R v AN; R v LM

1. [1]

   On 8 November 2021, the two accused, AN and LM (collectively “the accused”), were arraigned with respect to two charges contained in an amended indictment. The charges were identical for the two accused.

2. [2]

   Count 1 of the indictment charged the accused in the following terms:

3. [3]

   This charge was brought under s 86(3) Crimes Act 1900 (NSW), and shall hereafter be referred to as the “kidnapping charge”.

4. [4]

   The Director of Public Prosecutions further charged the accused under s 18(1)(a) of the Crimes Act. Count 2 was in the following terms:

5. [5]

   The accused pleaded guilty to the foundational offence under count 1 but not guilty to the charge of murder.

6. [6]

   The accused made an application for an order that they be tried (jointly) by a Judge alone (“trial by judge order”) pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). The application was opposed by the Crown.

7. [7]

   This judgment concerns the application for a trial by judge order.

Material before the Court

1. [8]

   The Crown produced a Court Book which contained a Crown case statement and a number of additional materials which in summary may be described as follows:

   1. (1)

      Table of “Grindr” conversations between AN and the deceased.

   2. (2)

      Two statements of from Detective Senior Sergeant Moon from the Wollongong Crimes Scene Section of the New South Wales Police, dated 30 May 2021 and 16 July 2021 respectively.

   3. (3)

      A certificate of expert evidence dated 31 May 2021, by Sergeant Catto-Pitkin of the Digital Forensics Unit, High Tech Crime Branch of the New South Wales Police.

   4. (4)

      A statement of 7 July 2020 from Senior Constable Tania Cajna of the Wollongong Crimes Scene Section of the New South Wales Police.

   5. (5)

      Photographic material.

   6. (6)

      ERISP with LM dated 13 February 2021.

   7. (7)

      Autopsy report dated 4 May 2020 by Dr Bernard I’Ons, forensic pathologist (“the I’Ons report”). The autopsy was carried out on 5 February 2020 by Dr I’Ons.

   8. (8)

      Statement of Dr I’Ons of 2 August 2021, responding to the expert report of Dr Johan Duflou, a forensic pathologist engaged by the defence.

   9. (9)

      A further statement of Dr I’Ons dated 2 August 2021 responding to report of Dr Olaf Drummer, forensic pathologist engaged by the Crown.

   10. (10)

       A report of Professor Drummer of 29 July 2021.

   11. (11)

       A report of Professor Johan Duflou dated 30 May 2021 (“the Duflou report”).

   12. (12)

       A report dated 28 June 2021 of Professor Iain McGregor forensic pharmacologist engaged by the defence (“the McGregor report”).

   13. (13)

       The Crown Case statement.

2. [9]

   The Crown produced a document entitled “Statement of Agreed Facts for Foundational Offence especially aggravated kidnapping (section 86(3) Crimes Act 1900 (NSW))”(“SOAF”).

3. [10]

   In support of the application, AN relied upon the affidavit of his instructing solicitor, Mr Wayne Boom, sworn 7 July 2021, which attached the following material:

   1. (1)

      a s 143 response dated 4 June 2021 denying the death was caused by AN (see s 143(1)(d) of the Criminal Procedure Act);

   2. (2)

      the Duflou report (see s 1431(h) of the Criminal Procedure Act).

   3. (3)

      an email by Mr Boom to Alistair Tonks of the Office of Director of Public Prosecutions dated 29 June 2021 annexing the McGregor report.

Submissions of the Parties

1. [11]

   In the written submissions filed on 21 September 2021 on behalf of AN by Clive Steirn SC the following submissions were, in summary, made:

   1. (1)

      The factual matrix contained in the Crown case based on the doctrine of joint criminal enterprise was “substantially accepted” by AN for the purposes of the present application.

   2. (2)

      What remained in dispute was the cause of death. There was a dispute about Dr I’Ons opinion as to whether the direct cause of death was craniofacial trauma with airway obstruction and the opinion that the deceased was in a prone position whilst restrained. There was also a dispute as to whether a contribution to the death of the deceased was existence of “a sustained attack” and the use of “significant force”.

   3. (3)

      Professor Drummond did not substantially disagree with the Duflou report. Thus, the issues in the trial are joined in a narrow and specific aspect of the Crown case as to the cause of death with opposing medical experts.

   4. (4)

      Where the issue for determination is a narrow one based on medical evidence, it is in the interests of justice that that matter be tried in a judge alone trial. The Crown was obliged to prove the cause of death of the deceased based on medical evidence.

   5. (5)

      This is particularly the case in the present matter as both of the accused “substantially" accepted the factual matrix contained in the Crown case (based on the doctrine of joint criminal enterprise).

   6. (6)

      Given the concessions by the accused as to factual issues, the limiting factors set out in s 132(5) of the Criminal Procedure Act militating against a judge alone trial are not engaged.

   7. (7)

      At the time of this submission, the kidnapping charge did not appear on the indictment as the amended indictment had not been lodged. Nevertheless, AN relied upon his intention to enter a plea to the kidnapping charge which, as noted, was subsequently entered.

   8. (8)

      Relying on R v Belghar [2012] NSWCCA 86 (“Belghar”), AN relied upon the following additional factors as favouring a judge alone trial:

   9. (9)

      Reliance was placed upon s 365 of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (“COVID-19 Emergency Act”). In that respect, emphasis was placed on the determination being based on the interests of justice.

   10. (10)

       By reliance upon R v Coleman [2020] ACTSC 97 (per Elkaim J) at [41] and R v Johnson [2020] NSWDC 153 (“Johnson”) at [21]-[25] per Grant DCJ, COVID-19 Emergency Act reflects an intention of the legislature that the business of the court is to continue.

   11. (11)

       There is an informed agreement from AN for a judge alone trial. Reliance was also placed upon the factors relied upon in Johnson which included the shortening of the state of suspense hanging over the head of the person who was presumed to be innocent and that an adjournment may result in an unacceptable delay.

2. [12]

   On 7 October 2021, AN made further submissions, largely responsive to the Crowns submissions to which I will refer below as follows.

3. [13]

   Senior counsel accepted the principles relating to murder stated by the Crown, namely, that the prosecutor must prove the acts of the accused pursuant to a joint criminal enterprise were a substantial and significant cause of death (a requirement which did not extend to the accused having to prove that the acts of the accused were the only, most important or only important cause).

4. [14]

   AN repeated a submission made in the written submissions of 21 September 2021 arising from the plea to the kidnapping charge as follows:

5. [15]

   In addition to the factual disputes earlier described, AN took objection to the following component of the Crown case statement:

6. [16]

   An objection was also taken to another component of the Crown case containing what was submitted was a hearsay assertion by the co-accused, LM, to his parents, which was not in furtherance of the joint criminal enterprise relied upon by the Crown. That passage was as follows:

7. [17]

   It was disputed that AN had failed to provide a “version of events”. The Crown had accepted that AN had admitted “the inculpatory representations made by him to his father at the time of his arrest”. This includes AN’s “acceptance and participation in the joint criminal enterprise as set out in the balance of the Crown case statement supporting the foundations charge of aggravated kidnapping”.

8. [18]

   AN did not accept that the disputed medical evidence as to the cause of death had any relevance to the application for a judge alone trial. The issue in relation to cause of death founds the very reason for the application for a judge alone trial. The determination as to cause of death forms no part of this application. The cause of death is a single issue which remains in dispute and which will be determined by the Court during the course of the trial which will follow, irrespective of whether the trial is by jury or by judge alone.

9. [19]

   AN filed a further submission on 4 November 2021. In that submission, AN “accepted the Crown facts as the [SOAF]” and stated there were “no disputed facts outside of the medical controversy”.

10. [20]

    As to the documents referred to in the SOAF there was no objection to the documents forming part of the agreed facts.

11. [21]

    Nevertheless, AN submitted that objection was taken to “pars 35-37 of the Crown case statement” and “the hearsay assertion” by LM (see [16] of this judgment).

12. [22]

    AN submitted that the accused did not accept “the facts” as it related to the charge of murder given the cause of death is in dispute. However, it was accepted that the Crown facts, so far as it relates to the foundational offence to which a plea of guilty has been entered, are relevantly before the Court. In oral submissions, Mr Steirn accepted that the SOAF would apply to both counts in the amended indictment.

13. [23]

    It was submitted that whether or not either of the accused would give evidence at the trial was an irrelevant consideration.

14. [24]

    The estimate for the trial was three weeks for a jury trial and five to seven days for a judge alone trial.

15. [25]

    The submissions for LM were in summary:

    1. (1)

       LM accepted the contents of the Crown case statement and the SOAF. Those facts are appropriate to be taken into consideration in the context of the second count as they relate to the foundational offence. It was anticipated that the parties will enter into an arrangement to formalise the SOAF. It was agreed that there was no disputed questions of fact outside the medical controversy.

    2. (2)

       It was submitted that there are no factual issues in the trial that require the application of objective community standards for the purposes of s 132.

    3. (3)

       The estimate given by AN for the length of the trial was adopted by LM.

    4. (4)

       The medical issues in the trial are complex. They are the very type of issues which case law says are better determined by a judge rather than a jury. In a judge alone trial, the Court will give its reasons which were available at large. The medical controversies in this case would not be easy for a jury.

16. [26]

    Whilst the Crown had originally submitted that the acceptance by the accused of the factual matrix in the Crown case was equivocal by the use of the words “substantially accepted by the accused”, it was acknowledged that there was acceptance of the SOAF and the objection to the tender documents in the SOAF had evaporated.

17. [27]

    However, the Crown submitted that the tribunal of fact would still need to draw inferences which are not the subject of the agreed facts in relation to whether the deceased was prone and the severity of the force of the assault. The role of LM in events at the crime scene and infliction of injuries and application of the taping is also a fact for determination.

18. [28]

    These considerations are relevant to but independent of expert opinion. Whilst the experts may comment on aspects of the crime scene, the Tribunal of fact will still be invited to draw inferences in relation to the positioning of the deceased, particularly concerning the compromise of his airways and the cause of death.

19. [29]

    Furthermore, it is still not known whether one of the accused will give evidence about what exactly transpired at the crime scene and that necessarily raises issues of credibility.

20. [30]

    AN had not provided a version of events other than inculpatory representations made by him to his father at the time of the arrest. No version was given by AN about what transpired at the crime scene and the resulting injuries sustained by the deceased including the application of tape to the body.

21. [31]

    The account given in his interview to police is inconsistent in a number of respects with participation in a joint criminal enterprise. His defence response was that he did not take place in a joint criminal enterprise.

22. [32]

    The issues to be determined by the Tribunal of fact are, therefore, much wider than has been presented by counsel for both accused. The determination of such issues will necessarily involve the drawing of inferences from circumstantial evidence as well as assessments of credibility and reliability should either or both accused give evidence. Such determinations and assessments are arguably more properly made using the collective wisdom of a jury of twelve.

23. [33]

    Whilst the causation issue involves consideration of expert opinions from Forensic Pathologists and Forensic Pharmacologists/Toxicologists, the evidence cannot be described as overly complex. The evidence is at a level of complexity that juries commonly encounter in criminal trials in this Court.

24. [34]

    The prosecution must prove that the acts of the accused pursuant to the joint criminal enterprise were a substantial or significant cause of death: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (“Royall”) at [411]-[412]. This does not require the prosecution to prove that the acts of the accused are the only cause, the most important cause or even the only important cause of death: Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11.

25. [35]

    The Crown submitted that the areas of controversy in the medical evidence are not beyond the capacity of ordinary people to grapple with. They are not so technical or complex that a jury would not be able to properly consider the evidence.

26. [36]

    Whilst the issues are wider than simply the causation of death, the trial estimate remains a maximum of four weeks.

27. [37]

    It was accepted that a jury trial may be longer than a trial by judge alone. It was not accepted however, that a jury trial would be three times greater than a trial by a judge alone. Overall, the Crown estimate as to the length is that the evidence would be completed within 5 to 10 days whether it be trial by judge alone or trial by jury.

28. [38]

    It has not been shown to be in the interests of justice for the court to grant the application and, accordingly, the application for trial by judge alone should be refused.

The SOAF

1. [39]

   I have taken the following facts from the SOAF (omitting references from tender documents).

2. [40]

   On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging the deceased and thereby lured the deceased from Canberra, ACT to Broulee on the NSW South Coast, with the promise of a sexual encounter.

3. [41]

   AN and LM and a co-accused William Delahey (“Delahey”) (known by the nickname “Grimbo”) then participated in a joint criminal enterprise to commit the foundational offence.

4. [42]

   The Grindr messaging commenced with a picture message (detail unknown) sent by the deceased using the Grindr profile name “OLDA4YOUNGER” (with profile ID 268666533) to the profile name “Kodo” (the Grindr profile name used by AN, with profile ID 256709151) at 12.59 on Saturday 1 February 2020. At 14:49:13 on the same day “Kodo” (AN) replied with a picture message (detail unknown). At 15:43:43 the deceased sent a message to AN saying, “I’m in Canberra and where you located? Do u host? Drive?”. At 15:46:26 AN replied saying, “Hi I’m at Batemans Bay here I can’t drive would you e (sic) able to travel here”. The deceased replied at 15:46:04 saying, “Can you host or can you share the cost of a hotel” and “I could travel”. At 16:23:45 the deceased enquired of AN “Gay or bi?” and at 16:23:56 “You 18 or younger”. At 16:24:33 AN responded “Im gay and 18”.

5. [43]

   The Grindr chat, including the arrangement to meet in Broulee, continued throughout the night on Saturday 1 February and into Sunday 2 February 2020.

6. [44]

   Shortly before 03:00 on Sunday 2 February 2020, the deceased left the apartment in Canberra he was temporarily residing in. Later that morning (the precise time being unknown) he commenced his journey to Broulee. At approximately 09:30 the deceased arrived at Braidwood where he stopped for some time (CCTV footage captured him at the Braidwood Bakery between 09:37-10:18). At 11:24:44 the deceased sent a message via Grindr to AN saying, “I’m leaving Braidwood now”. At 11:26:36 AN responded saying, “Okay cook (sic) see you soon”. Immediately after this, at 11:26, AN attempted to call Delahey on his mobile phone, but there was no answer.

7. [45]

   The deceased travelled from Braidwood to Batemans Bay (approximately 50 mins drive). At 12:46 he messaged AN “i’m in the bay now I'll be about 10 minutes before I leave”. There were no further messages sent by the deceased to AN until 14:30:23. In the meantime, the deceased communicated with a friend in Canberra about borrowing some money to book a motel. Whilst the deceased was in Batemans Bay making these arrangements, AN continued to send the deceased Grindr messages to ascertain his whereabouts between 12:49:41 and 14:25:06 (see Grindr message log).

8. [46]

   Meanwhile, at 12:35, Delahey sent a text to LM asking him whether he wanted to “pop by for a training session”. A short time later LM went to Delahey’s house at 8 Massey Street, Broulee. After the deceased sent the message to AN at 12:46:05 saying he was “in the bay” and would “be about 10 minutes”, AN replied at 12:49:41 saying, “Okay cool”. At 13:02 AN performed an internet search for “Does holding a metal object in your hand make a difference to your punch”. At 13:04 AN again called Delahey on his mobile phone. This conversation lasted 1 minute and 13 seconds. AN then went to join LM and Delahey at 8 Massey Street, Broulee.

9. [47]

   At some stage during these interactions, the three accused discussed the plan for the three of them to tie up (detain) and “bash” (inflict actual bodily harm to) the deceased along a powerline easement south of the Broulee township.

10. [48]

    The three accused discussed meeting at the 3rd or 4th power pole along the powerline easement. AN was to meet with the deceased at the Imlay Street tennis courts and bring him down to the 3rd or 4th power pole. There LM and Delahey would join AN in carrying out the agreed enterprise.

11. [49]

    In addition to mobile phone contact, the three accused exchanged messages on Snapchat. This was the main application accessed by the accused persons to communicate on this date. The data indicates that there were several communications sent from LM’s phone, including to AN (“alxnimmo”) at 15:16 and 15:27. The contents of Snapchat messages are not available. There was no further communication after 15:27, which was the time that the deceased arrived in Imlay Street, Broulee

12. [50]

    At 14:30:23 the deceased sent a message to AN on Grindr that said, inter alia, “…I am on the way to pick you up…”. AN responded at 14:34:18 saying, “Okay cook (sic - cool) sounds good when you come to Broulee and meet me on Grant Street”.

13. [51]

    At an estimated time of 14:40, three males (AN, LM and Delahey) were witnessed leaving the vicinity of 8 Massey Street, Broulee. At the intersection with Grant Street, two males (LM and Delahey) turned southwest along Grant Street towards the McNee Street intersection and the powerline easement. One of these males was seen carrying a bag. LM had his mobile phone on him. The third male (AN) walked in the opposite direction, northeast along Grant Street towards the Imlay Street intersection (witnesses Owen Keane, Melinda Keane and Kiara Keane).

14. [52]

    At 14:41:31 AN sent a message to the deceased on Grindr saying “Actually no meet me at Imlay Street”.

15. [53]

    Between 14:43 and 14:44 a CCTV camera attached to The Lodge at 18 Imlay Street, Broulee (“The Lodge CCTV”) captured AN walking northeast along the eastern side of Grant Street before crossing Grant Street at the intersection and walking west along Imlay Street in the direction of the tennis courts. At 14:45:29, AN sent a message to the deceased on Grindr saying, “I’m waiting at a bench next to the tennis courts that are on Imlay Street Broulee”.

16. [54]

    At 14:51:08 the deceased sent a message to “Kodo” on Grindr saying, “Leaving now” and AN responded “Okay see you soon”.

17. [55]

    At 14:51 and 14:52 AN phoned telephone number 0456250894 (missed call). This was an attempt to call LM, but the wrong number was dialled (LM mobile number 0456250094). At 14:53 AN called 0491467603 (Delahey’s number) but the call went unanswered.

18. [56]

    Between 14:53 and 15:11 the deceased and AN continued to exchange messages over Grindr. The deceased suggested going straight to a hotel, but AN pleaded with him to instead go to a location where he had “a little stash hidden”. At 15:04:24 AN sent a message to the deceased saying, “but pleaaaasee I wanna do it here and then suck you off I’ve always wanted to in this spot”. At 15:10:31 the deceased agreed.

19. [57]

    At 15:25 the deceased’s purple-coloured Honda Jazz was captured on The Lodge CCTV. The Honda was turning into Imlay Street from Grant Street and travelling west towards the tennis courts.

20. [58]

    Further messages were exchanged between AN and the deceased. At 15:26:09 AN wrote, “did you just go past?” and at 15:27:09, “You went past me”. At 15:27:43 the deceased responded, “yeah I thought you may want to avoid…so if you’re cool to walk across this walk across now”. AN got into the deceased’s car.

21. [59]

    At 15:29, the deceased’s car was captured again on The Lodge CCTV leaving Imlay Street and turning south onto Grant Street (in the direction of the crime scene).

22. [60]

    A subsequent drive through performed by investigating police via George Bass Drive demonstrates the route travelled by the deceased and AN in the deceased’s car from their meeting point at the tennis courts in Imlay Street to the crime scene (via Grant Street, Broulee Road and then George Bass Drive and a fire trail off George Bass Drive leading to the powerline easement “the fire trail”), a total distance of 1.85km, driven at an average speed of approximately 28 km/h, takes approximately 4 minutes (4 minutes, 2 seconds).

23. [61]

    At about 15:33, the deceased and AN arrived at a location on the powerline easement running off Grant Street, Broulee, near to the third power pole from the Grant Street end. The location of the crime scene is approximately 300 metres southwest from the Grant Street intersection and approximately 220 metres northeast of the fire trail intersection.

24. [62]

    Meanwhile, after leaving Delahey’s home at around 14:40, LM and Delahey walked from Delahey’s home at 8 Massey Street, Broulee, turned left onto Grant Street and continued in the direction of the powerline easement.

25. [63]

    At 16:45 Marc Devlin drove his Toyota Hilux twin cab ute onto the Grant Street end of the powerline easement to take his dog for a run. He did not notice any people in the area. As he drove south along the easement, he noticed a small purple-coloured Honda Jazz with ACT registration number YFD00H (the deceased’s car) located approximately 300 metres along the easement from the Grant Street end. Mr Devlin stopped driving, got out of his ute, and saw the deceased laying on the ground to the west of the Honda. He video-recorded the scene with his phone. He observed that there was brown packing tape wrapped around the deceased’s ankles, around his chin and neck area and he had his hands behind his back. Mr Devlin noticed the deceased appeared to be dead. He rang 000 (at 4:53 PM (16:53) on Mr Devlin’s mobile phone call log; 4:54 PM (16:54) recorded at NSW Police [Oak Flats] Radio Operations Centre). He also observed a patch of ground in front of the deceased’s car which appeared to be disturbed as if there had been a scuffle, and there were apparent drag marks from that disturbed area to the location of the deceased.

26. [64]

    At autopsy it was determined that the deceased sustained multiple and significant blunt force craniofacial injuries, including widespread abrasions, contusions, lacerations, and a fractured nose. The distribution indicates multiple blunt force injuries to the sides of the head, forehead, cheeks, nose, mouth, eyes, and left ear. There were horizontal lacerations below each eye associated with contusions and longitudinal scrape abrasions of the forehead which were also present on the left shoulder and left knee.

27. [65]

    Within the subcutaneous tissue of the left and right side of the head there were large contusions (left greater than right). There were large contusions within the left and right temporalis muscles (left greater than right).

28. [66]

    Underlying the longitudinal scrape abrasions on the left shoulder was a contusion of the left deltoid muscle. Below a faint contusion on the skin of the left forearm were two large well defined contusions involving the fatty tissue and muscle. Underlying the longitudinal scrape abrasions on the skin of the left knee was a contusion within the patellar tendon.

29. [67]

    Within the mouth there was a large contusion and laceration of the upper frenulum with a further contusion of the left buccal mucosa at the corner of the mouth. The nasal bones were fractured.

30. [68]

    On the left side of the neck there was a well-defined, thin abrasion. Inferior to this was an ill-defined contusion which involved the underlying subcutaneous tissue, the left platysma muscle and left sternocleidomastoid muscle.

Statutory Provisions and Relevant Principles

1. [69]

   Section 86(1) and (3) of the Crimes Act are as follows:

2. [70]

   As mentioned, a plea was entered as to the first count under s 86(3).

3. [71]

   The central issue in the proceedings is whether the deceased died as a consequence of the acts performed by the accused pursuant to the joint criminal enterprise. It was common ground that the prosecution must prove, in order to establish count 2, that the acts of the accused pursuant to the enterprise were a substantial or significant cause of death: Royall.

4. [72]

   The provisions of s 132 of the Criminal Procedure Act are in the following terms:

5. [73]

   The Criminal Procedure Act was amended by the COVID-19 Emergency Act which commenced on 25 March 2020 and introduced Pt 5 of the Act, entitled “Response to COVID-19 pandemic”.

6. [74]

   The purpose of Pt 5 is provided by s 353, which states:

7. [75]

   Part 5 Div 4 and s 365 are both entitled “Judge alone trials”. Section 365 is in the following terms:

8. [76]

   McClellan CJ at CL said in Belghar at [110]:

9. [77]

   His Honour then went on to expressly reject the proposition that considerations of overall efficiency of the operation of the judicial system are relevant to determining an application pursuant to section 132(1) at [111]:

10. [78]

    McClellan CJ at CL also made the following observations in Belgher which are relevant in the present matter (at [112]-[113]):

11. [79]

    Bellew J in R v Sean Lee King [2013] NSWSC 448 at [72], considered the judgment of McClellan CJ at CL in Belghar, and determined that the efficiencies of a judge alone trial did not support a trial by judge order in that case where:

12. [80]

    Basten JA (with whom Button J agreed) observed in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 at [9]-[11]:

13. [81]

    Campbell J stated in R v McKnight [2014] NSWSC 398 at [9]:

14. [82]

    As Barr AJ (Macfarlan JA and Campbell J agreeing) said in R v Stanley [2013] NSWCCA 124 at [42] and [43]:

15. [83]

    The COVID-19 Emergency Act inserted s 365 into the Act. This was discussed by R A Hulme J in R v Kerollos [2020] NSWSC 1758 at [51]-[54]:

16. [84]

    The Crown submitted that the present situation of jury trials in this Court is much the same as discussed by Wilson J in R v Camilleri [2020] NSWSC 951 (“Camilleri”) where jury trials had recommenced in 2020. Her Honour at [72]-[75] stated:

17. [85]

    Further, Wilson J at [87]-[89] stated:

18. [86]

    N Adams J in R v Warren Scott [2021] NSWSC 1004 (“Warren Scott”) addressed the suspension of jury trials caused by the pandemic and the backlog that will result at [51] and [53]-[54] extracted below:

19. [87]

    N Adams J also addressed the delay if the trial were to proceed by jury and also the interests of justice at [57]:

CONSIDERATION

1. [88]

   AN executed an election dated 20 September 2021 and filed on 21 September 2021 that he had sought and received legal advice as to his application for trial by judge alone. LM executed an election under s 132(1) dated and filed on 20 July 2021 that he had sought and received legal advice as to his application for a trial by judge alone.

2. [89]

   As the application for a judge alone trial is opposed by the Crown, the provisions of s 132(4) of the Criminal Procedure Act are activated such that the Court is conferred a discretion to make a trial by judge alone order if the Court considers it is in the “interests of justice” to do so. A consideration in the exercise of that discretion is whether the trial will involve a factual issue that requires the application of community standards including issues of reasonableness, indecency and dangerousness. The Court may refuse to make an order where a factual issue requiring the application of such standards exists: s 132(5).

3. [90]

   I agree with N Adams J in Warren Scott that there is nothing in the statutory language of s 131 of the Criminal Procedure Act (or s 132 or 132A) which creates a presumption in favour of trial by jury that must be resolved before an order for trial by judge alone can be made: at [44].

4. [91]

   I accept the submission of the Crown that some factual issues may remain at trial which involve the drawing of inferences from circumstantial evidence such as whether the deceased was prone and the severity of the force of the assault. The role of the accused in events at the crime scene and infliction of injuries and application of the tape is also a fact for determination.

5. [92]

   Those matters conceivably involve the application of community standards for the purposes of s 132(5), although they do not constitute factors strongly pointing to a trial by jury as was discussed, for example, by Wilson J with respect to the partial defence of substantial impairment in Camilleri at [67]-[68].

6. [93]

   However, there were significant issues militating in favour of a judge alone trial having regards to the “interests of justice”. That expression was discussed by Wilson J in R v Hadler [2018] NSWSC 1151 (“Hadler”) at [62].

7. [94]

   First, even allowing for the area where inferences may be required to be drawn, there are very limited matters in dispute: Hadler at [41]-[42].

8. [95]

   The central issue in dispute is medical causation. That dispute is bifold - whether the acts of the accused in carrying out the joint criminal enterprise (specifically aggravated kidnapping) were a substantial or significant cause of the death of the deceased and is there a reasonably possibility that the death was caused by methamphetamine toxicity level.

9. [96]

   Secondly, I do not accept the submissions of the Crown that the medical evidence is not “overly complex” by the standards of medical evidence often encountered by juries. There are some complexities involved in the medical issues.

10. [97]

    Whilst in a highly summarised form, the following schedule prepared by the Crown gives a broad indication of the nature of the medical controversies.

11. [98]

    I also accept the submissions of the accused that the availability reasons in this matter (and in that context) is a consideration pointing to a judge alone trial as discussed in Belghar at [113].

12. [99]

    Attention must also be given to the provisions of s 365 of the Criminal Procedure Act which, as was stated in Camilleri (at [72]), mirrors s 132 “to an extent” but does not include a provision as to s 132(5), even though the “interests of justice” test is relevant pursuant to s 365(2)(b).

13. [100]

    As mentioned, the Crown submitted that the circumstances presently prevailing in the community, vis-à-vis the emergency caused by the COVID 19 pandemic (see s 353) are similar to those discussed in Camilleri because jury trials are again an available option, and hence the focus should be upon the provisions of s 132 (see Camilleri at [75]).

14. [101]

    Drawing parallels between the provision existing at the time of Camilleri is a difficult and ultimately an unproductive process particularly in the light of the unpredictable nature of the pandemic. It is true jury trials have recommenced in this Court but I consider that the most important consideration in the present context is that discussed in R v Jaghbir (No 2) [2020] NSWSC 955 and Kerollos, namely, the potential for a significant delay in the trial if it were to proceed by a jury trial and the impact upon other jury trials.

15. [102]

    Even accepting the Crown estimate for the trial (being 5 to 10 days irrespective of the trial being judge alone or jury), there will, in my view, be a significantly greater delay in the trial being heard by a jury than by judge alone in the circumstances presently prevailing after the recommencement of trials. This consideration has even greater force by virtue of the accused being juveniles.

16. [103]

    Further, and as noted in Kerollos, the omissions of the s 132(5) considerations from s 365 was designed to enable more judge alone trials to proceed until the pandemic is resolved, although the applications for a judge alone trial are made under s 132 and must be delivered under that provision (Kerollos at [51]-[54]).

17. [104]

    In all of the circumstances, I am satisfied that it is in the interests of justice that this trial be heard by judge alone.

ORDERS

1. [105]

   Pursuant to s 132(4) of the Criminal Procedure Act the Court orders that the trial of AN and LM on the amended indictment be heard by judge alone.