R v McCloskey; R v Hamalainen (No 2)

1. [1]

   In the interests of brevity and without disrespect, I shall refer to the accused by their initials, RM and SH.

2. [2]

   The Court has before it the following pre-trial applications:

   1. (1)

      an application by SH for a separate trial made by notice of motion filed on 25 July 2019;

   2. (2)

      applications by RM and SH for a trial by judge order made by notices of motion filed on 25 July 2019.

Background

1. [3]

   The accused, RM and SH, are each charged on one indictment with one count of murdering John Salafia on 23 June 2013 at Kings Point in New South Wales. For some time, the matters have been listed for trial commencing on 26 August 2019.

2. [4]

   The prosecution’s case as outlined in the Crown case statement is as follows:

3. [5]

   RM has pleaded not guilty. As disclosed in RM’s notice of defence response, RM’s case is that he is not guilty of the count on the indictment. He has put in issue the following facts and circumstances:

   1. (1)

      whether he murdered the deceased by shooting him; and

   2. (2)

      the truthfulness and reliability of the admissions allegedly made by him to witness RS 1591297, which are the admissions referred to in pars 44, 45 and 48 of the Crown case statement, as well as the recorded admissions referred to in pars 46 and 47.

4. [6]

   SH has pleaded not guilty. His case, as disclosed in his notice of defence response, is that he was not involved in any joint enterprise to murder the deceased nor was he involved in organising the murder. Accordingly, SH has put in issue all the facts, matter and circumstances going to whether he was involved in the murder of the deceased. In addition, SH contends that admissions made by RM are not admissible against him.

5. [7]

   In my rulings on evidence given on 26 August 2019, I held that, among other things, the evidence of admissions made by each of the accused after the deceased was killed was not admissible against his co-accused.

Evidence on the applications

1. [8]

   RM relied upon the following evidence in support of his application for a trial by judge order:

   1. (1)

      The affidavit of Chris Kapsis sworn 16 August 2019 which disclosed that his costs had been estimated at $173,250 for the trial and that RM’s parents would be providing the funds. This was said to place a significant burden on their savings and, if further legal costs were involved, it would place RM’s father in a very difficult financial position.

   2. (2)

      The affidavit of Chris Kapsis sworn 19 August 2019, which is the subject of a non-disclosure and non-publication order. It is sufficient to note here that I have taken the matters stated in that affidavit, which were not challenged by the Crown, into account in reaching my decision on the application for a trial by judge order.

2. [9]

   In support of SH’s applications for a separate trial and a trial by judge order, the affidavit of Chris Eliopoulos sworn 19 August 2019 was read. This evidence established that after proceedings were commenced against SH the case was reported in the media and there were a number of reports published on the internet. In addition, a facebook page entitled “Justice for Johnny Salafia” was created in about November 2017 when SH was arrested. That page has slightly more than 2,160 active followers. Witnesses likely to give evidence at the trial are said to have commented on this facebook page.

3. [10]

   The evidence also established that SH has $220,000 available to meet all his legal fees and other expenses. This has been borrowed from his partner and her father. It is said that time spent by legal representatives in preparation of the matter has been minimised.

4. [11]

   The affidavit also states:

5. [12]

   Also before the Court was a table setting out evidence which could be led by tendering written statements and in other ways which were said to be more efficient and likely to save time, if the trial proceeded before a judge alone.

6. [13]

   I shall deal with SH’s application for a separate trial first and then RM’s and SH’s applications for a trial by judge order.

SH’s separate trial application

1. [14]

   SH submitted that there should be separate trials on the basis that:

   1. (1)

      there is evidence admissible against RM that is inadmissible against SH;

   2. (2)

      that inadmissible evidence is of an exceptionally damning nature against SH;

   3. (3)

      that inadmissible evidence would be likely to turn an acquittal into a conviction amounting to a positive injustice.

2. [15]

   It was submitted that the admissions made by RM point strongly to RM being present and include evidence that RM acted at the direction of SH. This latter point was said to be “exceptionally damning while being wholly inadmissible”.

3. [16]

   In addition, it was contended in effect that if there was a joint trial, a jury would be likely to reason impermissibly in that, if the “strong case” against RM that he committed the murder at the request/on behalf of SH was proved, the inference would be irresistible for a jury that the “weaker case” against SH must be inevitably proved because, on the Crown case, RM committed the offence on the direction of SH.

4. [17]

   The impermissible reasoning was said to be strengthened by the fact that RM’s admissions accord with the Crown case. Thus, those admissions strengthen the Crown case against RM and are therefore also likely to strengthen the Crown case against SH. RM’s admissions are also likely to be used to support the evidence of the other witnesses. This was said to be similar to the situation in R v Pham [2004] NSWCCA 190 (Pham) at [7] and [8].

5. [18]

   The submissions on behalf of SH acknowledged that RM would be seeking to establish that his admissions were not true. It was submitted that, even if the jury came to the conclusion that they were exaggerated, this would still leave the fact that RM, who was good friends with SH, implicated SH. To the extent that RM’s contesting his admissions raises his further bad character, it was said that the more RM is seen as a person of bad character, the more the likely prejudice will flow to SH.

6. [19]

   Finally, SH submitted that so many of the witnesses being registered informers will impact upon the jury believing SH is the head of the organisation and therefore must have been involved in the murder.

7. [20]

   The Crown opposed an order for separate trials and submitted that the relevant principles were those set out in Nader v R [2018] NSWCCA 256 at [57]-[74].

8. [21]

   Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

9. [22]

   There is no doubt that the offence in the present case alleged to have been committed by each of SH and RM arises out of the same set of circumstances. Accordingly, the Court may hear and determine the present proceedings against both SH and RM together, unless the Court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

10. [23]

    The general rule is that where persons are charged with committing an offence jointly, they are to be tried together: Webb and Hay v The Queen (1994) 181 CLR 41 (Webb); [1994] HCA 30; Nader v R at [57]. In Webb, Toohey J (with Mason CJ and McHugh J agreeing) said at 88-89, [25]:

11. [24]

    It is in the interests of justice that the whole picture is presented to the members of the jury. A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged: Ali v The Queen (2005) 214 ALR 1 at [58]; [2005] HCA 8.

12. [25]

    It must be recognised, as is clear from the passage from Webb quoted above, that some prejudice to one or other accused is inevitable in any joint trial and that is a factor which must be taken into account in striking the necessary balance: R v Dellapatrona (1993) 31 NSWLR 123 at 133; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 (Rogerson No 3) at [68].

13. [26]

    Where prejudice may arise because there is evidence which is admissible against one accused but not the other, that prejudice is to be addressed by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused: Webb at 89. In that regard, the common law proceeds on the assumption that the jury will obey any direction which is given by a trial judge: Gilbert v The Queen (2000) 201 CLR 414 at [13] and [31]; [2000] HCA 15.

14. [27]

    Questions of cost and inconvenience are not irrelevant in determining whether separate trials ought to be ordered: R v Middis (NSWSC, 27 March 1991, unrep) (Middis); R v Oliver (1984) 57 ALR 543 at 547. This question involves a degree of balancing of factors: R v Kearnes; R v Paton [2013] NSWSC 1139 (Kearnes) at [38].

15. [28]

    Nonetheless, it must be accepted that, where there is a real risk of positive injustice to an accused from a joint trial, the general rule must give way, and separate trials should be ordered: Rogerson No 3 at [62] and the cases there cited.

16. [29]

    A real risk of positive injustice may arise where, as in the present case, there are alleged admissions directly admissible against one accused but completely inadmissible as hearsay evidence against the other accused. In such a case, it has been accepted that the question of whether there is a real risk of positive injustice such that there should be separate trials can be answered by considering the three principles identified by Hunt J (as his Honour then was) in Middis: see for example, R v Fernando [1999] NSWCCA 66 at [210]; Kearnes at [30]-[34]; R v Qaumi (No 3) [2016] NSWSC 15 at [128]. Hunt J in Middis said as follows:

17. [30]

    If, when placed on the scales, the inadmissible, prejudicial material would be likely to turn a potential acquittal to a conviction then this may amount to “positive injustice”: Pham at [39].

18. [31]

    In relation to these principles, it should be noted, however, that in this context, "immeasurably" does not mean enormously, but rather in a way that cannot be quantified with precision or “significant, though incommensurable”: Pham at [39]; Kearnes at [35] and [36]. Thus, “immeasurably” can be seen as importing the notion of a significant strengthening of the case.

19. [32]

    The submissions made on SH’s behalf put the argument for a separate trial squarely on the basis of the principles in Middis. Accordingly, it is appropriate to consider, first, whether the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM. Secondly, the Court is required to assess whether the evidence of RM’s admissions contains material highly prejudicial to SH although not admissible against him. And, finally, the question whether there is a real risk that a weaker Crown case against SH will be made significantly stronger by reason of the prejudicial material is to be addressed.

20. [33]

    At the start of this analysis, it is necessary to note that the joint criminal enterprise alleged by the Crown does not involve SH and RM participating in the same acts in furtherance of the enterprise. Their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the other’s participation. On the Crown case, once SH had secured RM’s agreement to come down with his crew to the Ulladulla region and kill the deceased, SH’s role was primarily to arrange for a car to be provided for RM and his crew and to dispose of the car after the killing. By way of contrast, RM’s role in the enterprise, on the Crown case, was to shoot the deceased.

21. [34]

    Turning to the first question, the evidence against SH includes, without being exhaustive:

    1. (1)

       evidence of SH’s motive for wanting the deceased killed;

    2. (2)

       direct evidence of SH travelling to Sydney and meeting RM;

    3. (3)

       evidence of an admission by SH, on the day before the deceased was killed, that SH was sick of the deceased, Johnny, and RM and his crew were coming down to fix Johnny;

    4. (4)

       evidence of SH directing and participating in buying the Subaru, organising for it to be hidden in the bush, organising one of the witnesses to meet two other men who were to burn the car after the deceased was killed, instructing the witness to meet RM and show him where the car was and instructing that the car be refuelled as RM requested;

    5. (5)

       evidence that after the deceased was killed, SH instructed a witness to warn the person from whom the Subaru had been bought not to tell police that SH had bought the car;

    6. (6)

       evidence that SH organised for the car, after it had been burnt, to be moved further into the bush to make it less likely to be found and SH himself participated in moving it;

    7. (7)

       evidence of admissions by SH on 28 November 2014 that:

    8. (8)

       evidence of statements by SH indicating he knew that the guns used in the shooting of the deceased had been damaged when they were being cleaned in bleach;

    9. (9)

       evidence of SH in about 2015 identifying to a witness a burnt out car and saying “[t]hat’s the car they used on Johnny’s murder … we pushed it down the bush with the white Toyota after we moved it”;

    10. (10)

        evidence of admissions by SH in about 2015 when identifying the burnt out car and some months later as to SH’s motive being that the deceased had called SH’s son a spastic, allegations concerning Sara, the deceased was trying to take over the town and the deceased was going to get SH or SH was going to get the deceased;

    11. (11)

        evidence of admissions by SH after the deceased was killed that RM went too far and shot the deceased;

    12. (12)

        recordings using listening devices of admissions made by SH; and

    13. (13)

        evidence of SH attempting to fly to Finland immediately before he was arrested and after RM had been arrested.

22. [35]

    The evidence admissible against RM is of the same nature and includes:

    1. (1)

       direct evidence of RM meeting with SH, RM coming down to the Ulladulla region, RM being shown where the Subaru was by a witness and requesting that it be refuelled;

    2. (2)

       evidence of admissions by RM in August 2016 concerning how RM shot the deceased, how the guns used had been damaged when they were being cleaned with bleach, that RM did it as a favour for SH, that SH had arranged the murder and that SH’s motive for doing do was that the deceased was taking over the town, hanging with those associated with the Comancheros and had interfered with drugs supplied by SH;

    3. (3)

       recordings using listening devices of admissions made by RM;

    4. (4)

       evidence of admissions by RM saying on 28 June 2017 that the police were close to locking SH up for murder and were after RM. SH should be told to go to Finland and keep his mouth shut.

23. [36]

    I have already held that the admissions made by each of SH and RM after the deceased was killed are not admissible against the other accused.

24. [37]

    In my view, it could not properly be said that the evidence admissible against SH in relation to the existence of the joint criminal enterprise and his role and participation in it is weak. It consists of direct evidence of what SH did and said as well as the significant admissions made by SH.

25. [38]

    Nor is the evidence against RM different in nature from the evidence against SH. In each case, there is direct evidence of actions taken by each co-accused and, if the evidence is accepted, it could be found that those actions were in furtherance of the joint criminal enterprise as alleged by the prosecution. In addition, there were substantial admissions, some of which are recorded and some of which are contained only in the evidence of the witnesses. I note that, according to his defence response, RM proposes to challenge the truthfulness and reliability of the admissions referred to in pars 44, 45 and 48 of the Crown case statement as well as the recorded admissions referred to in pars 46 and 47.

26. [39]

    In substantial part, the differences in the direct evidence concerning SH and RM and the differences in the admissions made by each of SH and RM arise out of, and reflect, their different roles in the alleged joint criminal enterprise.

27. [40]

    In light of these circumstances, this is not a case where the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM. Consequently, this is not likely to be a case where the principles in Middis might lead to the conclusion that the matters ought to be heard and determined separately in the interests of justice.

28. [41]

    As to the second question, whether the evidence against RM contains material highly prejudicial to SH although not admissible against him, I have accepted that the admissions made by RM after the deceased was killed are not admissible against SH. It can also be accepted that there will be some prejudice to SH if evidence inadmissible against him is led in a joint trial and that evidence implicates him. I am not satisfied, however, that the material in RM’s admissions should be characterised as so “highly prejudicial” to SH as to lead to there being a positive injustice if there is a joint trial for three reasons.

29. [42]

    First, while RM’s admission as to how he shot the deceased is certainly graphic, that part of the admissions does not relate directly to SH at all. It is not part of the Crown case that SH was directly involved in the actual shooting of the deceased nor do RM’s admissions indicate in any way that SH was so involved. Thus, any prejudice to SH arising out of this part of the admissions by RM being led in evidence when they are inadmissible against SH would only arise indirectly or by association.

30. [43]

    Secondly, those aspects of the admissions which implicate SH in the joint criminal enterprise are essentially that RM participated as a favour for SH, at SH’s request and that SH arranged Johnny’s murder. The extent of any prejudice which these admissions, being inadmissible against SH, may cause SH if led in evidence during the trial must be assessed against the evidence admissible against SH in relation to those same issues.

31. [44]

    As has been noted above, there is direct evidence that SH organised to meet RM in Sydney and afterwards SH said, while arranging for a witness to meet RM and show RM where the car was before the deceased was killed, that RM and his crew “are coming down to fix Johnny”. There is also evidence of SH’s own admissions that he got RM “to do it and a couple of guys came down from Sydney” and that he, SH, “had to get it done” as the deceased “was going to shoot me. He called [my son] a spastic, he met up and had an argument and he said he is going to get me first”. This is not a case where there is no, or very weak, evidence admissible against SH that he instigated the alleged joint criminal enterprise. Thus, the prejudice that might potentially arise out of RM’s admissions in this regard is much more limited than might otherwise be the case.

32. [45]

    Thirdly, given the indirect and limited prejudice that is likely to arise, such prejudice is, in my view, more readily addressed and would be adequately alleviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

33. [46]

    As to the final question arising out of the Middis principle, for the reasons I have already given, there does not appear to me to be a real risk that the weaker Crown case against SH will be made “immeasurably” or significantly stronger by reason of the inadmissible, prejudicial material being before the jury. Given the nature and extent of the evidence admissible against SH, the Crown case against him should not be considered to be “weaker” in any relevant respect. Nor will it be made “immeasurably” or significantly stronger by reason of the inadmissible, prejudicial material, especially if appropriate directions are given to the jury concerning this evidence and the use that can properly be made of it.

34. [47]

    For these reasons, I do not accept SH’s submission that the evidence inadmissible against SH is “exceptionally damning” nor that such evidence would be likely to turn an acquittal for SH into a conviction. Thus, I also do not accept, as SH submitted, that there is likely to be a positive injustice if there is a joint trial.

35. [48]

    Furthermore, this was not a case, like Pham, where the jury was, in effect, required, separately to form two assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of an interview and the other, by ignoring it: see Pham at [8] and [33]-[34]. This will be a trial in which there will be a number of items of evidence that will be admissible against one but not the other accused. It will be necessary for the jury to understand clearly the case against each accused and the evidence that is available to be taken into account in relation to each accused and that which is not. That is not an unusual situation in joint trials of multiple accused. As Hunt J said in Middis, "some prejudice to one or other accused is inevitable in any joint trial".

36. [49]

    RM did not also seek a separate trial.

37. [50]

    Finally and although these considerations are not determinative, I have taken into account the practical aspects of a joint trial as compared to separate trials in these matters including what the length of separate trials might be and the need for some witnesses to give evidence more than once, if there are separate trials. I have also had regard to the fact that if there are separate trials, it appears, from the paragraph from Mr Eliopoulos’s affidavit quoted above, that SH’s ability to fund his trial may be prejudiced. These factors weigh to some extent in favour of a joint trial in the present matters.

38. [51]

    SH has not demonstrated that a joint trial would work a positive injustice and I am not of the opinion that the matters ought to be heard and determined separately in the interests of justice. In my view, a joint trial remains appropriate in all the circumstances. Accordingly, SH’s application for a separate trial should be dismissed.

39. [52]

    For all of these reasons, I order that the application of Sami Hamalainen for a separate trial is dismissed.

Judge alone trial application

1. [53]

   In general terms, RM was prepared to adopt and rely on the submissions made in relation to this application by SH’s counsel.

2. [54]

   The accused relied upon a combination of factors as supporting the conclusion that it is in the interests of justice for there to be a judge alone trial, even though it was acknowledged that each factor alone may not be sufficient to lead to the applications being successful.

3. [55]

   One factor that was said to be more significant was that a judge alone trial would obviate the need for separate trials. As I have rejected the application for separate trial for the reasons given above, this factor is inapplicable.

4. [56]

   It was also submitted that considerations including those identified in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 (Belghar) at [110], concerning the speed and flexibility of a judge alone trial, and at [112], concerning the benefit of a reasoned judgment, favoured a judge alone trial.

5. [57]

   The other factors relied upon included that:

   1. (1)

      this case did not involve factual issues requiring the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness;

   2. (2)

      evidence of bad character of the accused will be led in the present case, including evidence of this nature which may be led by RM in order to challenge the truthfulness of the admissions alleged to have been made by RM to RS1591297 at pars 71-87, on the basis that RM was seeking to intimidate that witness. The decision as to whether or not to lead this evidence was said to be made difficult if the trial is with a jury because the decision involves balancing the risk of potential prejudice in front of a jury against the risk of compromising the full and proper presentation of the case. It was submitted that an accused should not be put to such an election;

   3. (3)

      the situation was said to be further complicated by the late service of a statement from RS1915592. It is apparently RM’s case that it was this witness, not RM, who shot the deceased;

   4. (4)

      the motives alleged against SH involve other criminal activity including drug supply activities and an alleged rape by SH (although that will be subject of objection under s 137 of the Evidence Act if the matter proceeds by way of a jury trial);

   5. (5)

      there is a risk that the bad character evidence will be used impermissibly by the jury, not just as to motive, but as proof of the fact that SH organised the murder, by reasoning that SH is a drug dealer, drug dealers shoot other drug dealers to protect their interests, thus SH is more likely to have committed the offence because he is a drug dealer;

   6. (6)

      “the case for both accused involves a concession that both are guilty of being accessories after the fact to the murder of the deceased” and this, together with disclosure of bad character as members of an OMCG will be highly prejudicial;

   7. (7)

      there are benefits from a judge alone trial in that jurors may be affected by matters of possible prejudice but a judge is said to have the training and experience so as to be able to put aside matters of emotion;

   8. (8)

      the risk of evidence of bad character operating unfairly to an accused is alleviated in a judge alone trial by the exposure of the reasoning process which is involved in the provision of reasons for judgment by a judge;

   9. (9)

      adverse media coverage, such as has occurred in the present case in the past and is likely to occur during the trial, reinforces the risks associated with potential misuse of evidence of bad character by a jury;

   10. (10)

       the circumstances of the case involving a man being shot in his own home while his children were within ear-shot together with evidence of bad character is likely to overwhelm a jury so as to lead to difficulties dealing with this in a dispassionate manner;

   11. (11)

       given the animosity between numerous people in the Crown case and the accused, there is a real risk of entirely irrelevant evidence being given leading to the discharge of the jury which would not be a risk in a judge alone trial;

   12. (12)

       there are efficiencies available in a judge alone trial including that uncontested evidence is more easily and shortly given in documentary form.

6. [58]

   In addition, it was submitted that the prejudicial material in the present case would attract the same conclusion as reached by Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 (Simmons No 4) at [116] where it was held, in relation to what was described as “a most unpalatable defence” that:

7. [59]

   The submissions on behalf of SH and RM also drew attention to the comments concerning whether there is any difference in the relative ability of jurors and judges to assess credibility in Redman v R [2015] NSWCCA 110 at [14].

8. [60]

   The Crown submitted that some of the relevant principles could be derived from R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 and Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 (Farrugia). It was also noted that in RFK v R [2016] NSWCCA 116 at [42] and [48] it was observed that the decision in Redman was a case decided on its own facts, which are quite different from the present case.

9. [61]

   The Crown also noted the absence of specific material indicating how the accused would run their cases, and submitted that any prejudice could be adequately addressed by careful directions.

10. [62]

    Section 131 of the Criminal Procedure Act establishes the general position that criminal proceedings in the Supreme Court are to be tried by a jury, except as otherwise provided by Pt 3 of that Act. Part 3 contains, among others, ss 132 and 132A.

11. [63]

    Section 132A governs when and by whom an application for a judge alone trial may be made. That section relevantly provides:

12. [64]

    In the present case, the application was made more than 28 days before the date fixed for trial and all the accused have applied in respect of the only offences with which they are charged and which are being proceeded with at the trial. The Crown opposes the making of a trial by judge order

13. [65]

    In the circumstances of the present case, s 132 relevantly provides:

14. [66]

    The task of determining an application for a trial by judge order under s 132 should not be approached by reference to “presumptions” or “assumptions” in favour of a jury trial: Belghar at [96]; R v Villalon [2013] NSWSC 1516 (Villalon) at [20(i)].

15. [67]

    Nonetheless, the task cannot be undertaken without bearing in mind that trial by jury:

    1. (1)

       is the conventional approach and, in the absence of an order under s 132, is mandated by s 131: Farrugia at [9]; and

    2. (2)

       is underpinned by the public interest in protecting the citizen from the executive and judicial power of the State by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts: Farrugia at [10] citing McHugh J in Fittock v The Queen (2003) 217 CLR 508; [2003] HCA 19 at [23].

16. [68]

    The “interests of justice” test in s 132(4) confers a wide discretion on the Court determining the application: R v Stanley [2013] NSWCCA 124 at [23], R v Poynton (No. 3) [2017] NSWSC 1772 (Poynton) at [33].

17. [69]

    Forming a view as to what the interests of justice require involves balancing the interests of the parties and also larger questions of legal principle, the public interest and policy considerations, which include the role of juries in the administration of criminal justice: Landsman v R (2014) 88 NSWLR 543 at [69]; [2014] NSWCCA 328 (in a different but related context), Poynton at [36].

18. [70]

    The factors identified in s 132(5) acknowledge the importance of the application of objective community standards in the resolution of a range of factual issues, some only of which are expressly identified: Farrugia at [10], Poynton at [34] and the cases there cited. Where the trial involves an issue which may be informed by community standards or expectations, the interests of justice may be best served by utilising a jury of laypeople: Belghar at [96], Villalon at [20(iii)].

19. [71]

    Where resolution of factual issues turns upon an assessment of the credibility of a witness or witnesses, relying on the judgment and experience of a jury of laypeople may also be in the interests of justice: R v McNeil [2015] NSWSC 357 at [102]-[104]. Whether this is so will depend on the circumstances of the particular case. There are cases such as Redman v Rat [14], which question whether there is a clear consensus in Australian authorities that credibility issues in a trial militate in favour of a jury trial. Redman has, however, been held to be a case that, in any event, turned on its own facts: RFK v Rat [42] and [48]. The training and experience of a judge in deciding matters of credibility putting aside matters of emotion must be assessed against the benefit of the range of experience and training of each of the twelve members of the jury who can discuss together and are required to reach a unanimous verdict. It can be observed as a matter of common sense that bias, especially unconscious bias, may be less likely to affect a decision made by a group rather than a decision made by a single decision maker.

20. [72]

    The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the Court may take judicial notice, is not sufficient to justify the making of a trial by judge order and is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Belghar at [102], Villalon at [20(vii)].

21. [73]

    The Court should generally proceed on the basis that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result: Belghar at [107], Villalon at [20(viii)].

22. [74]

    Decided cases indicate that the situations where judge alone trials may be preferable include, without seeking to be restrictive:

    1. (1)

       lengthy complex trials involving significant disputes between experts; and

    2. (2)

       where a fair trial cannot be achieved with a jury because, for example, a particularly horrendous crime has inflamed public sentiment in a small community: Farrugia at [11], Poynton at [37].

23. [75]

    The accused acknowledged in their written submissions that the factors they identify, taken separately, may well not lead to the conclusion that a trial by judge alone was in the interests of justice.

24. [76]

    Although the charge of murder in the present matters does not involve the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness, the resolution of the factual issues will depend on the assessment of the credibility of witnesses. The actions and utterances to be considered in this regard are not specialised or scientific and do not appear to be likely to be more within the knowledge and experience of a judge rather than twelve laypersons, whose knowledge and experience may well be wider, if for no other reason than that there are twelve of them. In my view, the fact that many of the issues will turn on credibility is either neutral or may tend slightly in favour of a jury trial.

25. [77]

    It can be accepted that, given the context of the joint criminal enterprise alleged in the present case, there will be evidence led as to the involvement in motor cycle gangs, illicit drug related activity, unlawful violence and other similar matters on the part of some or all of the accused and the witnesses who are registered sources. This evidence can be characterised as evidence of bad character. That evidence may be led by the accused as well as the Crown. There is, therefore, a risk of potential prejudice in front of a jury and also a risk that a jury may reason impermissibly, as the accused contended in their submissions.

26. [78]

    Whichever form of trial is adopted that risk must be adequately managed so as to prevent there being an unfair and unjust trial. A trial by judge alone seeks to manage the risk by depending on: the judge’s training and experience in decision making; the requirement to explain his or her process of reasoning leading to the conclusions reached; and the judge complying with the obligations inherent in the judicial oath or affirmation. In a trial by jury, the risk is sought to be managed by depending on: the judge, with the assistance of counsel, crafting clear and careful instructions to the jury on how they are to approach their task, on what reasoning is impermissible and on what evidence they may rely; the jurors complying with those directions; and the jurors complying with the obligations inherent in the jury oath or affirmation.

27. [79]

    I do not accept that in cases involving motor cycle gangs, illicit drugs and violence, and where the evidence relied upon includes admissions and evidence from police informers, a fair trial can generally only be had if it is by judge alone. As explained by Hamill J in R v Qaumi (No 14) [2016] NSWSC 274 at [120] and [121], a jury trial in such cases can be conducted fairly and without injustice provided safeguards are put in place to ensure, as far as possible, that the jurors will act in accordance with their oaths and affirmations and will not be influenced by matters of emotion and prejudice and, in this regard, the law operates on the assumption that the juries generally obey and act upon the directions provided by the trial Judge. Further, the prejudicial evidence can be limited to what is necessary in the interests of justice, by the good sense of counsel involved and, where necessary, rulings excluding evidence, so as to minimise the risk of the jury being improperly influenced.

28. [80]

    Accordingly, I do not accept that the nature and extent of the evidence of bad character that might be led in the present matters itself justifies a finding that it is in the interests of justice for there to be a judge alone trial.

29. [81]

    There has been media coverage and social media comment in the present case in the past and there is likely to be further coverage and comment during the trial. This does create a risk that a jury might be influenced by such coverage and comment. The question of whether extensive media coverage means that a trial by judge alone is required in the interests of justice has recently been considered by Schmidt J in R v Ahmed [2019] NSWSC 55 (Ahmed). It is worthwhile quoting her Honour’s reasons at some length. She held:

30. [82]

    I note that a substantial part of the publicity surrounding the present matters occurred some time ago and is unlikely to be fresh in juror’s minds, if present at all. Nonetheless, I accept that there is likely to be coverage of the trial in the media and it has given rise to, and may well give rise to more, social media activity and comment.

31. [83]

    In relation to the capacity of current day juries to understand the nature of media reporting and of social media activity and comments and to comply with directions given to them during a trial that they are to disregard such reporting and comment and reach their decision only on the evidence before them, I respectfully adopt what was said by the English Court of Appeal, in R v Abu Hamza [2007] QB 659, and the reasoning of Schmidt J in Ahmed. The media and social media publicity and activity do not, in my view, require that the present matters be heard by a judge alone in the interests of justice.

32. [84]

    It can be accepted that a man being shot in his own home while his children are within ear-shot in a context that involves rival motor cycle gangs, illicit drug activity, violence and similar matters is confronting. Unfortunately, it is not, in my view, a set of circumstances so unusual, horrendous and shocking in our present society that a jury, properly instructed, would be overwhelmed and incapable of dealing with the case in a dispassionate manner.

33. [85]

    Furthermore, while there may be a risk of the animosity between witnesses and the accused leading to irrelevant evidence being given so that the jury might be required to be discharged, there is nothing at present to indicate that this risk is so great that the interests of justice require there to be a judge alone trial.

34. [86]

    I have taken into account the potential benefits of the speed and flexibility of a judge alone trial and of a reasoned judgment being given by the judge, when a trial proceeds without a jury. Against this must be weighed considerations such as the public interest in generally having trials on serious charges determined by representatives of the community who are unanimous in their verdicts to ensure that the executive and judicial power of the State is not amenable to being misused against citizens.

35. [87]

    Bearing in mind the principles identified above and the matters raised in submissions and balancing all the factors dealt with in the preceding paragraphs and the evidence, I do not consider it to be in the interests of justice to make a trial by judge order in the present matters.

36. [88]

    Accordingly, that order of the Court is that the applications of Robert McCloskey and Sami Hamalainen for a trial by judge order are dismissed.