bear on the issue of the likely duration of the retrial, there is no evidence to demonstrate a clear, let alone a significant, saving of expense if there were to be a trial by Judge alone rather than by a jury. As I remarked earlier, it is possible, but not certain, that the retrial may be shorter if conducted by a Judge alone and the converse remains a possibility as well. Expense is an issue not just for the accused but also for the prosecution and hence the community, but in neither case can I conclude that there would be a significant saving of expense by one mode of trial rather than by the other in the present case, so this factor is also neutral.

31 The factor of pre-trial publicity is obviously a matter of special concern. The pre-trial publicity, as the affidavits and exhibits tendered on this application have shown, has been very extensive and sustained and some of the remarks encouraged from members of the public or resulting from letters to the editors of various newspapers have been quite one-sided, even unbalanced and prejudiced. Most of that material, and certainly most of the prejudicial material, was published or circulated many years ago. In extreme cases prejudicial pre-trial publicity may result in a permanent stay of proceedings, in cases where there is only trial by jury available - R v Glennon [1992] HCA 16; (1992) 173 CLR 592, but as that decision shows, and history reveals, the occasions when pre-trial publicity may reach that level are likely to be extremely rare: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, per Mason CJ at 34. The risks of pre-trial publicity and the manner in which it can be addressed and a jury warned against its influences, both obvious and insidious, are canvassed at length in Glennon's case.

32 No doubt in this and similar cases detailed warnings would need to be given to any jury empanelled, both at the commencement of the trial and in final addresses, that any verdict given is to be based solely on evidence received at the trial and that any information gleaned from any other source must be disregarded. That would need to be given in an emphatic and a practical manner addressing and acknowledging the breadth of the publicity which was given by the media to this death. Examples of such warnings are to be found in Connell v The Queen (No 6) (1994) 12 WAR 133 at 154 - 158. However, there is no reason to suppose that this would not be an effective means of dealing with the possibility that the jurors may have some knowledge of the circumstances of this case or issues arising. Obviously, similar questions arose at the original trial before a jury and appropriate directions were given by the learned trial Judge, and it is not suggested that they were ineffective, or that any related problems occurred in the course of the trial. The inconclusive result of the first trial cannot be attributed to the result of extraneous influences.

33 It seems to me that trial by Judge alone may, in a particular case, be an effective antidote to a public climate of hostility or prejudice which may have been engendered by pre-trial publicity and, in that situation, that it would be in the interests of justice to order trial by Judge alone.

34 In the present case, however, the nature and extent of the publicity, while significant, is not of a nature to encourage prejudgment, prejudice or hostility. The publicity does not, in my view, provide a sufficient basis for concern that the accused could not receive a fair trial before a jury.

35 The remarks by the Coroner at the conclusion of the inquest into the death of the deceased were made in 2003 and no longer have the prominence they had at that time because of the passage of the years. There is no reason to suppose that, suitably warned, a jury would not bring the customary approach of fairness, impartiality and objectivity to this retrial which would be expected. In other words, I do not consider that the publicity which has occurred in the past relating to the death of Phillip Walsham, or to the arrest, charging and prosecution of these accused will prevent a properly directed jury from delivering an impartial verdict. I do not even think that there is a serious risk that that might occur, but I do acknowledge that appropriate directions to any jury empanelled in this case would be essential.

36 In the end, I do not consider that the interests of justice favour an order for the retrial of this case to be before a Judge alone. Indeed, I am of the view that, having regard to the multiplicity of issues of fact underlining the prosecution's circumstantial case against the accused, there is likely to be great advantage in obtaining the collective judgment which only a jury can provide on behalf of the community as to whether or not that evidence satisfies such a tribunal beyond reasonable doubt that the charges have been proved. For that matter, it is equally important from the viewpoint of the community at large that any decision that the accused or some of them is or are not guilty of the charges laid, should be made by a tribunal representing the wider perspective of community standards than any single decision-maker can reflect. In a case of this difficulty and importance there seems to me to be a considerable advantage in requiring the unanimous agreement of a panel of 12 people for a verdict, rather than that of a single person no matter how great his or her experience may be. This seems to be a case, more than others, when a panel of 12 jurors is likely to bring a collective wisdom and evaluation of all the facts proved which would be preferable to that of any single judgment.

37 For these reasons each of the applications for trial by Judge alone will be refused and the retrial will proceed before a jury to be duly empanelled.

Procedure Rules 2005

The State of Western Australia v Martinez & Ors [2006] WASC 25

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Judgment (72 paragraphs)

The State of Western Australia v Martinez & Ors [2006] WASC 25 (17 February 2006)

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Legislation Cited (4)

Cases Cited (12)