R v XY

1. [1]

   The accused stood trial before Yehia J and a jury on 30 September 2024 on two counts of sexually touching a person over the age of ten years and under 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW).

2. [2]

   On 3 October 2024 Yehia J discharged the jury because they were unable to agree on a verdict in respect of each of the counts.

3. [3]

   The matter has been fixed for a further trial in Bega to commence on 2 December 2024 with a one week estimate.

4. [4]

   An application has now been made by the accused for leave under s 132A of the Criminal Procedure Act 1986 (NSW) to make a judge alone application within 28 days before the date fixed for the trial, and pursuant to s 132(4) of the Criminal Procedure Act for the accused to be tried by judge alone. The application is supported by an affidavit of the accused’s solicitor, Adam Sumbak, sworn 18 November 2024. The only two matters of substance in that affidavit are a statement that the accused’s solicitors are currently appearing for the accused on a pro bono basis, and that the Crown served a report of Dr Sally McSwiggan on 6 November 2024.

The complainant’s intellectual disability

1. [5]

   The complainant is the daughter of the accused. The complainant was born on 9 December 2006. They live at Batemans Bay in a home with the complainant’s mother and two brothers. The sexual touching is alleged to have occurred on two occasions between 9 December 2021 and 8 September 2022. The allegation in the Crown case statement is that the accused touched the complainant on her chest area over a dress she was wearing and on her vagina under the dress and inside her underwear.

2. [6]

   The Crown Case Statement disclosed that the complainant had a moderate intellectual disability and receives daily learning support at school. She has limited expressive language and difficulty with written comprehension. She was assessed by her learning support worker as working at the academic level of a seven year old child.

3. [7]

   Prior to the trial which resulted in the hung jury, a court communication report had been provided to the Court by a speech pathologist, Lenore Scali, dated 14 September 2024. That report highlighted the intellectual difficulties suffered by the complainant. Ms Scali did not give evidence at the trial. Evidence was given by the Head Teacher of Special Education at the complainant’s school that the complainant was not coping in the mainstream classes at school; that language was too quick, and that the content was too hard for her. The teacher said that the complainant did attend mainstream classes in art, food technology and hospitality, but she has a teacher’s aide with her in those classes. The teacher said that the complainant suffered from hygiene issues.

4. [8]

   The jury was told in the Crown opening that the complainant had an intellectual difficulty. The jury saw the complainant’s interviews with the police where, when asked, she said she did not know what the truth was or what a lie was.

5. [9]

   By reason of what appeared in Ms Scali’s report concerning the approach to asking questions of the complainant, defence counsel was somewhat restricted in his ability to challenge the complainant’s evidence.

Dr McSwiggan’s report

1. [10]

   Dr McSwiggan interviewed the complainant in the presence of her mother who did not contribute to the evaluation. Dr McSwiggan administered the Wechsler Adult Intelligence Scale- Fourth Edition (WAIS-IV) selected sub-tests; Wechsler Memory Scales – Fourth Edition. The WAIS-IV comprises core sub-tests which provide composite scores that represent intellectual functioning in specified cognitive areas (verbal comprehension comprised of three sub-tests; perceptual reasoning comprised of three sub-tests; working memory comprised of two sub-tests).

2. [11]

   Dr McSwiggan assessed the complainant’s general intellectual ability as being in the extremely low range, falling at the 0.4 percentile compared to age matched peers. Her verbal comprehension index score was within the extremely low range and fell at the first percentile, the working memory index score was within the extremely low range and fell at the 0.4 percentile, and her perceptual reasoning index was within the extremely low range and fell at the first percentile.

3. [12]

   Dr McSwiggan reviewed a number of documents including a letter from a paediatric registrar dated 5 December 2012, NSW Education records, a speech pathology report dated June 2016 and Ms Scali’s court communication report dated 14 September 2024.

4. [13]

   Dr McSwiggan diagnosed the complainant as suffering from intellectual development disorder (mild on the cusp of moderate). She said that the complainant operates intellectually in the lowest percentile of her peer group, below 99% of her peers.

5. [14]

   Dr McSwiggan was asked, what was the impact, if any, of that disability on her ability to accurately recount to people experiences that have happened to her? Dr McSwiggan answered:

6. [15]

   Dr McSwiggan was then asked, what was the impact, if any, of that disability on her ability to accurately recall and report detail of past events over time? Dr McSwiggan answered:

Submissions

1. [16]

   The accused submitted that the major issues in the trial are the Crown’s reliance on the unsworn evidence of the complainant, (unsworn as she cannot understand truth or lies), on whether and in what manner, she was sexually touched. The accused submitted that at the first trial there were significant issues with concerns expressed by the defence that the questioning of the complainant was leading, said to be in the presence of adults that she felt compelled to agree with, and replete with variations as to acts, uncertainty over dates and times, and completed in a manner in which she was displaying marked cognitive difficulties, particularly delay in responding.

2. [17]

   The accused submitted further that cross-examination was severely curtailed due to the incapacity of the complainant to understand concepts in questions that contained a negative. That problem, despite directions, it was submitted, could lead to misapprehensions by a jury of the forcefulness of the accused’s defence and the deficiencies in the complainant’s account.

3. [18]

   The accused submitted that the report of Dr McSwiggan was a very intellectually challenging expert report. It delves into complex analytical systems that the human brain uses for functions such as declarative memory, memory processing and the encoding of new auditory verbal information.

4. [19]

   The accused focused particularly on the highlighted section in para 45 of the report, first, to submit that this would be difficult for the jury to understand; secondly, to express concern about how it would affect the jury’s perception of the complainant’s evidence; and thirdly, how this evidence relating to the complainant’s capacity to form or encode memory sits with the directions ordinarily given concerning the variability in accounts of the incidents recounted by the complainant. The accused submitted that it is difficult to envisage how such material will be presented to the jury in a manner that would make it comprehensible to the issues in the trial.

5. [20]

   The accused submitted that the medical evidence in the trial is so complex and has such material ramifications for both the Crown and the accused, that it ought to be dealt with by a judge alone trial. It could be dealt with more efficiently and effectively by the warning the judge can give to herself about the reception and limitations of the evidence.

6. [21]

   The accused submitted that at the earlier trial, directions were given in relation to the use of complaint evidence as truth of the facts asserted, directions limiting the use of evidence under s 136 of the Evidence Act 1995 (NSW), warnings under s 165A of the Evidence Act and a Liberato direction. The accused submitted that the medical evidence adds to the complexity of directions, particularly how such material is to be taken into account on questions of leading and reliability.

7. [22]

   The accused submitted that a judge alone trial would permit the public to have confidence that all relevant material was taken into account, and that sympathy, which would be likely in a trial such as this, was not influential in the fact finding analysis. Further, the complex medical evidence needed to be evaluated, and a judge alone trial could properly accommodate that by a reasoned decision.

8. [23]

   The accused submitted that there were no community standards that required a jury. The issue is whether the accused touched the areas alleged, which were clearly breast and genitals.

9. [24]

   The accused submitted that, as this is a re-trial, there is no guarantee that the new jury would be able to reach a verdict, whereas a judge alone trial would guarantee resolution of the matter. The accused submitted that both he and the complainant have an interest in the resolution of the proceedings. He pointed out that by the start of the new trial, the accused will have been on bail since 9 September 2022, a period of almost 2 years and 3 months.

10. [25]

    The Crown submitted that the issues raised by the accused do not support a conclusion that a trial by judge alone is in the interests of justice.

11. [26]

    In relation to the report from the neuropsychologist, the Crown indicated that it did not propose to lead all of the evidence in that report. Rather, it proposed to lead limited evidence by agreed fact or limited oral evidence of the nature of the complainant’s impairment. The Crown submitted that the nature of the evidence is not complex and could readily be explained to a jury.

12. [27]

    The Crown submitted that the central issue in the trial is the consistency, credibility and reliability of the complainant’s account of the offences. The Crown submitted that it is not a case where there are matters that might persuade to a jury to act on emotion or sympathy rather than reason, and the matter is well within the capacity of the jury to determine.

13. [28]

    The Crown submitted that the directions given in the earlier trial were not onerous or difficult for a jury to comprehend. The Crown pointed to the fact that the jury in the earlier trial sought no clarification of the legal directions.

14. [29]

    The Crown submitted, as to the question of finality, that it cannot be assumed that a second jury will be divided in the same way as the first jury was. The Crown pointed to statistics showing hung verdicts account only 1.9% of trials in the District Court.

Legal principles

1. [30]

   Section 132 of the Criminal Procedure Act relevantly provides:

2. [31]

   Section 132A relevantly provides:

3. [32]

   In R v Dawson [2022] NSWSC 552, Beech-Jones CJ at CL said:

4. [33]

   In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1, McClellan CJ at CL said at [112]:

5. [34]

   In R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120, Hamill J said:

6. [35]

   In R v Niguidula [2023] NSWSC 290, Wilson J said:

The application under s 132A

1. [36]

   The Crown does not oppose leave being granted. Nevertheless, it is for the Court to determine if leave should be given.

2. [37]

   In Alameddine v R [2022] NSWCCA 219, the Court of Criminal Appeal (Beech-Jones CJ at CL, Hamill and N Adams JJ) said this in relation to the time for an application under s 132 and the concept of judge shopping:

3. [38]

   The present matter falls within the category of cases discussed in Dawson and Simmons (No 4). The identity of the trial judge for the retrial has been known to the parties since 11 October 2024 when the Criminal List Judge, Hamill J, fixed the matter for retrial before Yehia J. Further, it seems tolerably clear that the occasion for the making of the application under s 132A was the service by the Crown of the report of Dr McSwiggan on 6 November 2024. In my opinion, the evidence is sufficient to address the “appearance” of judge shopping by virtue of the late application. Leave should be granted under s 132A(1).

Should a judge alone trial be ordered?

1. [39]

   Since the accused stood trial on 30 September 2024 only two things have changed. The first is that the jury in the first trial was hung. The second is that the report of Dr McSwiggan has been served. Apart from the accused’s submission that a judge alone trial would bring about finality, whereas a further jury trial might also result in a hung jury, the accused’s submissions derived from the service of Dr McSwiggan’s report.

2. [40]

   The submissions rely on what is said to be the complexity of the report and how that will affect the trial in a number or respects. First, it is said that the report is so complex that it would be difficult for a jury to understand it. Secondly, the complexity of the report adds to the complexity of the directions the trial judge would need to give to the jury. Thirdly, the public would have confidence that all relevant material in the report is taken into account by a reasoned decision of a judge, rather than a verdict only from a jury.

3. [41]

   I do not agree that what is contained in the report is of any particular complexity in the assessment being made, in the report of the tests administered, in the diagnosis of the psychologist, and in the psychologist’s explanation of memory. The report does not significantly differ from reports prepared by psychiatrists and psychologists that result in those persons giving evidence before a jury in criminal cases, particularly, for example, where some form of mental impairment is relied on as a defence: for recent examples see R v White [2022] NSWSC 1060; R v Mapp [2024] NSWSC 1267.

4. [42]

   Further, pathologists frequently give evidence in murder and manslaughter cases where it is necessary to explain to a jury the anatomical cause of death. Evidence in all of these types of cases is given in a way that avoids jargon or technical terms that would not be readily understandable to a jury. There is no reason to think that the position the present case would not be the same. In any event, the Crown has indicated that not all of the report is to be relied upon, but that limited oral evidence or agreed facts would be put before the jury.

5. [43]

   It is difficult to see how reliance on evidence from Dr McSwiggan would result in additional complex directions to the jury. In the ordinary course, the trial judge would simply summarise Dr McSwiggan’s evidence, if that was thought appropriate, and any submissions made by the parties in reliance upon it. Some of the accused’s submissions seemed to be made on the assumption that the trial judge would need to explain to the jury how they should apply the learning in the report to the evidence the complainant gave. That is not the role of the judge. It is for the parties to address the jury on how it should use the evidence of Dr McSwiggan.

6. [44]

   In the same way, it is difficult to see how any issue of public confidence arises as a result of any evidence that Dr McSwiggan would give. The submission seems to be dependent on a finding that the medical evidence is complex and would need to be dealt with in detail by any judge conducting a judge alone trial. As I have indicated, I do not consider that the evidence is unduly complex.

7. [45]

   The fact that a judge alone trial would bring finality where an earlier trial resulted in a hung jury is not a sufficient reason for finding that a judge alone trial is in the interests of justice. It would mean that in every case where there is a hung jury, there would be a justification for a judge alone trial the second time around.

8. [46]

   The fact that the credibility of witnesses is a central issue in the trial may operate in favour of a jury trial. In R v McNeil [2015] NSWSC 357; (2015) A Crim R 12, Johnson J said:

9. [47]

   A similar point was made by Lonergan J in R v Mackie (No 2) [2018] NSWSC 1654 at [25].

10. [48]

    The Crown accepts that the issues in the trial do not require the application of community standards and that there is no presumption that the trial should proceed by jury. Nevertheless, it is significant that the first trial was conducted before a jury as efficiently as the complainant’s condition would allow. The only additional evidence would appear to be that of Dr McSwiggan, and I have considered her evidence earlier on the assumption, perhaps not justified in the light of what the Crown has said, that everything in her report would be given in evidence.

11. [49]

    It would have been of assistance to the Court and, no doubt, to the accused if the Crown had been in a position at the hearing of this application to indicate which portions of the report were to be led in evidence at the trial. However, in the absence of the Crown’s final position being known, I have determined this application on the basis that the whole of Dr McSwiggan’s evidence will be led.

12. [50]

    In my opinion, there is nothing to suggest that it is in the interests of justice to order a judge alone trial.

Conclusion

1. [51]

   Accordingly, the orders I make are these:

   1. (1)

      Grant leave pursuant to s 132A Criminal Procedure Act 1986 (NSW) to make the application within 28 days of the date fixed for trial.

   2. (2)

      Application for trial by judge alone refused.