R v Qaumi & Qaumi

1. [1]

   Farhad Qaumi and Mumtaz Qaumi are charged with the murder of Joseph Antoun. Farhad Qaumi is also charged with possessing an unauthorised firearm. The firearm in the second count is the firearm that was allegedly used in the murder. Both accused men apply for a “trial by judge order” under s 132 of the Criminal Procedure Act 1986 (NSW) (“the Act”). Leave is not required because the applications were made within the 28 day time limit provided by s 132A of the Act. The Crown opposes a trial by judge alone.

2. [2]

   The count alleging the murder of Joseph Antoun was originally part of an indictment alleging 36 offences against nine accused. All of those offences arose out of the involvement of the accused in a group known as the Brothers for Life Blacktown Chapter (BFL Blacktown). The original indictment encompassed around ten shooting incidents that took place between July and December 2013. The last incident was the Antoun murder. Applications for separate trial and severance of counts were dealt with in December 2015 and judgment on those applications was delivered on 3 February 2016: R v Qaumi & Ors (No 3) (Severance and separate trials) [2016] NSWSC 15. An order was made severing the counts relating to the Antoun murder and the trial in relation to that matter was ordered to commence at the conclusion of a trial involving five accused men [1] charged with a total of 24 of the original 36 offences. That trial, to which I will refer as “the joint trial”, proceeded from 4 April 2016 until 28 September 2016 when the jury retired to consider its verdict. [2] Three counts on the indictment in the joint trial relate to the killing of Mahmoud Hamzy at Revesby Heights on 29 October 2013 (“the Hamzy murder”). At the time of considering the present application, the jury in the joint trial is deliberating on its verdicts.

3. [3]

   As part of the pre-trial hearings conducted between November 2015 and March 2016, the accused made an application for a trial by judge alone. The application as originally framed related to all of the proceedings on the original (36 count) indictment. However, once the proceedings were separated, the application was determined in relation to the evidence and counts arising in the joint trial: R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274. The application by each of the accused for a trial by judge order under s 132 of the Criminal Procedure Act was refused.

4. [4]

   Both of the accused men now seek an order under s 132 in relation to the trial of the Antoun murder. The Crown does not consent to a judge alone trial and so it is necessary to consider whether or not it is in the interests of justice to make a “trial by Judge order”.

5. [5]

   The Criminal Procedure Act provides:

6. [6]

   Many of the applicable legal principles were set out in R v Qaumi & Ors (No 14) and I undertook a more thorough analysis of the case law and issues surrounding applications for judge alone trials in a judgment known as R v Simmons; R v Moore (No 4) [2015] NSWSC 259. There are many relevant authorities including a number of the cases to which I referred in those earlier judgments: see, for example (in the Court of Criminal Appeal) R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86, R v Stanley [2013] NSWCCA 124 and Redman v R [2015] NSWCCA 110; (in the Supreme Court of NSW) R v King [2013] NSWSC 448, R v Dean [2013] NSWSC 661, R v Abrahams [2013] NSWSC 729, R v Gittany [2013] NSWSC 1503, R v Villalon [2013] NSWSC 1516, R v McKnight [2014] NSWSC 398, R v Trawin-Hadfield [2014] NSWSC 591, R v Farrow [2014] NSWSC 1781 and R v McNeil [2015] NSWSC 357; (in the District Court of NSW) R v Markou [2011] NSWDC 25, R v GSR (No 3) [2011] NSWDC 17, R v FH [2012] NSWDC 283 and R v Tasich [2012] NSWDC 261. Similar provisions have also been considered by the courts of other States: see, for example, Arthurs v Western Australia [2007] WASC 182, Coates v Western Australia [2009] WASCA 142 and R v Fardon [2010] QCA 317.

7. [7]

   Except where it is necessary, I will not revisit my earlier analyses of the law and relevant considerations.

8. [8]

   Other judgments in the joint trial proceedings relevant to a consideration of the present application are the decision concerning non-publication of the evidence in the joint trial and an application for orders that certain media outlets “take down” publications from the Internet: see R v Qaumi & Ors (No 15) [2016] NSWSC 318 and R v Qaumi & Ors (No 16) [2016] NSWSC 319. Those decisions were subject to review in the Court of Criminal Appeal (Bathurst CJ, Beazley P and Hoeben CJ at CL): Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97. Those three judgments touch on some of the issues relevant to a consideration of the present application including the extent of pre-trial publicity, the prejudice surrounding the allegations and the capacity of a lay jury to obey directions to put aside matters of prejudice in determining the real issues in the trial.

9. [9]

   In the briefest terms, the prosecution case is that Farhad and Mumtaz Qaumi accepted a $200,000 contract to kill Mr Antoun and that they enlisted Witness L to carry out the murder. Before the day of the shooting, one of the accused provided Witness L with a loaded 0.38 calibre revolver, which was then hidden at his house. On 16 December 2013, the accused contacted Witness C and asked him to drive Witness L to an address in Strathfield to “drop off a package”. After Witness L picked up the gun, Witness C drove Witness L to the home of Mr Antoun and his family. Witness L went to the front door, pretending to deliver a package, and shot Mr Antoun five times. Mr Antoun died at the scene. After the murder, Witness L hid the revolver under a tree and later gave it to Farhad and Mumtaz Qaumi. On 3 January 2014, Farhad Qaumi was observed with Witness K, another member of the BFL Blacktown. Later that day Witness K was stopped by police and a 0.38 calibre revolver was located in his car. Ballistics experts later identified that gun as the weapon used to murder Mr Antoun.

10. [10]

    To establish the involvement of the accused in the murder, the prosecution will rely on the evidence of a number of informant witnesses, surveillance evidence and evidence relating to the use of telephones and the connection of calls through certain mobile telephone cell towers.

11. [11]

    The main reason that the earlier application for a judge alone trial was refused was that a number of issues to be litigated in the trial gave rise to “a factual issue that require[d] the application of objective community standards”: s 132(5). Those issues were self-defence (giving rise to a question of reasonableness) and duress (giving rise to a consideration of whether the “ordinary person” would have yielded to the threats).

12. [12]

    The earlier application was largely based on the extent of pre-trial publicity and the prejudice inherent in parts of the evidence to be adduced by the prosecution that suggested that the accused were involved in violence and criminality that was not charged in the indictment. It was submitted that a lay jury would not be able to put the prejudice aside in spite of the strongest directions.

13. [13]

    The present application is based on similar considerations and on the need to maintain the integrity of the jury that is currently deliberating. Unlike the joint trial, the Antoun murder trial will not give rise to any issue requiring the application of community standards.

14. [14]

    I have decided that a trial by judge order under s 132 should be made. These are my reasons for that decision.

15. [15]

    In R v McNeil, Johnson J emphasised the important role of the jury in the criminal justice system. His Honour said:

16. [16]

    While the structure of the Act in ss 131, 132 and 132A suggests that the starting point is that criminal proceedings are to be tried by jury, there is binding authority that there is no presumption in favour of a trial by jury: R v Belghar at [96] and [118]; R v Stanley at [42]; RKF v R [2016] NSWCCA 116 at [39]. I accept that the observations in cases such as R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 and Swain v Waverley Council (2005) 220 CLR 517; [2005] HCA 4 are relevant to a consideration of “the interests of justice” as that expression is used in s 132. However, it is difficult to give those observations meaningful or practical content in any particular case. Such considerations must be relevant in every case where a judge is called upon to make a decision under s 132(4).

17. [17]

    It is wrong to proceed on the basis that certain serious or notorious crimes should ordinarily be tried by jury and ought not to be subject to a trial by judge order. As Martin CJ said in Arthurs v Western Australia at [82]:

18. [18]

    One of the most significant and frequently quoted passages concerning the importance of juries to the criminal justice system is to be found in the decision of Heydon J in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [90] – [97]. In that passage, his Honour referred to the writings of Lord Devlin in “Trial by Jury (rev ed)” (1966). It is worth setting out what Heydon J said in full (citations and endnotes are omitted):

19. [19]

    That passage and the opinions expressed by Lord Devlin in the 1960s remain important and (no doubt) underpin the provision in s 132(3) of the Criminal Appeal Act which prohibits the Court from making a trial by Judge order if the accused does not consent. However, it is important to recall the context in which Heydon J was writing. This is disclosed in the paragraph that concludes his observations on the benefits of trial by jury:

20. [20]

    The reference to section 120(2) is a reference to the Western Australian legislation making it mandatory for a judge, sitting without a jury, to provide reasons. The section provides:

21. [21]

    Heydon J was emphasising the importance of providing reasons when a judge has decided (or the parties have agreed) to proceed without a jury in a serious criminal trial. His Honour was not deciding whether it was, or was not, appropriate to have made the decision to proceed without a jury.

22. [22]

    The transparency arising from the requirement to give reasons is one of the perceived advantages of a trial by Judge alone: see, for example, Arthurs v Western Australia at [76]. Against that, the requirement of unanimity (or near unanimity [3] ) is one of the advantages of trial by jury. As McKechnie J said in TVM v Western Australia (2007) 180 A Crim R 183 at [32]:

23. [23]

    In R v Stanley, Barr AJ (with whom Macfarlan JA and Campbell J agreed) confirmed at [42] that “the Court should not assume that either form of trial is more desirable than the other” and that “the interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury”. See also, RKF v R at [39].

24. [24]

    The accused rely on the contents of three affidavits:

    1. (1)

       An affidavit of Farhad Qaumi’s solicitor, Ms Gittani, dated 15 January 2016.

    2. (2)

       An affidavit of Mumtaz Qaumi’s solicitor, Ms Sten, dated 28 January 2016.

    3. (3)

       A supplementary affidavit of Mumtaz Qaumi’s solicitor, Ms Ng, dated 11 October 2016.

25. [25]

    Each of those affidavits annex a number of newspaper and Internet articles which demonstrate that the two accused, as well as the Brothers for Life gang itself, have been the topic of significant media and Internet attention. I summarised the material in the affidavits of Ms Gittani and Ms Sten in R v Qaumi & Ors (No 14) as follows:

26. [26]

    I also considered the affidavit of Ms Christinson (the solicitor for a co-accused in the joint trial) which provided a comprehensive summary of the publicity that has surrounded the Brothers for Life between January 2014 and June 2015. That material was not relied on in the current application.

27. [27]

    The supplementary affidavit of Ms Ng, dated 11 October 2016, set out the results of an Internet search using the keywords “murder of Joseph Antoun” as at 10 October 2016. Mr Young SC placed particular reliance on annexures R, S, V, Z, AA and BB in which links were made between the Antoun murder and the BFL Blacktown.

28. [28]

    The accused submit that the extensive media coverage of the offences and organisation makes it impossible to summon a jury pool that will not be affected or influenced by the publicity. They argue that the nature and extent of the coverage would have a damaging and prejudicial effect on a jury and that they would not receive a fair trial.

29. [29]

    The evidence demonstrates the extent of pre-trial publicity to which both the accused and the Brothers for Life have been subjected. The material contains references to the activities of the group generally and also makes specific factual assertions regarding the Antoun murder. It is possible that a member of the jury pool who had read that material – and who remembered it – might be pre-disposed to look unfavourably upon the accused and their case.

30. [30]

    While the pre-trial publicity has been extensive, the reality is that most of it is, by now, quite historic. There has been very little publicity over the last twelve months while the pre-trial hearings and joint trial proceeded. No doubt this is the result of various non-publication orders that have been in place since November 2015. The most recent publicity appears to be an article published on 5 January 2016 (annexure I to Ms Gittani’s affidavit). This described the “most notorious” criminals in Goulbourn prison and named Farhad Qaumi, alleging that he threatened to kill prison officers. There was also an article published on 24 May 2015 (annexure BB to the affidavit of Ms Ng) directly relating to the murder of Joseph Antoun.

31. [31]

    The pre-trial publicity has been extensive, sensational and potentially prejudicial. It is clearly a relevant and important factor in determining where the interests of justice lie. However, I have concluded that a jury could be selected that would judge the matter free of prejudice that might arise from such material.

32. [32]

    There are a number of procedures and safeguards that can be adopted to reduce the potential for the publicity to effect prospective jurors. Some of these were discussed in R v Qaumi & Ors (No 14) at [80] and implemented during the joint trial.

33. [33]

    The first measure was to order that the names of the accused not appear in court lists prior to the commencement of the trial. The effect of this was that any potential juror who received a jury summons would be unable to make any enquiry or Internet search about the accused or the case between the time of the summons and the time of the empanelment.

34. [34]

    The second measure was to ensure that there was a large jury panel, to inform the members of the panel in some detail of the nature of the allegations and the identity of the witnesses, and to make repeated calls on the panel to indicate if they might not be able to consider the case impartially: s 38(7) of the Jury Act 1977 (NSW). This procedure resulted in around 30 or more applications to be excused prior to empanelment of the jury in the joint trial.

35. [35]

    Finally, to reduce the risk that a juror might access such material during the trial, the jury were given strong and repeated directions including reference to the provisions of s 68C of the Jury Act. The jury was reminded repeatedly that making any enquiries including Internet searches for the purpose of obtaining information about the accused or other matters relevant to the trial was a criminal offence carrying a possible penalty of imprisonment.

36. [36]

    In determining the earlier application for a trial by judge alone I referred to a number of high profile cases that had proceeded without apparent prejudice to the accused: see R v Qaumi & Ors (No 14) at [84] – [87].

37. [37]

    Within the confines of practical reality, it is necessary to operate on the assumption that jurors are true to their oath and comply strictly with the directions given to them by trial judges: see for example, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [62]-[63]. In R v Jamal, Spigelman CJ said at [19]:

38. [38]

    In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 McHugh JA said at [31]:

39. [39]

    In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, Brennan J said at 614 – 615:

40. [40]

    While the pre-trial publicity is a significant factor, I would not have been persuaded that, of itself, it constituted sufficient reason to conclude that it is the interests of justice to order that the trial be by judge alone. The circumstances are similar to those that prevailed in R v McNeil [2015] NSWSC 357 where Johnson J found at [66] that the lapse of time between the publicity and the trial was a significant factor. As in this case, his Honour did not find the pre-trial publicity to be a decisive factor.

41. [41]

    In addition to the pre-trial publicity, the accused also point to the potential for prejudice in evidence to be tendered by the Crown which discloses (if accepted) that the accused were involved in criminal and violent activity beyond the matters asserted in the indictment. For convenience, I will refer to this as evidence of uncharged acts.

Context or relationship evidence not subject to objection

1. [42]

   The evidence of uncharged acts includes evidence of violence and intimidation directed at fellow members of the BFL Blacktown. Examples of such evidence include:

2. [43]

   The purpose of this evidence is to place the actions of Witnesses C, K and L in a realistic context and to explain the relationships between those witnesses and the accused. In other words, it is calculated to explain why those witnesses followed the directions of Farhad and Mumtaz Qaumi in the course of the murder of Joseph Antoun and in its aftermath. The evidence is not led to establish a tendency to be violent or to commit criminal offences.

3. [44]

   There is no objection to the evidence being led and used in this way. Similar evidence was adduced in the joint trial and strong directions were given to the jury to ensure that the evidence was not misused. In spite of the service of various tendency notices, negotiation between the parties meant that the Crown did not adduce tendency evidence in the course of the joint trial.

Tendency evidence

1. [45]

   However, in the Antoun trial, and in addition to that general evidence of violence and intimidation, the Crown has also served a revised tendency notice under s 97 Evidence Act 1995 (NSW). The notice identifies the tendency that it seeks to establish:

2. [46]

   “The tendency sought to be proved is that [Farhad Qaumi and Mumtaz Qaumi] would direct or request [Witness L] to attend a residential house and shoot and kill an occupant.”

3. [47]

   The notice goes on to indicate that the substance of the evidence is to be found in the transcript of evidence given in the joint trial by various witnesses. In particular, it is the evidence of Farhad Qaumi and Mumtaz Qaumi “tasking” Witness L to carry out the Hamzy murder.

4. [48]

   Objection is taken to the tendency evidence and I have heard argument as to its admissibility. I have concluded that the evidence is relevant and possesses “significant probative value”: s 97 Evidence Act. The probative value lies in the fact that in the joint trial, Farhad and Mumtaz Qaumi admitted that they directed Witness L to attend Mohammed Hamzy’s residential premises and to shoot and kill him. It was their case that this action was done in self-defence. In the Antoun murder trial, the central issue will be whether the accused directed Witness L to do a very similar thing – to attend the premises of Joseph Antoun and to shoot and kill him. The Crown anticipates that Witness L will give evidence that this is why he carried out the killing. The defence will dispute this and, judging from the conduct of the joint trial, there will be a sustained and spirited attack on the credibility of Witness L (and the other informant witnesses). In those circumstances and given the central fact in issue, the fact (as it is admitted to be) that a few months earlier the accused engaged Witness L to carry out a shooting is evidence with a very high degree of probative value. [4]

5. [49]

   However, the question under s 101 of whether “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” is more difficult. It is difficult, although not perhaps impossible, to formulate jury directions which would allow the evidence to be used as evidence making it more likely that the accused engaged Witness L to carry out the shooting because they had done so before, while prohibiting a lay jury from using the evidence as evidence that the accused were murderers. As Mr Young SC submitted, whatever directions were provided to the jury, the accused would essentially be forced to re-run their defence of self-defence. This forensic minefield will be no easier to navigate if the jury deliberating upon the Hamzy murder returns verdicts part-way through the Antoun murder trial. Those verdicts might be guilty (of murder), guilty of manslaughter or not guilty (of murder or manslaughter).

6. [50]

   Generally, a decision or ruling that evidence is either admissible or inadmissible is not influenced by the mode of the trial. In other words, evidence that is admissible in a trial by judge sitting alone would also be admissible in front of a jury. However, that general proposition is not universally true. Evidence that may create (or have the potential to create) unfair prejudice before a jury might be admitted before a judge without a corresponding danger of unfair prejudice. The present circumstances may well provide an example of this.

7. [51]

   Johnson J recently came to a similar conclusion in R v Droudis (No 13) [2016] NSWSC 1350. The parties consented to a trial by Judge alone and his Honour was considering the admissibility of certain evidence, including tendency evidence. Having discussed at [91]-[94] the requirement for a Judge sitting alone to provide reasons and the way in which this distinguishes that process from a jury trial, his Honour concluded:

Determining the tendency issue and the judge alone issue: which came first, the chicken or the egg?

1. [52]

   In Droudis, the parties agreed to a judge alone trial and the tendency issue could be considered knowing that the potential for prejudice was diminished because of the mode of trial and that it would not be necessary to fashion jury directions designed to eliminate the prejudicial impact of the evidence. In the present case, there is a dispute as to whether the trial is to be by judge alone or jury and the two matters have been argued sequentially. I reserved judgment on both issues. This gives rise to an issue appropriately described by Senior Counsel for Farhad Qaumi as a “chicken and egg” situation. In other words, which decision should be made first?

2. [53]

   It is potentially a significant matter. For example, if the tendency evidence is to be admitted, that would impact on the decision as to whether to make an order for a Judge alone trial because a jury is more likely to be influenced by prejudice arising from knowledge that the accused were involved in the Hamzy murder. If the tendency evidence was excluded, the arguments in favour of a judge alone trial would be less compelling. Conversely, if I determined (first) that the trial is to be conducted before a jury that may increase the force of the arguments that the tendency evidence should be excluded because of the proper application of s 101 of the Evidence Act.

3. [54]

   All parties acknowledge this conundrum and agreed that it was appropriate to consider the issues at the same time.

Decision on tendency evidence and relevance to the application for a judge alone trial

1. [55]

   I have determined (in a separate judgment) that the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the accused. Accordingly, I have ruled that the evidence is admissible: see R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487.

2. [56]

   The nature and extent of the evidence suggesting that the two accused men committed reprehensible acts that are not charged on the indictment is a relevant matter in determining whether it is in the interests of justice to make an order for a trial by Judge alone.

3. [57]

   A practical, but particularly complicating, factor in the present case is the fact that the jury in the joint trial is currently deliberating. It is impossible to predict how long the deliberations will last. The jury retired to consider its verdict on Wednesday 28 September 2016 at 3.23pm but deliberations did not commence until 10.00am the next day. There have been sixteen court days since that time but several days (or half days) of deliberation were lost as a result of ill health of one or other of the jurors. In view of the complicated and diverse issues involved in the joint trial, it is unlikely that the jury will reach verdicts on all counts and all accused in less than a period of several weeks. I delayed making the decision on this application to see whether the jury might reach verdicts, or provide some indication that verdicts were imminent. While some of the jury’s questions suggest that progress is being made, there is nothing to suggest that the verdicts are imminent.

4. [58]

   The problem that this creates was emphasised by Senior Counsel for Farhad Qaumi who is troubled by the possibility that a new jury might be empaneled before verdicts are reached in the joint trial. The concern is that there is a risk that the two juries, or individual members of the juries, may come into contact with each other in the course of the deliberations of the jury in the joint trial.

5. [59]

   The trials are taking place in a special and secure court in the Downing Centre, at the southern end of the central business district of Sydney. While the Supreme Court occasionally uses this courtroom, generally the judges of the NSW District Court use the trial courts in this court complex. I have consulted a number of the judges of the District Court as to their practice when dealing with back-to-back trials involving the same accused. Practices vary from judge to judge. Some judges have empanelled a second jury while the first jury is still deliberating. No problems have been encountered but these judges have nevertheless harboured some misgivings about the practice. One very senior Judge of the District Court, whose opinion is greatly valued, will not run the risk of empanelling a second jury when the first jury is deliberating. His Honour’s view is that the risk of the juries coming into contact is real and not worth running.

6. [60]

   The circumstances prevailing in the present case are far more extreme than that generally encountered in back-to-back trials in the District Court. This is because the first trial here took around six months before the jury retired to consider its verdicts. It is not worth running even the slightest risk of contamination of the jury’s deliberations.

7. [61]

   With the consent of counsel for the parties, I explored the matter with the extremely efficient and helpful Court Officer and with the jury co-ordinator who is responsible for all jurors and juries within the Downing Centre. The Court Officer showed me the jury assembly rooms, muster rooms and deliberation rooms. I was also shown the entrances and exits that are used by jurors. There is a common mustering area in which several juries might be present during a luncheon adjournment or before court. I was advised that one of the juries (probably the putative Antoun jury) could be kept out of that area and quarantined from the other juries within the Downing Centre by using separate entrances and exits. That latter step would involve the somewhat unsatisfactory process of having the jury meet at a designated location in the streets adjacent to the Downing Centre (rather than within the building). Commencement times, lunch hours and finish times could be staggered by half an hour or so to reduce the risk of jurors from the two juries coming into contact with one another.

8. [62]

   I have no doubt that the steps that could be taken by the officers responsible for such matter would minimise the risk that the juries would have contact with each other within the Downing Centre. However, even if that risk was reduced to zero, there would remain a risk of the jurors coming into contact in the many restaurants, bars and public houses in the vicinity of the court complex. It is well known that individual jurors, groups of jurors and whole juries sometimes socialise in establishments located nearby the court complex.

9. [63]

   Having considered the steps that could be taken, I have concluded that the risk of contamination is not great. However, it is ultimately unable to be calculated and the possibility cannot be ruled out. In view of the stakes involved, I am not prepared to empanel a jury in the Antoun trial until the jury in the joint trial has announced its verdicts.

10. [64]

    In reaching that conclusion I considered, but rejected, the idea of sequestering one or other of the juries.

11. [65]

    Ordinarily, the appropriate solution would be to postpone the commencement of the trial until the verdicts are returned. However, because of the estimated length of the trial, the proximity of the Christmas vacation and the undesirability of having the jury deliberating into the weeks and days leading up to Christmas, if the case is postponed it would not commence until February or March of 2017. That would be an unfortunate outcome for a variety of reasons. In reviewing my judgment ordering non-publication of the evidence in the joint trial, the Court of Criminal Appeal said:

12. [66]

    It has been held that the “overall efficiencies” in the court processes (for example, the suggestion that a Judge alone trial may be quicker and more efficient than a jury trial) is not a matter that is relevant to “the interests of justice in the particular case” although it might form “part of the mix”: R v Belghar at [110] – [111] (McClellan CJ at CL). However, there are cases where such matters may have relevance because of the particular circumstances of the case. For example, in R v Gittany, McCallum J was satisfied that the reduction in the length of the trial was a relevant factor where the evidence established that the accused would have been unable to fund a longer (jury) trial and would not be able to retain counsel of his choice.

13. [67]

    In Nationwide News v Qaumi, the Court of Criminal Appeal at [75] described the present proceedings as “exceptional” (albeit in a different context). A consideration of the interests of justice in the present case include:

14. [68]

    The need to maintain the integrity of the jury in the joint trial throughout their lengthy deliberations.

15. [69]

    The interests of the bereaved, the accused and the witnesses in having the Antoun murder trial commence as soon as practicable.

16. [70]

    The public interest in open justice and the desirability that the non-publication order over the evidence in the joint trial be lifted as soon as possible. A further delay in the commencement of the trial would mean that non-publication orders made in this Court and confirmed by the Court of Criminal Appeal would continue well into 2017 in circumstances when it was assumed that the orders would be extant only until sometime towards the end of 2016.

17. [71]

    None of these matters are determinative of the present application but the unusual combination of circumstances militate in favour of making an order for a trial by Judge alone.

18. [72]

    It is apparent that the trial will involve significant issues concerning the credibility of a number of informant witnesses. Some of these witnesses were directly and criminally concerned in the events giving rise to the charges and others were involved in other criminal activities undertaken by the BFL Blacktown. Some give evidence of admissions. All of these witnesses are witnesses whose evidence is likely to be subject to a strong warning under s 165 of the Evidence Act that the evidence may be unreliable.

19. [73]

    The determination of the credibility of these witnesses is likely to be central to the outcome of the trial. There is a body of authority that suggests that a jury is the better tribunal to make determinations of issues of credit. I considered these authorities in R v Simmons & Moore (No 4) at [73] – [82]. In R v McNeil, Johnson J concluded:

20. [74]

    I remain of the view I have expressed in the past that the fact that credibility issues will arise in a trial is essentially a neutral factor. [6] As was discussed by Owen and Bus JJA in Coates v Western Australia there are advantages to each mode of trial. Certainly, unanimity is a factor of considerable importance but this is so in any case where there is a question whether to make an order for a criminal trial to proceed before a judge without a jury.

21. [75]

    In written submissions, the Crown made the following observation:

22. [76]

    When explored in oral argument, the Crown’s submission was rather enigmatic. There was no suggestion that I was compromised or disqualified from hearing the case. There was no suggestion that the objective observer of the proceedings might think that I might not bring an impartial mind to bear upon the issues between the parties: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. The submission seemed to be that if I felt the need to recuse myself, it would be necessary to adjourn the proceedings until another judge became available whereas a jury panel has been summoned to attend on Monday 24 October 2016. [7]

23. [77]

    Neither the Crown nor the accused suggest that my pre-existing knowledge of the case or previous findings in relation to the credibility of some of the witnesses (for example, in sentencing Witnesses L and M) [8] gives rise to any actual or apprehended bias. [9] This is not surprising. Those earlier decisions were based on different evidence, arising in the context of different issues and, in some instances, made in the absence of any real contradictor. It is entirely orthodox and common for judges to be called upon to make factual findings on the same or similar subject matters and involving common witnesses without there being any suggestion that the judge is disqualified as a result of apprehended bias.

24. [78]

    McHugh JA in Attorney General (NSW) v John Fairfax and Sons and Bacon (1985) 6 NSWLR 695 at 709 said “judicial officers by their training and experience are expected to put aside prejudicial remarks and comments.” In Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25; [1982] HCA 31, Mason J made a similar point:

25. [79]

    I am not persuaded that my previous exposure to the facts of this case, my existing knowledge of the evidence and witnesses, or the fact that I have made a number of previous rulings and published judgments are matters of significance in determining whether it is in the interests of justice to make an order for a trial by judge alone.

26. [80]

    A relevant consideration is the fact that each of the accused, with the benefit of legal advice, has made an informed decision to waive his right to a trial by jury: see, for example, R v Simmons & Moore (No 4) at [58] - [60]; R v Belghar at [99], Arthurs v Western Australia at [79].

27. [81]

    There is no authority of which I am aware that similar consideration applies with respect to the position taken by the prosecution. The fact that the prosecution does not consent means that the decision must be made by the Court. Further, it is well established that “an accused cannot have a trial by judge alone for the asking”: R v Stanley at [42]; R v Simmons & Moore (No 4) at [59].

28. [82]

    Even allowing for the importance of trial by jury as a means of allowing the community to participate in the criminal justice system, and giving full weight to the arguments advanced by the Crown, the particular circumstances of the present case mean that it is in the interests of justice to make a “trial by Judge order” under s 132.

29. [83]

    Of particular significance is the difficulty of formulating jury directions that would allow the prosecution to adduce its tendency evidence while avoiding prejudice and unfairness to the accused with the risk that the trial may miscarry.

30. [84]

    Other important factors militating in favour of making the order are interrelated; namely the importance of maintaining the integrity of the jury that is deliberating in the joint trial, ensuring that the Antoun murder trial commences in a timely fashion and promoting the community interest in open justice by minimising the length of time that non-publication orders remain in place.

31. [85]

    For those reasons I make a trial by judge order under s 132 of the Criminal Procedure Act 1986 (NSW).