R v Simmons; R v Moore (No 4)

1. [1]

   Part way through a pre-trial voir dire hearing, Tony Simmons (“the accused”) and Kieran Moore (“Mr Moore”) applied for an order under s 132 of the Criminal Procedure Act 1986 (NSW) that they be tried by judge alone. The application was foreshadowed for the first time by the accused on Monday 16 February 2015 at the commencement of the voir dire concerning the admissibility of admissions or statements against interest made by each of them (T 10).

2. [2]

   The matter was raised for a second time towards the end of the eighth day of the voir dire (3 March 2015). Shortly before 1pm on Wednesday 4 March 2015, Mr Moore was granted leave to file in Court an election under s 132 along with a notice of motion and supporting affidavit. Mr Young SC, who appears for the accused, asked for time “to give my client one further opportunity to consider his position, having heard your Honour’s judgment” (T 314). This was a reference to the judgment that I delivered that morning in relation to the admissibility of admissions made by the accused to undercover police officers: R v Simmons; R v Moore (No 2) [2015] NSWSC 143 (“Simmons (No 2)”). Shortly after lunch, the accused filed in court a notice of motion and supporting affidavit.

3. [3]

   The issue was stood over until 9 March to enable the Crown to consider its position. The Crown’s position was complicated. However, the Crown did not consent to a trial by judge alone and so it is necessary to determine whether a judge alone trial is “in the interests of justice”: s 132(4). I heard argument in relation to the application on 9 and 10 March 2015. Further evidence on the application was adduced on 18 March 2015 and further submissions were received on 16 and 18 March 2015.

4. [4]

   On Tuesday 10 March 2015 I made rulings excluding statements against interest and admissions made by Mr Moore: R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (“Simmons (No 3)”). On Friday 13 March 2015 the Crown indicated that the Director had ordered no further proceedings in relation to Mr Moore. He was discharged on the indictment and his application for a judge alone trial abated. I understand that he is now to be a prosecution witness.

5. [5]

   The accused read an affidavit of his solicitor (Matthew Lorkin) affirmed 4 March 2015 and a further affidavit of Mr Lorkin affirmed 9 March 2015. Substantial portions of the second affidavit were not pressed (T 429-431). In addition to the affidavit evidence, the parties agreed that it was necessary to receive all of the evidence that had been tendered on the pre-trial voir dire: see Simmons (No 2) at [46] - [50] and Simmons (No 3) at [13].

6. [6]

   This comprises a 13 volume brief of evidence (Ex VD 1) as well as 14 separate exhibits (Ex VD 2 – VD 15). Neither party made any reference to Ex VD 2 - VD 15. The parties did not identify with any precision the parts of the 13 volume brief that are relevant to this application. When the matter was first argued, it was unclear which parts of Ex VD 1 will actually be adduced in evidence at the trial and it seemed that the accused had not consulted with the Crown to determine the evidence that the Crown intended to lead (T 425-6, 429-430, 432-434). Submissions were made in relation to parts of the evidence that the Crown Prosecutor later indicated would not be lead at the trial. Following a concession by the Crown on the final day of the first voir dire, it is known that a large amount of the listening device material considered in Simmons (No 2) will not be led at the trial: R v Simmons (No 2) at [151].

7. [7]

   In the absence of a clear understanding of the material to be led at the trial, it was not possible to make a reasoned assessment of where the “interests of justice” lay. The matter was adjourned to allow the parties time indicate what would, and what would not, be led in the trial proper.

8. [8]

   Exhibits VD 16, 17 and 18 were tendered on Wednesday 18 March and it is now tolerably clear, at least for the purpose of this application, what evidence is to be led at the trial.

9. [9]

   Sections 131 – 132A of the Criminal Procedure Act 1986 (NSW) provide:

10. [10]

    These sections replaced earlier provisions providing for a judge alone trial on 14 January 2011. Section 132 was previously in the same terms as the repealed s 16. Section 16 had, in turn, replaced s 32. The previous provisions (ss 16, 32 and 132) were in substantially the same terms as one another. The introduction of the current version of ss 132-132A made two significant changes to the law. Under the previous regime, a judge alone trial could not be ordered unless an election was made “before the date fixed for the person’s trial”. This requirement was mandatory: R v Perry (1993) 29 NSWLR 589 at 593-594. Attempts to circumvent it (by adjournment of the trial date) were frowned upon although sometimes succeeded: see R v Coles (1993) 31 NSWLR 550 at 553-554. Section 132A maintains the requirement that applications be made in a timely fashion. Applications must be made “not less than 28 days” before the trial date “except with the leave of the Court”.

11. [11]

    The second change introduced by s 132 concerns the requirement under s 32(3) that the accused could only elect for a judge alone trial if the Director of Public Prosecutions consented. This change was “introduced to remove the former veto power held by the prosecution”: R v Abrahams [2013] NSWSC 729 at [10]; New South Wales Legislative Council, Courts and Crimes Legislation Further Amendment Bill 2010, Second Reading Speech (Hansard), 24 November 201 at 28073.

12. [12]

    The parties concede that leave under s 132A is required. The Crown does not oppose the grant of leave. In spite of the Crown’s position, the question of whether leave should be granted in the present case is a live one. The application is tardy in the extreme.

13. [13]

    From the time the trial date was fixed (16 February 2015), the case was mentioned in the arraignments list on four occasions in the second half of 2014. At no stage was the presiding Judge given any indication there may be an application for a judge alone trial.

14. [14]

    On 4 July 2014, Johnson J confirmed the trial date of 16 February 2015 with a 12 week estimate. It was indicated that there would be pre-trial issues of some substance. Johnson J asked a number of questions in the course of that mention as to the logistics of the hearing and how its smooth running might be facilitated.

15. [15]

    On 5 September 2014, the matter was again before Johnson J in the arraignments list. Notices of motion had been filed by both accused concerning the objections taken to parts of the prosecution brief. Johnson J anticipated the difficulties that may arise given the length and complexity of the proposed voir dire and observed that jury panels had been organised for 16 February 2015. His Honour vacated the listing of the trial date and listed the pre-trial motions for 16 February 2015 with the trial to follow. No suggestion was made on 5 September 2014 that, depending upon the resolution of the objections that were to be raised on the voir dire, an application for trial by judge alone may follow the pre-trial hearing.

16. [16]

    The matter came before Fullerton J on 3 October 2014. Mr Stratton SC, appearing on behalf of Mr Moore, but speaking on behalf of all parties indicated that the parties “would be keen to proceed from the pre-trial applications into trial.” Her Honour confirmed the date for the pre-trial applications and enquired whether there was any possibility of using something described as “judge time” in the final months of 2014 to facilitate the smooth running of the pre-trial and trial proceedings. None of the parties were available and her Honour simply confirmed the date for the pre-trial hearing, noting that the trial would proceed after rulings on the voir dire were made. Nothing was said to suggest that the trial would be anything other than a jury trial.

17. [17]

    Finally, the matter came before Johnson J on 5 December 2014. On that date his Honour announced that I was to be the trial judge. Mr Stratton SC again said “could I confirm my understanding that at the moment the matter is set down for pre-trial hearings … with a view to the trial starting shortly thereafter?” Mr Young SC agreed with the proposition that the 12 week estimate may “get shorter but not longer” although he confirmed it was necessary to maintain the 12 week listing to be “a bit cautious”. However, he expressed the view that “it would be less than that”. His Honour asked the parties whether anything else needed to be raised. Nothing was.

18. [18]

    Arranging for the attendance of sufficient jury panels to ensure that a trial commences is a matter of some administrative and logistical difficulty. It involves summonses being sent out and significant effort on the part of the Sheriff of New South Wales. Courtrooms with appropriate facilities must be organised and scarce resources allocated accordingly. Members of the public are inconvenienced and no doubt anxious about the prospect of serving on a jury.

19. [19]

    For that reason, it is important when matters are mentioned before the arraignments judge that the parties provide a clear account of the issues anticipated. Where an application for a judge alone trial is contemplated, it is important for the list judge to know that. It may be that that application can be dealt with in the list court so that it is not a matter determined by the judge who may ultimately preside at such a trial.

20. [20]

    The purpose of s 132A(1)—and s 32(4) before it—is to avoid the appearance (or actuality) of “judge shopping”. In Perry v The Queen, Gleeson CJ said (at 594):

21. [21]

    In the second reading speech for the Bill introducing s 132A the Attorney General said:

22. [22]

    In the present case, there can be no suggestion of “judge shopping”. As I said earlier, the parties have known the identity of the trial Judge since 5 December 2014. That is a considerable time before the 28 day time limit prescribed by s 132A. Thus, it cannot be suggested here that the parties made the application as a result of discovering the identity of the judge.

23. [23]

    However, matters of appearances are not limited to the identity of the trial judge. The case has thrown up two incidents that, from the point of view of appearances, are unfortunate.

24. [24]

    On 3 March 2015, Senior Counsel for the accused indicated that he had instructions to make an application for a judge alone trial. He indicated that he would formally make the application by notice of motion the following day although he doubted that “it actually needs a couple of pieces of paper to galvanise the Crown into action in the circumstances”. On 4 March 2015, Senior Counsel had in his possession the formal documents but did not seek to file them until he had taken further instructions:

25. [25]

    This was a reference to my judgment in R v Simmons (No 2), handed down earlier in the day and in which I made certain remarks about Mr Simmons’ conduct, character and willingness to engage in criminal activity of a large variety of kinds (see for example at [142]-[149]). The appearance, if not actuality, was that Mr Simmons was basing his decision around things I had said earlier in the day. This was a perfectly sound and proper forensic exercise and an appropriate discharge of counsel professional responsibility to his client. However, as I said in the course of the argument, it was an “unedifying spectacle” from the point of view of appearances. It would not have occurred had the application for a judge alone trial been made in advance of the trial and in a timely fashion.

26. [26]

    The second incident involved the position taken by the Director of Public Prosecutions. The Crown Prosecutor has taken a fair and principled approach to the application. He acknowledges that this is an unusual case in terms both of the quantity of prejudicial material and the particular manner in which that prejudicial material affects the trial. However when the application first came to be argued on 9 March 2015, I was reserved in the voir dire judgment concerning the admissions made by Mr Moore (R v Simmons (No 3)). Asked whether the Director consented to the application for trial by judge alone, the prosecutor described it as “a rather delicate situation” and continued:

27. [27]

    The appearance of this is that the Director was seen to be deciding whether or not to consent to an application for a judge alone trial – which is to say determining its position on the “interests of justice” – based on the identity of the trial judge. I must reiterate that I am not being critical of the Crown Prosecutor when I make these remarks. He made the submissions delicately, with admirable candour and on my invitation to speak plainly. However, once again, the appearances are bad. One problem with the matter being raised in this way, although the Crown Prosecutor was clear in eschewing it, was the appearance that some pressure may be placed on the decision maker in relation to findings to be made. (I have now delivered the judgment in Simmons (No 2) and have been advised that there will be no submission made that I should be disqualified from hearing the matter.)

28. [28]

    If the application for a judge alone trial was determined in advance of the pre-trial hearing, and things were said in the course of a voir dire that prompted or justified an application for the judge to disqualify themselves, that application would be dealt with on its merits. The identity of the trial judge should play no part in the determination of, or election for, a judge alone trial. Such an approach is against the purpose of the legislation and inimical to the appearance of justice.

29. [29]

    An application for a judge alone trial should be considered from both parties point of view without any reference to the identity of the trial judge. That is so whether the trial judge is part heard in pre-trial hearings or not. If something is said in open court or in a judgment or if information comes to the attention of the parties that might create the appearance or apprehension of bias on the part of the trial judge, the application for the judge to be disqualified from hearing the case should be made then.

30. [30]

    All of this goes to emphasise the problems with making an application under s 132 at such a late stage.

31. [31]

    In my opinion, there is much to be said for the application for a judge alone trial to be made before other pre-trial issues are considered. While this might potentially give rise to applications based around decisions then made on the voir dire, it avoids the appearances to which I have made reference.

32. [32]

    The tardiness of the application militates against the grant of leave under s 132A(1). However, the question of leave must also be considered by reference to a number of other significant factors.

33. [33]

    First, as I have said, the identity of the trial judge was known since early December 2014. The purpose of the 28 day time limit is to avoid the actuality and appearance of judge shopping. That consideration has no meaningful application where the parties were aware of the identity of the trial judge for such a long time before the trial date.

34. [34]

    Second, it has been put from the bar table (and I accept) that the solicitor for Mr Simmons raised the possibility of a judge alone trial informally with the prosecution at one or more of the mentions before the arraignment Judge. While the matter should have been brought to the attention of the list Judge, I take that matter into account in considering the question of leave.

35. [35]

    Third, rightly or wrongly, Mr Young SC took the view that the application for a judge alone trial would have been premature in advance of the ruling on the voir dire. I disagree with that stance and, even if the judge hearing the voir dire determined the sequence of applications differently, notice of the possibility of the application should have been made earlier. However I accept that Senior Counsel took a different view and did so in earnest. There was no forensic advantage in hiding the possibility that he may make an application for a judge alone trial. Further, Mr Young SC advised the court of the possibility of the application on the first day of the pre-trial hearing.

36. [36]

    Fourth, as Mr Stratton SC (then appearing for Mr Moore) pointed out when I raised the question of whether there was jurisdiction to hear the application after the trial had (technically) started (cf s 130(3)(a) Criminal Procedure Act), the trial date was formally vacated by the list Judge on 5 September 2013. His Honour listed the pre-trial hearing for 16 February 2015 noting that it was expected to take “several weeks”. On 5 December 2014 the list Judge confirmed the listing of the pre-trial hearing “with the trial to proceed thereafter”. The situation is not dissimilar to that which arose in R v Coles where Wood J made the following practical observations (at 553):

37. [37]

    In view of the listing of the trial “to proceed [after]” the pre-trial hearing, any date fixed was both non-specific and “nominal” in the sense articulated by Wood J.

38. [38]

    Fifth, the Crown Prosecutor does not object to leave being granted. His position appeared to be (if I may be permitted to infer it) that the accused should not be locked out from arguing the merits of their application based on a refusal to grant leave due to the failure of their legal representatives to make the application earlier. This is a fair and correct approach.

39. [39]

    Sixth, having read the material and heard the submissions, the application is based on unusual circumstances and is clearly arguable.

40. [40]

    For those reasons, I will grant leave under s 132A of the Criminal Procedure Act.

41. [41]

    However, it should be clear to practitioners that this is a most unusual case. I expect that in most cases leave would be refused if the application is not made until after the date that the matter was set down for trial or for the hearing of pre-trial applications where the trial was to proceed thereafter.

42. [42]

    I have set out the factual background of this case in both of my judgments on the voir dire. In Simmons (No 3) I summarised the circumstances at [7] - [11]:

43. [43]

    In Simmons (No 2), I set out the nature and extent of the undercover police operation undertaken between September 2012 and 16 January 2013: at [9] – [42]. I set out the admissions that were made by the accused from [84] – [97]. I will not repeat that summary here and it is necessary for the reader to refer to those paragraphs to obtain any real understanding of the reasons that follow.

44. [44]

    In general terms, the object of the police operation was to trick the accused into believing that a number of undercover operatives [REDACTED]. The accused was encouraged to speak plainly and truthfully about crimes he had committed in the past. In particular, [REDACTED], the accused was encouraged to provide all of the circumstances surrounding the alleged murder of Mr Russell. As I said in the judgment admitting the evidence of his confessional statements, Simmons showed himself to be ready, willing and able [REDACTED]. In the lengthy recorded conversation between Simmons and the undercover police officers, Simmons admitted to being involved in a wide range of criminal offences in the past.

45. [45]

    In the recordings of 9, 15 and 16 December 2015 the accused made admissions to the murder of Mr Russell. To oversimplify what he said, he claimed that he and Mr Moore picked up Mr Russell at a location outside Bathurst, drove him to cliff-face at a place called Wallaby Rock near the hamlet of Sofala and pushed him from the cliff. He and Mr Moore then recovered the body and buried it in a mineshaft at another location near Sofala.

46. [46]

    Mr Simmons’ answer to those potentially devastating admissions will be that the confession is untrue. As I understand it, it will be suggested that he told those lies in order to big-note himself in front of people that he thought [REDACTED].

47. [47]

    The basis of the application for a judge alone trial is that, no matter what editing is done to the material, the nature of that material and the evidence that the accused will need to adduce in order to explain why he made admissions that he now says are false, is so prejudicial that no jury would be capable of bringing an impartial mind to bear on the ultimate issue for determination. That issue is the truthfulness and reliability of the admissions. While there is other evidence, confessional and circumstantial, upon which the Crown will place some reliance, the Crown acknowledges that the case will most likely rise and or fall on the question of the reliability of the substance, if not the detail, of the admissions. As best as it can be anticipated at the outset, the Crown’s position will be that even if the precise mechanism of the murder (i.e. pushing the victim off the cliff) is incorrect, the tribunal of fact may accept part or parts of the confession and that this may corroborate the other evidence supporting the case that Simmons is responsible for the disappearance and murder of Mr Russell. For example, there is evidence from an independent source that might establish that the location where Mr Russell was last seen alive is not far from the location where the accused admitted that he picked up Mr Russell.

48. [48]

    The accused submits that no direction could be formulated which would be sufficient to ensure that the jury does not act on the basis of the prejudice occasioned by the introduction of such a large body of evidence showing that the accused was a willing participant in a diverse array of serious criminal activity.

49. [49]

    The Director of Public Prosecutions does not consent to the order for a trial by judge alone. However, the experienced Crown Prosecutor who appears at the trial acknowledges the force of the arguments put by the accused. In particular, he concedes that the amount of prejudicial material is significant and unusual. He acknowledges that there will be real difficulties for both parties in adducing the evidence in such a way that the trial does not run the risk of miscarriage and discharge of the jury.

50. [50]

    However, the Crown Prosecutor took the role of “contradictor”. In doing so he relied upon the large body of authority in the New South Wales Court of Criminal Appeal and in the High Court to the effect that juries are generally capable of obeying directions and that the system is predicated upon the assumption that they do so.

51. [51]

    The Crown referred to a number of notorious cases where juries were entrusted to determine the issues in spite of the fact that the evidence necessarily showed the accused to be members of groups that are unpopular in the general community from which any jury is drawn. For example, he referred to the trial of Hawi and others involving the murder of a man at Sydney airport (the appeal is Hawi v R [2014] NSWCCA 83). That case was surrounded by great publicity of a prejudicial kind that necessarily involved the jury knowing that the members of both the groups of men who participated in a serious affray in a public aircraft terminal were members of criminal groups (outlaw motorcycle gangs). The Crown noted that the jury in that case was capable of distinguishing between the accused and a number were acquitted. He referred back to cases such as the trial following the Milperra Massacre, another trial involving so called outlaw motorcycle gangs. Again, the jury heard a substantial amount of prejudicial evidence and yet were capable of obeying directions to act in accordance with their oaths and to put aside matters of emotion and prejudice: R v Annakin (1987) 17 NSWLR 202; R v White (1988) 17 NSWLR 195.

52. [52]

    A less felicitous example raised by the Crown concerned the lengthy terrorist trial which proceeded before Whealy J in 2010 and was subject to a recent decision of the Court of Criminal Appeal: Elomar, Hasan, Cheikho and Jamal v R [2014] NSWCCA 303. That was an unfortunate reference because, as far as I am aware, none of the accused in the trial were acquitted and so the proposition that the jury differentiated between the cases and was not influenced by prejudice cannot be tested. In any event, it was a case tried under Commonwealth law and trial by judge alone is not available under s 80 of the Constitution: Brown v R [1986] HCA 11; 160 CLR 171.

53. [53]

    Otherwise, the Crown Prosecutor’s point is well made. I accept that many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices.

54. [54]

    I have set out the terms of the statute authorising a “trial by judge order”. The decision turns on a consideration of the question of whether it is in the “interests of justice” to make a trial by judge order. Obviously enough, the interests of justice is an expression of very wide import and may raise an extremely diverse array of considerations.

No presumption in favour of trial by jury

1. [55]

   The judgment of McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 represents the most comprehensive analysis of the current provisions in New South Wales. Most of the principles to be derived from the judgment were helpfully summarised by Bellew J in R v Villalon [2013] NSWSC 1516 at [20].

2. [56]

   In R v Belghar the Chief Judge at Common Law made reference to the analysis of the benefits of trial by jury undertaken by Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at [90], [93]-[97]. Heydon J referred to Lord Devlin’s famous description of the jury as “the lamp that shows that freedom lives” and set out the five advantages that Lord Devlin identified in his Hamlyn Lectures collected in Trial by Jury (rev ed) (1966).

3. [57]

   McClellan CJ at CL at [96] rejected the proposition that s 131 “has the effect of creating a ‘presumption’ that the trial should be with a jury, thereby casting a burden of proof on an accused person”. His Honour acknowledged that there was an evidentiary onus but there is no presumption in favour of a jury trial and no legal onus on an accused person who seeks an order under s 132.

No right to a trial by judge alone but the accused’s election is to be considered

1. [58]

   In R v Stanley [2013] NSWCCA 124 Barr AJ held that “an accused cannot have a trial by judge alone for the asking”. However, the Queensland authority relied upon in support of that proposition appeared to take the view that the Criminal Code 1899 (Qld) was not “neutral” and that trials by judge alone were “exceptional”: R v Fardon [2010] QCA 317 at [81]. It is difficult to reconcile that position with the judgment of McClellan CJ at CL in R v Belghar. His Honour at [96] referred to the comments in R v Fardon as obiter and rejected the proposition that the New South Wales statute required “weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury”.

2. [59]

   However, it must be correct that the accused has no right to demand a trial by judge alone.

3. [60]

   On the other hand, the fact that the accused has decided on legal advice to relinquish his right to a jury trial is a matter to be weighed in determining where the interest of justice lie. Similarly, any subjective apprehension in the accused that he will not receive a fair trial in the hands of the jury is a relevant consideration: R v Belghar at [99], Arthurs v Western Australia [2007] WASC 182 at [79]. In R v Stanley it was held at [42] that there must be more than a “mere stated apprehension without supporting evidence”.

Community standards and intention

1. [61]

   Sub-section (5) provides some non-exhaustive guidance as to a particular circumstance where the court may decide that it is not in the interests of justice to make a trial by judge order. That circumstance is where the case raises the “application of objective community standards, including an issue of reasonableness, negligence, indecency, obscenity or dangerousness.” None of the specific matters referred to in the section will be an issue in the current trial. Nor is it anticipated that the case will give rise to any other question concerning or requiring the application of objective community standards. The questions that will arise in the present case are first whether the prosecution can establish beyond reasonable doubt that Mr Russell is deceased. That issue is starkly raised in circumstances where his remains have never been found. The Crown will rely on the fact that he has not been seen or heard of since 2 June 2009 and his disappearance is unexplained. I anticipate that Mr Russell’s poor health will be relied upon by the Crown to submit that he was unlikely to simply leave the Bathurst area and take up residence elsewhere. The Crown will also rely on the admissions made by the accused to various people including the undercover operatives. The second issue will be whether the admissions to the undercover operatives are reliable in the sense that they are true. I gather that the issue in relation to other alleged confessional statements will be whether those statements were in fact made. Those are questions of fact and do not attract the application of community standards.

2. [62]

   In spite of the fact that the accused disavows the issue on this application, there is some possibility that the question of intention may arise. Obviously, if it is accepted that the accused pushed the deceased off a cliff (the confession in the course of the undercover operation) the issue of intention will scarcely be arguable. There is some evidence in Ex VD 1 that the accused made admissions to bashing Mr Russell. If those admissions are accepted, or if the Crown relies on that alternative version of the admissions, it may be that the tribunal of fact would be called upon to consider whether an intention to inflict really serious injury or to kill has been established.

3. [63]

   There is some controversy in the cases as to whether the question of intention is a matter which raises objective community standards: see, for example, AK v Western Australia [2008] HCA 8 at [95] (Heydon J), R v Stanley [2013] NSWCCA 124 at [55]-[58] (Barr AJ, Macfarlan JA and Campbell J agreeing); R v Dean [2013] NSWSC 661 at [58] (Latham J), R v King [2013] NSWSC 448 at [52] (Bellew J), R v Abrahams [2013] NSWSC 729 at [73]-[77] (Harrison J). Both Bellew J in R v King (at [52]) and Harrison J in R v Abrahams (at [76]) referred to R v Belghar at [100] and noted that McClellan CJ at CL at [90] implicitly accepted that the question of intention did not raise the application of community standards, at least in the circumstances of that case.

4. [64]

   Harrison J considered the controversy in R v Abrahams and said at [73]-[77]:

5. [65]

   I agree with those observations, particularly those in paragraph [75]. There is a qualitative difference between the application of community standards to questions such as whether an act is obscene, indecent, reasonable or negligent and a factual inquiry as to whether a particular accused formed the necessary intention to constitute a specified criminal offence. Further, if the Parliament was of the view that the issue of intention was one that involved the application of community standards, it would have been very easy to include that issue within the non-exhaustive list of matters identified in sub-s 132(5).

6. [66]

   Neither counsel anticipates that the issue of intention will loom large in the trial. The real issue in the trial will be the whether Mr Russell was killed and, if so, who killed him. The accused says that the issue of intention is unlikely to arise in any meaningful way. Mr Young says that no submission will be made in address that the jury (or Judge sitting alone) might find the accused guilty of manslaughter on the basis that he did not have an intention to kill or inflict grievous bodily harm. The Crown Prosecutor expressed doubts that the issue will arise and it is not a matter upon which the Crown relies in opposing a trial by judge order.

Efficiency and the length of the trial

1. [67]

   In R v Markou [2011] NSWDC 25, Judge Berman SC noted that judge alone trials tend to be quicker and more efficient. His Honour noted:

2. [68]

   In R v Belghar, McClellan CJ at CL at [110] referred to these observations and similar comments in other cases. He accepted that such efficiencies and the length of the trial may form “part of the mix of issues” to be considered in a particular case but went on at [111]:

3. [69]

   An example of a case where the length of the trial was a significant part of a consideration of the “interests of justice” was R v Gittany [2013] NSWSC 1503. In that case, McCallum J accepted counsel’s estimates that the trial would have been significantly longer if conducted with a jury. The evidence was that the accused had insufficient funds to privately engage his legal team for the longer jury trial. An adjournment to allow a legal aid application to be pursued would have resulted in the unavailability of an important prosecution witness. In those circumstances, her Honour accepted that the length of the trial was a critical factor in determining whether it was in the interests of justice to make a trial by judge order.

The duty of a judge to provide reasons

1. [70]

   Another issue discussed in R v Belghar was the advantage of transparency inherent in the requirement that a Judge give reasons for the verdict. This is to be contrasted with the jury which is “as inscrutable as the Sphynx”: Ward v James [1966] 1 QB 273 at 301 (CA), Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 365. McClellan CJ at CL said at [112]:

Complex expert evidence

1. [71]

   Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]. In Kingswell v R [1985] HCA 72; 159 CLR 264 Deane J said at 302-303:

2. [72]

   Further, it may often be in the interests of justice for the reasoning process of the tribunal of fact to be exposed in cases involving an assessment of competing and complicated expert evidence: Arthurs v Western Australia at [90].

Credibility issues

1. [73]

   Lord Devlin was of the firm opinion that the jury was the most appropriate tribunal to determine issues of credibility:

2. [74]

   In Doney v The Queen [1990] HCA 51; 171 CLR 207 the High Court referred (at 214) to:

3. [75]

   However, it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are central to a trial, that is a factor that militates strongly in favour of a jury trial.

4. [76]

   In R v Belghar, McClellan CJ at CL referred to Lord Devlin’s statements but did not adopt them in the context of his analysis of s 132.

5. [77]

   In Coates v Western Australia [2009] WASCA 142 at [9]-[12] Owen JA said:

6. [78]

   Those observations were made after the trial Judge had referred to the passage from Doney v The Queen set out above at [74] and went on:

7. [79]

   Buss JA (with whom Martin CJ agreed) said at [118]:

8. [80]

   In R v Farrow [2014] NSWSC 1781 Rothman J made a trial by judge order in a case where the sole issue was mental illness. There was a conflict of expert opinion. Central to that conflict was the question of whether the accused was “genuine in his statement of symptoms”. Rothman J acknowledged (at [37]) that this was a matter “invariably” considered by juries and not a matter that “peculiarly, or even preferably, should be determined by the trial judge.” In spite of that fact, and the fact that the issues “may require the application of objective community standards”, his Honour was persuaded that it was in the interests of justice for the matter to be determined by judge alone.

9. [81]

   There may be cases where particular issues of credibility mean that the interests of justice favour a trial by jury. In R v Tasich [2012] NSWDC 96 Knox DCJ expressed the opinion that where there were attacks on the credibility of public officials and members of parliament “it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury.”

10. [82]

    I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis.

Prejudicial material

1. [83]

   Jodie O’Leary suggests that the most common reason for seeking a judge alone trial is a belief in the accused “that his or her trial might otherwise be prejudiced by previous media publicity or by evidence which the jury might find revolting”: Jodie O’Leary, “Twelve angry peers or one angry judge: An analysis of judge lone trials in Australia” (2011) 35(3) Criminal Law Journal 154. O’Leary considered cases across Australia, particular in Western Australia, Queensland and New South Wales.

2. [84]

   There are a number of cases in New South Wales where applications for trial by judge alone have been based on prejudice arising from material contained in the evidence of the case itself, from the media publicity surrounding the proceedings or from the risk that a jury may interrogate the internet. Overwhelmingly, it has held that the prejudice identified in the application is capable of being overcome by direction to the jury: see, for example, R v Abrahams at [54]-[60], R v Dean at [65], R v King at [60]-[65]; R v McKnight [2014] NSWSC 398 at [31] (Campbell J).

3. [85]

   In R v King, Bellew J cited some of the more influential statements to the effect that a jury is capable of following directions imploring them to disregard matters of emotion and prejudice:

4. [86]

   There are many statements to similar effect. It is assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J).

5. [87]

   Academic writers have questioned this “near heroic belief that jury directions can cure negative impressions formed about an accused” and suggested that “there is no evidence to suggest that this is anything other than judicial wishful thinking”: see Mirko Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 at 8. Bagaric refers to a “body of work that suggest that once people form an adverse view they cannot simply discard their preconceptions upon command” (see footnote 4 on p 8) and asserts that “the overwhelming trend of results is that notorious accused are convicted”.

6. [88]

   In spite of the persuasiveness of Bagaric’s essay, the force of the authorities are such that I must proceed on the basis that jurors are capable of, and do, obey directions, including directions requiring them to disregard prejudicial publicity surrounding a trial and prejudicial evidence adduced in the course of the trial. However, this axiom can be taken only so far. The discretions residing in a trial judge to exclude prejudicial evidence, to suppress evidence during the currency of a trial, to discharge a jury without verdict if inadmissible evidence comes before it and to order separate trials of co-accused and severance of multiple counts are all examples of legal remedies which would not exist if it were universally the case that juries were capable of obeying directions and disregarding prejudicial material. It is a question of degree and turns on a thorough analysis of both the nature and extent of the prejudicial material and the method by which it will be introduced into the trial.

7. [89]

   This was recognised by Judge Woods QC in R v GSR (3) [2011] NSWDC 17. That case is best identified by reference to the nickname given to the accused by various media outlets. The accused became widely known as the “Butcher of Bega”. He had been tried and convicted in relation to an offence of inflicting grievous bodily harm with intent. The trial attracted an enormous amount of media publicity. He was then called for trial in relation to a number of offences of indecent assault. Woods QC DCJ held that the publicity was so great and so prejudicial that a fair trial before a jury could not be held at that time. Accordingly, his Honour made an order under s 132 of the Criminal Procedure Act and the case proceeded by judge alone trial. R v GSR (No 3) is an example of an exception to both the body of case law that the system is predicated on the fact that juries obey the directions that they are given and also the general proposition that juries are capable of disregarding prejudicial material.

8. [90]

   Similarly, in Arthurs v Western Australia, Martin CJ was persuaded that he should order a trial by judge alone largely as a consequence of pre-trial publicity that his Honour described at [86] as “extensive, continuous and in some respects extraordinary”. The Chief Justice had earlier found at [31] that some of the publicity arguably constituted a contempt of court. In concluding that the interests of justice favoured a trial by judge without a jury his Honour said at [87]-[92]:

9. [91]

   O’Leary noted (at p 22) that the cases reviewed for her paper predominantly concerned issues relating to prejudice arising from publicity surrounding the case. She considered that the distinction in Arthurs v Western Australia may have been that much of the prejudicial material was evidence to be led at the trial. Such material often concerns the horrific nature of the offence itself. As Latham J’s judgment in R v Dean shows, it is generally accepted (although it cannot universally be true) that prejudice of that kind can be cured by direction. Dean was charged with 11 counts of murder arising from a fire he set at a nursing home. Latham J said at [65]:

10. [92]

    The application in the present case is not based on prejudicial publicity or on the horrific nature of the evidence to be adduced in relation to the alleged murder itself. Rather, the application is based on the prejudice that will be occasioned by the introduction of evidence that the accused [REDACTED]. In that sense, the case is rather unusual. The case of Donai v R [2011] NSWCCA 173, to which reference was made in Simmons (No 2) at [152], provided an example where similar evidence (led without objection) caused the trial to miscarry and a jury verdict to be set aside.

Prejudicial material to be adduced at trial

1. [93]

   As the judgment in R v Simmons; R v Moore (No 2) shows, there is a vast amount of material in the brief relating to Mr Simmons which is of a highly prejudicial kind. This was summarised in my earlier judgment in dot point form in paragraph [142] – [149]:

2. [94]

   However in the course of submissions, the Crown Prosecutor indicated that he did not need to rely upon a large number of the earlier conversations recorded by listening device between September 2012 and early January 2013. The critical material was that contained in the conversations of 9 January 2013, and 15 – 16 January 2013.

3. [95]

   The Crown will not press for or seek to tender that earlier material. Presumably the facts of the police operation and its general nature will be given in oral testimony by the relevant offices but the highly prejudicial listening device recordings will not be played and not all of the details of the [REDACTED] criminal offences in which the accused was encouraged to participate would be placed before the jury.

4. [96]

   The remaining material, which is to say the recordings on 9, 15 and 16 January 2013, still contain evidence of a highly prejudicial nature. It shows the accused’s willingness to engage in [REDACTED]. It was by introducing that “scenario” that the police were able, after a lengthy and sophisticated undercover investigation, to extract the confession or confessions that they did. That material cannot be extricated from the factual matrix to be played out before the jury.

5. [97]

   Further, within the conversations themselves there are a number of occasions when the accused refers to other crimes that he may have been involved in as well as other material that shows him in a very bad light. While the Crown does not press for the tender of all of that material, it is inevitable that some of it will come out in the trial. It is likely that the accused would seek to rely on the things he said in support of his defence that he was big-noting himself in front of the people [REDACTED].

6. [98]

   In Simmons (No 2) I referred in general terms to the nature and extent of the prejudicial material that would remain even taking into account the Crown’s agreement not to adduce all of the earlier recordings and assuming a large amount of editing of the evidence:

7. [99]

   Simmons (No 2) included a direction that the parties liaise in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That was a substantial undertaking but on Wednesday 18 March 2015 the parties advised me of the prejudicial material that they agree needs to be led to enable (i) the Crown to put the evidence of the crucial admissions fairly and comprehensibly before the jury and (ii) the defence to mount its contention that the admissions are unreliable.

8. [100]

   Ex VD 17 is a list of the material to be edited from the listening device recordings of 9, 15 and 16 January 2013. Ex VD 18 is a summary of the prejudicial material that, by agreement between the parties, will remain. It includes reference to [REDACTED]. It also includes reference to offences previously committed by the accused including drug supply. Perhaps most significantly for present purposes, it includes reference to the “scenario” [REDACTED]: see Simmons (No 2) at [32]-[37]. The accused was active in this enterprise. [REDACTED].

9. [101]

   Ex VD 16 is a schedule of material from the recordings between September 2012 and early January 2013 that the accused may seek to elicit in order to put into a realistic and true context his case that his admissions were boasts [REDACTED]. The scenarios are set out in Simmons (No 2) and encompass a wide range of criminal and anti-social behaviour.

Affidavit evidence

1. [102]

   The accused relies on two affidavits of his solicitor. The first affidavit refers to the fact that the Crown will rely on evidence of an earlier assault by the accused on Mr Russell as “motive or relationship evidence”. It also says that many of the civilian witnesses know the accused through their mutual involvement in criminal and drug related activity. It is asserted that the nature of these relationships “involves the danger of inadvertent disclosure of criminal behaviour during their evidence”. The affidavit annexes the accused’s election for a judge alone trial. The election was made after receiving the advice of his solicitor and Senior Counsel. The affidavit also refers to body of evidence to which I have already referred.

2. [103]

   The second affidavit identifies further areas of prejudice and lists a number of witnesses known to the accused through criminal connections, drug related activity or as a result of meeting the accused in gaol. Reliance on much of this material was abandoned in the course of argument when it became clear that the Crown did not propose to rely on the material or would not adduce any evidence of criminal connection between the accused and the witnesses.

3. [104]

   I accept that the material in the affidavits provides some basis for concerns that inadmissible and prejudicial evidence may inadvertently be adduced in the trial. However, of itself, this is a matter that can be dealt with by caution on the part of the advocates and, if necessary, clear direction to the jury.

The Crown Prosecutor’s position

1. [105]

   The Crown Prosecutor is instructed to oppose the application for judge alone trial. However, in so doing he acknowledges “I can fairly say there are merits in the application … it’s not just a wish-list type of application” (T 389). Later he indicated that “given the state of the [DPP] Guidelines, I’m not in a position to consent” but went on “I concede there a significantly good reasons for the application being made by both accused” (T 416).

2. [106]

   As I have set out above, the Crown went on to make cogent submissions based around a jury’s ability to follow directions that require them to put aside matters of prejudice and emotion.

Relevant considerations

1. [107]

   I turn then to summarise my reasoning and application of the principles of law to the facts of the present case. In doing so, I will repeat in summary form some of the principles of law that guide me and to which I have already made reference.

2. [108]

   There is no presumption in favour of a jury trial and there is no onus on the accused to establish that it is in the interests of justice for the trial to be conducted by judge alone.

3. [109]

   This is not a case where the application of community standards will be a factor. While a question of intention may arise and while some of the authorities suggest that intention might involve the application of such standards, I am not persuaded by those authorities and accept the submission of counsel that this is not a case where intention is the central issue.

4. [110]

   Questions of credibility of the witnesses will inevitably arise and the Crown has identified a number of witnesses whose credibility will be subject to dispute. However, for the reasons I have articulated, I am of the opinion that this is a neutral consideration.

5. [111]

   This is not a case involving complex expert opinion evidence or where the Judge’s duty to give reasons is of particular significance. If a jury were to return a verdict of guilty, it would clearly be on the basis that it accepted relevant parts of the accused admissions. The accused would not be benefited or enlightened by a statement of reasons.

6. [112]

   I do not consider the length of the trial to be a matter of any significance in the present case. I accept that a judge alone trial is likely to be somewhat more efficient but, judging from the length of the voir dire, I doubt that the savings of court time would be particularly large. In any event, with one reservation, I do not consider such matters constitute a relevant consideration in the circumstances of this case. The reservation is that there is a real risk that if the jury is empanelled there will be repeated applications for discharge of the jury as the material comes out. Some of those applications are likely to have some merit. If acceded to, there will be an increase in court time, expense and inconvenience to witnesses. If refused, it may give rise to grounds of appeal.

7. [113]

   The accused’s election to be tried by judge alone is a matter worthy of some weight. I infer from his election that he is concerned that the nature of the prejudicial material may impact on him receiving a fair trial in front of a jury. The affidavit evidence satisfies me that he has sought and received advice from an Australian legal practitioner as to the effect of a “trial by judge order”: s 132(6).

8. [114]

   I commence my consideration of the question of the prejudicial material by acknowledging the large body of authority supporting the proposition that juries will obey the directions of the trial judge and are capable of putting to one side material giving rise to prejudice.

9. [115]

   I also acknowledge the fair and reasonable stance adopted by the Crown Prosecutor. While the Crown did not have instructions to consent to a judge alone trial, he candidly acknowledged the difficulties that both parties would encounter in conducting the trial in the light of the nature and extent of the prejudicial material lurking in the brief.

10. [116]

    I have not been taken to any case where the prejudice is as extensive as it appears to be in this case. Further, apart from the sheer volume of prejudicial material, the real vice in the present case is the way in which the evidence will be introduced, the fact that it raises both character and tendency in circumstances where the Crown places no reliance on it for those purposes and, perhaps most potently, the fact that the accused’s counsel may need to introduce certain parts of the material in order properly to argue his client’s defence. As I have said, that defence is no doubt that [REDACTED]. That is a most unpalatable defence and one that will be entirely foreign to most members of the jury. I find it difficult to see how the accused can fairly conduct that defence and expect a jury of right minded people from the community to put aside his admitted criminal propensity in determining in a cold, scientific, dispassionate and judicial manner whether the Crown has proved its case of murder beyond a reasonable doubt.

11. [117]

    I am unable to envisage any direction to the jury that will alleviate the prejudice that will be aroused by the material that it is anticipated will be led in this trial. In Makarov v R (No 3) [2008] NSWCCA 293 a large body of prejudicial evidence was tendered as “context” or “relationship” evidence. The Court (Bell JA, Johnson and McCallum JJ) held that the careful and thorough directions given in that case were “not capable of overcoming the prejudice that arose as a result of the joint trial and the admission of the appellant’s other sexual misconduct”. While the factual and legal matrix is entirely different, the cases share two common threads. The first is the sheer volume of prejudicial material that will be introduced into the trial and the fact that the material is not introduced in direct proof of guilt but for an ancillary purpose. The second is that direction to the jury is unlikely to overcome the prejudice that will result in the admission of such a large body of evidence.

12. [118]

    Taking all of those matters into account, I have reached the conclusion that it is in the interests of justice that the accused be tried by judge alone.

13. [119]

    I make the following orders:

    1. (1)

       Leave granted under s 132A Criminal Procedure Act 1986 (NSW).

    2. (2)

       Pursuant to s 132 Criminal Procedure Act 1986 (NSW) I order that the accused is to be tried by judge sitting alone without a jury.

    3. (3)

       The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission.