Criminal Procedure Act 2004 (WA), s 118

1 McKECHNIE J: There is an indictment pending against the accused alleging one count of arson and one count of wilful murder each occurring in early January 2007. At a time before the identity of the judge is made known, the accused has applied for a trial by judge alone without a jury: Criminal Procedure Act 2004 (WA) s 118.

2 The basis for the application is taken from an affidavit by the accused's solicitor:

(a) that both he and the deceased were homosexuals and were in a homosexual relationship with each other.

(b) that both he and the deceased were Jehovah's Witnesses and both were prominent in the affairs of that sect.

(c) that he believes that because of those factors he may not get a fair trial by a jury.

3 In argument, counsel for the applicant expanded the application to include objective prejudice preventing a fair trial. The respondent neither consents nor opposes the application.

4 The relevant legal framework is set out in s 118(4), (5) and (6).

5 The nature of the application is such that there is likely to be little guidance from decided authority. This is so for three reasons. First, an application by a prosecutor must have the consent of the accused limiting the number of contested applications. Second, many decisions are likely to be made after brief argument and extempore as to the judge's conclusion where the interests of justice lie in the particular case. Finally, the nature of the applications is such that there will rarely be an appeal to the Court of Appeal with the consequence of a binding judgment.

6 Some other general comments might be made. The District Court has more experience with trial by judge alone than this court, no doubt because the District Court has a far greater criminal load than this court. Nevertheless, there have been a number of trials by judge alone in this court. Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone. Where a case depends on a detailed consideration of scientific evidence, including DNA evidence, there is a trend towards trial by judge alone. The effect of prejudicial publicity has been acknowledged as a factor favouring trial by judge alone.

7 In this court there are two cases where judges have delivered detailed reasons for their decision relevant to the issue at hand. The applications in each case were made on the basis that pre-trial prejudice rendered a fair trial before a jury unlikely. The first is The State of Western Australia v Martinez [2006] WASC 25; 159 A Crim R 380, a decision of E M Heenan J. The second is Arthurs v The State of Western Australia [2007] WASC 182, a decision of Martin CJ in which Martinez was considered.

8 The application in Martinez was made, in part, because of very significant prejudicial pre-trial publicity. The application in Arthurs was made because of significant prejudicial pre-trial publicity, coupled with a false rumour of involvement in another crime.

Does the Criminal Procedure Act indicate a presumption of trial by jury?

9 In Martinez E M Heenan J noted at [5] that the discretion of the court to grant such an order is at large. At [23] E M Heenan J said:

[T]his 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.

10 In Arthurs, although Martin CJ agreed with part of the passage from Martinez to which I have referred, he differed from E M Heenan J's view that cases in which the essential question was whether a particular accused had committed an act which is, on any view, abhorrent to community values or community standards, is a case in which there should be some form of preference for jury trial: Arthurs [67]. Both judges therefore accepted the principle that in the resolution of an application under s 118 a judge starts from the neutral position as to the preferred mode of trial. Martin CJ reached this position not only by agreement with E M Heenan J but also by reference to the legislative history of the predecessor of s 118, Criminal Code s 651A and, the Law Reform Commission recommendations in respect of trial by judge alone, and the subsequent legislative enactment. Martin CJ said:

It is clear that the Commission had in mind a structure in which the legislature would identify categories of offences in which there would be a presumption against trial by Judge without jury and that in all other cases there would be a presumption in favour of trial by Judge without jury upon application by an accused person. Plainly, s 118 has not embodied that approach. It is reasonable to infer from the legislature's rejection of those proposals that it intended that there would not be a preference for one mode of trial over another. That view of s 118 is supported by its express language. [57]

11 As a matter of comity a judge should follow another judge unless convinced that the decision is wrong. I approach this matter with deference because I am conscious of the powerful and persuasive reasons of both E M Heenan J and Martin CJ respectively, and it is with diffidence that I have reached a different view of s 118. I do so by approaching the issue on a textual analysis of the Criminal Procedure Act.

12 As Martin CJ noted in Arthurs, the amendments enacted in 1994 to the Criminal Code s 651A under ch LXIVA 'trial by judge alone' are substantially different to the Criminal Procedure Act s 118. Under s 651A no judicial order was required for trial by judge alone. A trial without jury occurred when an accused made an election in accordance with the provisions of s 651A and the prosecution consented. As Martin CJ noted in Arthurs [44] that he was a member of the Law Reform Commission which reviewed the criminal and civil justice system of criminal procedure, I should note that I was authorised by the Attorney General to provide drafting instructions to Parliamentary Counsel in respect of ch LXIVA of the Criminal Code. The chapter is now of historical interest only because under s 118 the accused does not have an election to trial by judge alone.

13 What was once an election is now a right to make application to the court for an order. The very requirement to make an application suggests that the ordinary course of trial is trial by jury. In order to change the ordinary course it is necessary for one of the parties to make an application. (A condition to an application by the prosecution is that the defence consents. However, nothing turns on this for present purposes). In the ordinary course, when an application is made, the jurisdiction of the court to make an order is enlivened.

14 There are restrictions on making an order if two or more accused are to be tried together: s 118(8). While the obvious reason for s 118(8) is to avoid horizontal splitting of trials, the prohibition is in respect of trial by judge alone unless the other accused makes application or consents to a prosecution application. There is a prohibition against vertical splitting of charges under s 118(7) requiring any order to be all-encompassing; that is, to apply to every count on an indictment.

15 I do not consider s 118(6) affects the issue. Nor am I inclined to interpret it in the way that E M Heenan J did at [36] of Martinez. In this respect I prefer the judgment of Martin CJ in Arthurs on the point. Section 118(6) is an expression of an obvious matter. Some crimes require the application of objective standards of the community by reference either to the reasonable person, or to the ordinary person, or to general community standards. In such a case, it may be that a judge concludes that the interests of justice would ordinarily displace a trial by jury but, because of the requirement to adjudicate on some objective standard, as I have outlined, an order is not made.

16 In the normal course, any application made to a court is accompanied by an affidavit or other evidence supporting the application. In the case of an application under s 118, the Criminal Procedure Rules require an affidavit to specify certain matters: r 25. The rule is not intended to be exhaustive as to the material that must be put before the court and, indeed, the court is given express power under s 118(3) to inform itself in any way it thinks fit.

17 Section 118(4) provides the breadth of discretion entrusted to the court by the phrase 'the interests of justice', which I examine further below; it does not, in my opinion, resolve the issue whether there is a presumption for trial by judge alone or jury. An application enlivens the discretion to make an order. The interests of justice inform the exercise of the discretion although not entirely because of the use of the word 'may': cf the Interpretation Act (WA) s 56.

18 In s 118(4) both 'may' and 'must' are used. This lends support to the view I take that in the context of s 118 'may' gives rise to a discretion. It is also significant that s 118(5) lists matters that may have an effect on a jury.

19 In summary, s 118(4) requires a court to do two things. The first is to consider, on information, whether it is in the interests of justice to grant an application for trial by judge alone. If the court so concludes, the next issue is whether to exercise a discretion to grant such an order. In the exercise of that discretion, but without limiting it, the matters, where relevant, contained within s 118(5) and s 118(6) become important.

20 All this leads me to conclude that, with great respect, I am unable to follow the principle in Arthurs and Martinez that in the resolution of the application a judge starts from a neutral position as to a preferred mode of trial. Instead, it is my view that on an application under s 118 a judge, concluding that it is in the interests of justice for a trial to be held before a judge alone instead of judge and jury, exercises a discretion whether to make the order for trial by judge alone.

21 In most cases, a finding on the interests of justice is likely to be determinative of the exercise of the discretion to make an order but there may be some occasions where, despite that finding, the discretion is effectively exercised to continue trial by jury.

22 The compendious phrase 'the interests of justice' appears in many statutes and is a phrase often referred to by courts. Consideration of the interests of justice arises in many contexts. In relation to cross-vesting jurisdiction, the Full Court of the Family Court in Re Chapman & Jansen (1990) FLC 92-139 said per Nicholson CJ:

In my view the expression 'the interests of justice' is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred. (77,959)

23 See also Bankinvest v AG v Seabrook (1988) 14 NSWLR 711.

24 BHP Billiton Ltd v Shultz [2004] HCA 61; 221 CLR 400, is another case where the phrase 'the interests of justice' was considered in respect of cross-vesting legislation. As Kirby J held at [172] the determination of the interests of justice is a power that involved the judicial evaluation of a number of factors. It requires an ultimate judicial decision framed in terms of criteria expressed in very general language.

25 In a matter somewhat closer to the present case, in that it concerned criminal proceedings, Malcolm CJ referred to the interests of justice in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 and said:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice. (251)

26 In Re Corruption and Crime Commission; Ex Parte West Australian Newspapers [2007] WASC 201, Templeman J at [29] regarded the test for determining the interests of justice as the avoidance of injustice.

27 As the District Court has all the powers of the Supreme Court in its criminal jurisdiction, decisions of that court are of significant persuasive value. In The State of Western Australia v Veskovich [2005] WADC 111. Wisbey DCJ considered the phrase 'is in the interests of justice' holding:

The expression 'in the interests of justice' is not defined, but it is reasonable to assume that it refers to a fair trial according to law. Essentially it appears to me that it is only if there is a likelihood that a fair trial according to law may not eventuate in a jury trial that the discretion reposed in s 118(4) is enlivened.

I am not satisfied that the applicant has established a basis calling for the exercise of the Court's discretion. [5], [9]

28 The phrase 'the interests of justice' is not an expression capable of easy articulation or explanation because it is conclusionary in its nature. Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie. The phrase 'the interests of justice' is devoid of content except where it is given form by the particular facts and circumstances of a case.

29 Both Malcolm CJ in Mickelberg, and Wisbey DCJ in Veskovich, pointed to the importance of a fair trial and it is undoubted that the fairness of a trial will be an important component of the interests of justice. 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 pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial 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.

30 One thing is clear: the interests of justice are not coterminous with the interests of an accused: R v Cox [1960] VicRp 102; [1960] VR 665:

[T]he judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a very different matter.

31 To pay undue account to the subjective views of an accused person, as suggested in Arthurs at [79], [80], may have the result that a decision is really being made for the interests of an accused, not the interests of justice. Conversely, to take undue account that 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 (Martinez [36]) unduly limits the general discretion to order trial by judge alone, reserving it in practical terms to the sorts of cases where it is often used and which I have earlier described.

32 There is a public interest in the administration of justice carried out in public and in serious cases by the representatives of the public sitting as jurors. The fact that a judge must deliver written reasons, where a jury gives a general verdict, is of no consequence. That is a difference between the two modes of trial provided for by law. The inscrutability of a verdict of 12 is tempered by unanimity. The verdict of one is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid.

33 The question of prejudicial publicity is inevitably one of degree; so is the effect of bias. In the present case, no complaint is made of prejudicial publicity. Rather, the apprehension of the accused is of bias as to sexual orientation and religion. Unlike Connell v The Queen (No 6) (1994) 12 WAR 133, where there was considerable research into jury attitudes, there is no evidence of actual bias in the present case. I have no evidence or information on which to make any findings whether a twenty-first century jury, randomly selected from male and female members, would have any bias or prejudice for or against homosexuals or Jehovah's Witnesses.

34 In the present case, there is no evidence that the accused will receive an unfair trial or that there is a real risk he will do so if tried by jury; there is merely the accused's apprehension that he may not. It is not difficult to imagine situations where an accused may be apprehensive about trial by a particular judge, once that judge's identity is known. The accused may perceive that they will not get a fair trial, perhaps because of what they have heard of the judge's reputation, whether correct or erroneous. In that position of course, the accused cannot make a further application. I use this example to illustrate that indeed the accused's perception in favour of or against trial by jury is a very insecure basis upon which to judge the interests of justice. Where the interests of justice lie in a particular case may be difficult to articulate but must nevertheless be an objective deduction reached judicially.

35 Generally, an applicant must satisfy the court that there are grounds for granting the application. The usual way in which a court is satisfied is by evidence. This is not an exclusive method however; sometimes notorious facts might be prayed in aid to bolster a submission.

36 In the present case, there are no facts to prove or disprove the applicant's apprehension. All there is is the applicant's apprehension. Under s 118(4), the court's discretion to make an order is enlivened if it is considered that it is in the interests of justice to do so. I am unpersuaded on the material advanced that it is in the interests of justice to make such an order and the application is therefore dismissed.