R v White

1. [1]

   On 17 May 2023, police attended Yallambee Lodge (or “the Lodge”) following a triple zero call made by a Registered Nurse, seeking assistance with a “very aggressive resident”, in possession of a knife. That resident was Clare Nowland (“the deceased”). She was a 95 year old woman suffering from symptoms consistent with dementia. Mrs Nowland was reliant on a 4-wheel walker and her mobility was limited to a slow pace.

2. [2]

   One of the attending police officers was Kristian James Samuel White (“the applicant”). Attending officers, including the applicant, encountered Mrs Nowland sitting in a chair, holding a knife. The entire interaction between the police officers and Mrs Nowland is captured on Body Worn Video (“BWV”) footage. Attempts by an ambulance officer and two police officers to have Mrs Nowland relinquish the knife, were unsuccessful.

3. [3]

   During the interaction with Mrs Nowland, the applicant deliberately discharged his taser towards her, causing her to fall backwards onto the floor. She hit her head on the ground and sustained a fatal head injury. Mrs Nowland died seven days after the incident, on 24 May 2023.

4. [4]

   The applicant was initially served with Future Court Attendance Notices for charges of reckless infliction of grievous bodily harm; assault occasioning actual bodily harm; and assault. Following the death of Mrs Nowland, the applicant was charged with manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).

5. [5]

   The applicant was arraigned on an indictment containing one count of manslaughter. He has pleaded not guilty to that count and the trial is listed to commence on 11 November 2024.

6. [6]

   The applicant moves on a Notice of Motion filed on 10 October 2024 seeking an order for a Judge alone trial pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (“CPA”). I am satisfied that the applicant has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

7. [7]

   The applicant contends that it is in the interests of justice that the trial proceed by way of Judge alone for two reasons. First, because of the potential impact of adverse publicity; and second, because of the asserted complexity of issues in the trial. I will deal with each of these grounds and the respective submissions made, following a summary of the evidence relied upon in support of the application.

8. [8]

   The application was heard before me on 14 October 2024. The parties indicated that they would not require reasons prior to the commencement of the trial and were content for orders to be made with reasons to be provided on a subsequent date.

9. [9]

   On 15 October 2024, I refused the application for trial by Judge alone and dismissed the Notice of Motion. I now provide reasons for those orders.

10. [10]

    Mrs Nowland was a resident of Yallambee Lodge in May 2023. An expert report authored by Professor Susan Kurrle, specialist geriatrician, and dated 10 June 2024 has been obtained in preparation for the trial. In her expert opinion, Mrs Nowland’s general condition at the relevant time was consistent with dementia, although a formal diagnosis of dementia had not been made at the time of the incident.

11. [11]

    In the early hours of 17 May 2023, staff at the Lodge observed that Mrs Nowland was holding two steak knives in her left hand and a jug of prunes in her right hand. She held onto these items in each of her hands, resting them on her walker, as she slowly pushed the walker along. Requests by the staff to have Mrs Nowland relinquish the steak knives were unsuccessful. She eventually relinquished the jug of prunes.

12. [12]

    Whilst armed with the knives, the deceased entered the rooms of three residents. Mrs Nowland wheeled herself out of the first resident’s room after a short time. She then entered the second and third rooms, sitting either on the bed or on a chair in each room. Attempts to persuade Mrs Nowland to leave the third resident’s room were unsuccessful. She remained seated on a chair with her walker in front of her and the two knives resting on her knees.

13. [13]

    The staff attempted to contact Mrs Nowland’s children, initially without success. In the meantime, staff continued to request that Mrs Nowland relinquish the knives. At one point Mrs Nowland attempted to throw one of the knives towards a carer. That knife fell to the ground without hitting anyone.

14. [14]

    It was following these events that the in-charge overnight Registered Nurse at the Lodge called triple zero seeking assistance. As indicated above, the deceased was described by the Registered Nurse as “very aggressive” and in possession of a knife.

15. [15]

    Arrangements were made for an ambulance to attend the Lodge and, due to the mention of a knife, police also attended. One of the attending police officers was the applicant.

16. [16]

    Upon arrival of the attending officers, Mrs Nowland was seated in a chair holding a knife (having already tossed the second knife away). Attempts to have Mrs Nowland relinquish the knife that she was still holding were unsuccessful. During this interaction the applicant discharged his taser, causing Mrs Nowland to fall backwards, hitting her head on the floor and sustaining a fatal head injury. She died seven days later.

17. [17]

    The Crown relies upon two bases for involuntary manslaughter. The first basis is manslaughter by criminal negligence. The Crown must prove each of the following elements beyond reasonable doubt:

18. [18]

    The second, and alternative, basis of liability is manslaughter by unlawful and dangerous act. If the jury is not satisfied of the first basis, the Crown must prove each of the following elements beyond reasonable doubt:

19. [19]

    An analysis of the elements of involuntary manslaughter and some of the relevant judicial directions are contained in Annexure A to the Crown’s written submissions (MFI 2). No issue is taken with that analysis. I have found that analysis extremely useful in considering the second basis upon which the accused relies in support of the application, namely, the complexity of the issues in the trial. I have therefore reproduced that Annexure as Annexure A to this judgment.

20. [20]

    The fundamental importance of trial by jury was discussed in Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53, a case involving the operation of s 80 of the Constitution. Gaudron J observed at [80]-[81]:

21. [21]

    The importance of trial by jury in protecting the liberty of the individual and in promoting public confidence in the administration of justice is of course subject to legislative provisions in New South Wales, which allow for trial by Judge alone.

22. [22]

    The origin of a trial by jury was to provide protection for the accused, in that he or she would be tried by their peers. As observed by McClellan CJ at CL in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 (“Belghar”) at [99], it is for this reason that the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in an election to be tried by Judge alone, must be a relevant factor (see also R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 (“Simmons (No 4)”) at [61]-[66]; Arthurs v State of Western Australia [2007] WASC 182 (“Arthurs”) at [79]). I have had regard to the views of the applicant. I acknowledge that a decision by an accused to elect to be tried by Judge alone, is a weighty consideration because it reflects a considered decision to forego the protections that are afforded by trial by one’s peers.

23. [23]

    Sections 131-132A of the CPA replaced earlier provisions allowing for a Judge alone trial on 14 January 2011. As Hamill J observed in Simmons (No 4) at [10]-[11], the repealed provisions were in substantially the same terms as one another, whereas the introduction of the new versions of ss 131-132A involved two significant changes. First, although s 132A maintains the requirement that Judge alone applications be made in a timely fashion, applications can be made within a 28 day period before trial, with the leave of the Court. Second, an accused can elect for a Judge alone trial without the consent of the Director of Public Prosecutions. This change was “introduced to remove the form of veto power held by the prosecution”: R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729 at [10].

24. [24]

    Sections 131-132A of the CPA provide:

25. [25]

    Pursuant to s 132(4) of the CPA, I am required to consider whether it is in the interests of justice that an order be made for a trial by Judge alone. The formulation of s 132(4) confers a wide discretion. The principles relevant to the exercise of that discretion have been considered in a number of decisions of first instance judges in this Court and in the Court of Criminal Appeal: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 (“Farrugia”); R v Stanley [2013] NSWCCA 124 (“Stanley”); R v Dawson [2022] NSWSC 552; R v Niguidula [2023] NSWSC 290; R v Obeid [2015] NSWSC 897 (“Obeid”); Simmons (No 4). A comprehensive analysis of the applicable legal principles appears in the judgment of McClellan CJ at CL in Belghar at [89]-[114].

26. [26]

    Some of the guiding principles that can be distilled from these authorities are as follows.

27. [27]

    Firstly, there is no presumption that a trial should be conducted with a jury: R v Belghar at [96]; R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511 at [21(1)].

28. [28]

    Secondly, an accused is not entitled to a trial by Judge alone simply because he or she has made an election to be tried by a Judge alone. However, the fact that an accused has decided, on legal advice, to relinquish his or her right to a jury trial is a matter to be weighed in determining where the interests of justice lie: Belghar at [99]; Simmons (No 4) at [60]; R v Qaumi (No 14) (Judge alone application) [2016] NSWSC 274 at [22]. It should be noted that a mere unstated apprehension without supporting evidence will not be sufficient: Belghar at [102]; R v Sean Lee King [2013] NSWSC 448 at [40]-[46].

29. [29]

    Thirdly, the interests of an accused are not necessarily the interests of justice. The community receives important collateral benefits from a trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with the community standards: Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [7]; Stanley at [43]; R v Ahmed [2022] NSWSC 1268 at [67].

30. [30]

    Acknowledging that the interests of justice are not limited to the interests of an accused, does not detract from the emphasis that should be placed upon the fundamental importance of an accused receiving a fair trial. Underpinning that principle is the presumption of innocence and the substantial consequences that flow to an individual upon a finding of guilt. Furthermore, the interest of the community is not in ensuring that an accused is convicted but in ensuring that an individual accused of a crime receives a fair trial according to law.

31. [31]

    Fourthly, s 131 of the CPA does not cast a burden of proof on an accused person. Although an accused carries an evidentiary onus, the Court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which “a presumption” of trial by jury is displaced: Belghar at [96].

32. [32]

    Fifthly, Parliament has made it clear that it may be preferable “in the interests of justice” that there should be a trial by jury where an alleged offence involves objective community standards. Section 132(5) sets out a non-exhaustive list of issues requiring the application of objective community standards, including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness. That does not mean that it necessarily follows, in a case involving the application of objective community standards, that there should be a jury trial. However, whether or not the issues involve the application of community standards is a relevant consideration. Each case will depend upon its own facts and circumstances.

The Evidence

1. [33]

   The evidence relied upon by the applicant is primarily contained in Exhibits 1 and 2 on the application. Exhibit 1 is the applicant’s folder of materials. Exhibit 2 is a USB containing an electronic form of the media articles and social media posts, in addition to 8 video clips that I viewed during the proceedings. Exhibit 3 is a Daily Mail article dated 16 June 2020. Exhibit 4 is a Sydney Morning Herald article dated 19 August 2024 which is said to contain information as to the distribution of the Sydney Morning Herald. Exhibit 5 is a document from the Channel 9 website that is said to contain information as to the distribution of the “Today Show”.

2. [34]

   The affidavit of Brooke Fitzpatrick, sworn on 10 October 2024, (together with Annexures A and B to that affidavit) was also read on the application. Annexure A is a helpful index to the evidence, itemising the media articles and social media posts upon which the applicant relies in submitting that there has been a large degree of relatively recent published material about the death of Mrs Nowland which is highly prejudicial to the interests of the accused in his trial. Annexure B is an expert report authored by Lewis Von Kliem dated 9 October 2024 regarding a threat assessment of Mrs Nowland and the responsive use of force by the applicant in the course of the incident on 17 May 2023.

3. [35]

   The pre-trial publicity can be loosely separated into three categories. The first category relates to publicity generated in the commercial media which includes articles in the Sydney Morning Herald and the Daily Mail. The second category involves social media posts generated by individuals referred to as Russell Manser and the “Aussie Cossack”. The third category relates to social media posts, primarily generated by individuals, in response to media reporting about the death of Mrs Nowland.

4. [36]

   It is necessary to briefly summarise each of the items referred to in Annexure A of Ms Fitzpatrick’s affidavit, by reference to the index provided in that annexure:

5. [37]

   The Crown relies upon the affidavit of Tessa Lumsden sworn on 11 October 2024. Ms Lumsden deposes that it can be seen from the material contained in Annexure A to Ms Fitzpatrick’s affidavit, that most of the publications occurred around two key dates close in time to the incident, namely on 17 May 2023 and on 24 May 2023. Some of the material is still available online. Ms Lumsden also deposes that on 27 May 2023 a protest took place, criticising the conduct of police in the incident. Enquiries reveal that “at its peak there was 15 protesters in total”. The protest march was reported in the mainstream media on 27 and 29 May 2023.

6. [38]

   The applicant submitted that the pre-trial publicity is such that at least some of the jury in waiting are likely to have had relatively recent exposure to prejudicial material adverse to the accused’s interests in the trial. This includes prejudicial material about previous conduct of the accused, as well as journalistic and social media commentary that portrays him as a murderer and concludes that his conduct was otherwise unnecessary and criminal in nature. The pre-trial publicity is said to be extreme and widespread, and still publicly available.

7. [39]

   Although much of the publicity relied upon dates back to May 2023, the applicant submitted that the published material is vitriolic and assumes the guilt of the applicant, calling for retribution against him. The applicant submitted judicial direction could not cure the asserted prejudice.

8. [40]

   The applicant also relies on the asserted complexity of the issues in the trial in support of the contention that it is in the interests of justice that the trial proceed as a Judge alone trial. The applicant submitted that I ought to be guarded about simply accepting the Crown’s submission that the issues in the trial require the application of community standards, particularly having regard to the complex issues that will have to be determined.

9. [41]

   The two bases of liability for involuntary manslaughter (criminal negligence and in the alternative, unlawful and dangerous act), introduce a level of complexity that is said to be compounded by the various legislative provisions that are relied on in order to prove each element of the offence. The legislative provisions include s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and ss 20, 21 and 81 of the Mental Health Act 2007 (NSW).

10. [42]

    A further complicating factor is that in determining whether the act of the accused was unlawful, a consideration of Police Standard Operating Procedures will be required. The applicant submitted that there are layers of complexity that are not limited to statutory considerations but extend also to a comparison between a breach of duty to a civil standard and a breach of duty that merits criminal punishment.

11. [43]

    The Crown points to the evidence of pre-trial publicity to make the point that the publicity relates to articles or social media posts that date back to May 2023. Although some (or all) of this material, may still be available online, there is no evidence that any of the articles or social media posts have been viewed recently.

12. [44]

    Secondly, the Crown submitted that to the extent that opprobrium or vilification is attendant in the comments and social media posts identified by the applicant, that material plainly represents either comments by those with clear bias against police or is deliberately provocative and lacking in credibility.

13. [45]

    Thirdly, the Crown submitted that the evidence does not demonstrate that the pre-trial publicity is extreme, widespread or “extraordinary”.

14. [46]

    Fourthly, the Crown submitted that the law assumes that jurors will follow the directions of law given to them. To the extent that individuals in the jury panel have been exposed to pre-trial publicity, they will have an opportunity to make an application to be excused if they cannot bring an impartial mind to the issues at trial. Furthermore, the jury, once selected, will be directed in the usual way not to access the internet in relation to this incident and to otherwise put out of their minds any publicity they may have been exposed to in connection with the trial.

15. [47]

    The Crown further submitted that the issues in the trial are not inherently complex issues and are of a kind which are routinely given in jury trials. The Crown submitted that the main issues in the trial are of a kind which involve the application of community standards in relation to reasonableness, negligence and dangerousness and it is therefore preferable for those issues to be determined by a jury.

Determination

1. [48]

   Although I will deal with each ground separately, I have had regard to the combined force of the grounds relied upon by the applicant, in determining the application.

2. [49]

   Proceedings such as these will invariably attract some publicity in mainstream media forums as well as commentary in the online world. The nature and extent of that will vary from case to case. The potential impact, upon a criminal trial, of articles and posts published on the internet has been the subject of judicial observation. In R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 Wood CJ at CL observed at [80]-[82]:

3. [50]

   Some practices have been adopted by the courts to meet the changing circumstances brought about by technological advancement in an effort to protect the right to a fair trial. These practices include model judicial instructions and warnings to jurors.

4. [51]

   In Simmons (No 4) at [83]-[88], Hamill J noted that there are a number of cases in New South Wales where applications for trial by Judge alone have been based on prejudice arising from pre-trial publicity. His Honour noted that, overwhelmingly, it has been held that the prejudice identified is capable of being overcome by direction to the jury. In spite of the persuasiveness of some academic writings questioning the effectiveness of judicial direction in this regard, there is a long line of authority that jurors are capable of, and do, follow directions, including directions requiring them to disregard prejudicial publicity. It should be assumed that jurors will undertake their duties in a fair and balanced way, informed only by the evidence adduced at trial: Obeid at [67]-[68]; R v Yuill (1993) 69 A Crim R 450 at 453-454.

5. [52]

   The question involves a consideration of the nature and extent of the prejudicial material. It is a question of degree: Simmons (No 4) at [88]. There have been cases where the prejudicial effect of such material was so great that an order for a Judge alone trial was made: Arthurs; R v GSR (No 3) [2011] NSWDC 17; R v Spiteri-Ahern; R v Barber; R v Zraika [2017] NSWSC 1275.

6. [53]

   In R v Sione; R v Dawson [2023] NSWSC 1594 a Judge alone trial was ordered owing to a combination of prejudicial (and inadmissible) material; graphic material; and the complexity of the trial. In that instance, the combination of factors (not only prejudicial material) militated in favour of a decision to order a Judge alone trial.

7. [54]

   As indicated above, the media articles and social media posts relied upon in this case, can be loosely separated into three categories. Each category, however, relates to articles and/or posts published in 2023 and overwhelmingly around two key dates close in time to the incident, being 17 May 2023 and 24 May 2023. Annexure A to Ms Fitzpatrick’s affidavit reveals that with respect to the social media posts, the number of “views” or “likes” ranged between 48 and 126,200. Although some of the material is still accessible online, there is no evidence that the posts have been viewed recently.

8. [55]

   I do not intend to specifically refer to each item referenced in Annexure A to Ms Fitzpatrick’s affidavit although I will address the contents of some of those articles or posts, in determining the issue of whether the interests of justice favour trying the applicant by way of a judge sitting alone.

9. [56]

   The first category of pre-trial publicity relates to articles in the mainstream commercial media. Exhibit 3 is an article claiming that the Daily Mail had an audience of 10.64 million as of May 2020. The content of that article is relied upon by the applicant as evidence of the reach of the Daily Mail. This evidence has limited weight in that it says nothing about the audience of the Daily Mail in May 2023 and, more importantly, says little about the number of people who may have read the article as relevant to this application.

10. [57]

    The applicant relies upon two articles published by the Daily Mail, dated 23 May 2023. In addition to referring to the incident that gives rise to the charge against the applicant, the articles also refer to a previous incident involving the applicant. That previous incident relates to the arrest of a man in the Australian Capital Territory for driving related offences (“the ACT incident”). The applicant and his colleague stopped and detained the man until Australian Federal Police officers arrived at the scene. In doing so, the applicant and his colleague were acting outside of their jurisdiction. The article also refers to a threat made by the applicant’s colleague and comments made by the ACT Magistrate, dealing with the driving offences, that describe the conduct of the officers as “outrageous” and “horrifying”.

11. [58]

    The applicant also relies upon Sydney Morning Herald articles, dated 18 May 2023 and 22 May 2023. One of the articles refers to the ACT incident involving the applicant. The other erroneously refers to Mrs Nowland having been tasered “twice”. Exhibit 4 is an article dated 19 August 2024, reporting that the Sydney Morning Herald has a “cross-platform readership” of 7.2 million. The applicant relies upon that exhibit as evidence of the reach of the Sydney Morning Herald. Although I accept that the Sydney Morning Herald has a wide reach, the articles relied upon do not contain material that is so prejudicial that it warrants a trial by Judge alone, even when taken together with all of the other media articles and social media posts.

12. [59]

    To the extent that any of the reporting included information inconsistent with the Crown evidence, it is highly unlikely that such misreporting will have a prejudicial effect in this case given that the entire incident was captured on BWV footage.

13. [60]

    In addition to the Daily Mail articles, some of the social media posts refer to previous “misconduct” perpetrated by the applicant, referring to him as a “rogue cop”. They also express opinions about the applicant being guilty of murder and a systemic cover up by the police, implying a system of police condoning murder. Some of the social media posts assume the guilt of the applicant for the offence of murder.

14. [61]

    However, these social media posts, in the main, relate to obscure websites or groups and social media which can fairly be said to have very limited importance or reach amongst the general community. By way of example, Russell Manser was convicted of several bank robberies in the 1980s and 1990s and spent 23 years in various prisons in New South Wales, Queensland and the Northern Territory.

15. [62]

    The “Aussie Cossack” claims to have gone to school with the applicant where he claims he was responsible for bullying the applicant. He also refers to the applicant as a “rogue cop”. However, the tone and generalised conspiratorial narrative of the material, while vitriolic, is lacking in credibility and in my view is highly unlikely to influence fair-minded members of the community.

16. [63]

    Each of the articles and media posts referring to this prior incident date back to 2023. Although the “fade factor” between the media scrutiny and the trial is not a decisive consideration, there is simply no evidence that these articles and media posts have been viewed recently. In addition, even if it can be inferred that some of the potential jurors may have viewed this material, because some of it is still online, the previous “misconduct” on the part of this applicant is limited to acting outside of his jurisdiction. The applicant was not the person who proffered the threat.

17. [64]

    The ACT incident involving the applicant will not be the subject of evidence at the trial. Although the Magistrate described the conduct of the officers as “outrageous” and “horrifying”, the applicant was not charged with misconduct. To the extent that the articles and social media posts referring to this previous incident gives rise to a risk of prejudice to the applicant, that risk, in my view, can comfortably be dealt with by way of judicial direction.

18. [65]

    A sub-category of the articles and media posts relied upon, involve opinions expressed in the media by criminal lawyers. There are five such items. With respect to Item 3.5 (in Annexure A to this judgment), the TikTok post is dated 19 May 2023 and had 22,800 views. I have no information as to when the post was viewed and whether it has been viewed recently. Each of these items include opinions by lawyers suggesting that the appropriate charge upon which to proceed against the applicant is murder. One of the items, appearing on a law firm’s website, erroneously refers to the deceased having been tasered twice. The material is limited in volume and involves expressions of opinion by a handful of individuals, albeit lawyers, about what the appropriate charge should be.

19. [66]

    The opinions of these individuals have limited capacity to engender prejudice in potential jurors. Other than Item 3.5, there is no evidence as to whether and on how many occasions the other posts were viewed. Some of the media posts appear on the websites of the individual law firm, as opposed to websites more generally available or accessed by the public. Furthermore, an indictment containing one count of manslaughter will be presented against the applicant. The jury will be instructed that they must return a verdict based solely on the evidence in the trial and applying the directions of law that will be provided to them.

20. [67]

    It is highly unlikely, in those circumstances, that a jury of fair-minded individuals, will be influenced by the opinions of a handful of lawyers, assuming they have recently accessed the social media posts.

21. [68]

    Having considered all of the articles and social media posts relied upon in support of the application, I am not of the view that it is in the interests of justice to make an order for a Judge alone trial. However, the applicant does not rely on this basis alone. The applicant also relies upon the asserted complexity of the issues in the trial. I will now deal with the second basis upon which the application is made.

22. [69]

    In Farrugia Basten JA (Button J agreeing, Hamill J giving separate reasons) observed at [11]:

23. [70]

    This trial is not a lengthy trial. Although the expert evidence is relied upon by both parties, this trial does not involve a “battle of the experts”. The act of the applicant causative of the death of Mrs Nowland is captured on BWV footage. Neither party will adduce evidence from their expert by way of a conclusion as to the issue of “exceptional circumstances”. To the extent that expert evidence will be adduced in the trial, it is not evidence of a complex technical or scientific nature.

24. [71]

    In relation to the law, the jury will be assisted by way of directions, more likely than not, in writing, about the elements of the offence and directions in relation to the two bases of liability relied upon by the Crown. I am not of the view that the issues in the trial involve a level of complexity militating in favour of a Judge alone trial.

25. [72]

    Concepts such as “reasonableness”, “negligence” and “dangerousness”, are specifically listed in s 132(5) of the CPA as issues requiring the application of objective community standards. The analysis contained at Annexure A to the Crown’s written submissions (reproduced as Annexure A to this judgment), discloses that reasonableness is re-emphasised throughout the directions. By way of example, with respect to manslaughter by criminal negligence, the Crown must prove beyond reasonable doubt that the applicant breached the duty of care owed by him to the deceased. The issue to be determined is the standard of care required to be exercised by a reasonable person, that is, an ordinary member of the community, in the situation in which the applicant was placed. The issue of reasonableness in that context is a matter that a jury is best placed to decide.

26. [73]

    In determining this application, I have been particularly mindful of the fact that the applicant has expressed, by way of his election, a real apprehension that he would not be able to receive a fair trial before a jury. However, having considered the evidence relied upon by the applicant and the respective submissions, I am not of the view that it is in the interests of justice that the Court make a trial by Judge alone order.

Orders

1. [74]

   For the foregoing reasons I make the following orders:

   1. (1)

      I refuse the application for a Judge alone trial and dismiss the Notice of Motion filed by the applicant on 10 October 2024.