R v McNeil

JOHNSON J: By Notice of Motion filed on 30 January 2015, the Applicant, Shaun Stuart McNeil, makes application under s.132 Criminal Procedure Act 1986 to be tried by a Judge alone.

The Applicant has completed an election under s.132(1) dated 29 January 2015, which certifies that he has received advice from his legal representatives in relation to the effect of an order for trial by Judge alone. Accordingly, the requirement in s.132(6) is satisfied.

The Crown does not agree to the Applicant being tried by a Judge alone. It falls to the Court to determine whether an order under s.132 should be made in the circumstances of this case.

On 5 December 2014, the Applicant was arraigned on an indictment containing the following counts:

On arraignment, the Applicant pleaded guilty to Counts 2 and 3, and not guilty to each of Counts 1, 4 and 5.

The trial of the Applicant is fixed to commence at the Supreme Court in Sydney on 25 May 2015.

As the application for an order under s.132 was brought more than 28 days before the date fixed for the trial in this Court, the Applicant does not require the leave of the Court to make the application: s.132A(1) Criminal Procedure Act 1986.

Although the s.132 application is proceeding before me, I will not be the trial Judge.

The bringing of the application in this way, well in advance of the trial, accords with an apparent statutory purpose that an application for a Judge-alone trial should be made (at least ordinarily) without knowing the identity of the trial Judge.

In the course of the second reading speech for the Courts and Crimes Legislation Further Amendment Bill 2010, which introduced s.132A, the then Attorney General, Mr Hatzistergos, said (Hansard, Legislative Council, 24 November 2010):

It has been observed that earlier versions of ss.132-132A had been drafted to avoid the appearance that the accused person was making an election in the light of the knowledge of the identity of the trial Judge: R v Perry (1993) 29 NSWLR 589 at 594; R v Coles (1993) 31 NSWLR 550 at 552-553; R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [20]-[29].

The hearing of the application proceeded on 30 March 2015. At the commencement of the hearing, an order was made, until further order of the Court, prohibiting publication of the fact that this application was being made and of the evidence and submissions made on the application.

Mr Smith SC, for the Applicant, read the affidavits of Daniel Covington affirmed 30 January 2015 and 9 March 2015. These affidavits annexed copies of a substantial volume of media publicity concerning the Applicant, published in both hard copy and electronic form. In addition, the Applicant tendered a Google search of the name “Shaun McNeil” conducted in Court on 30 March 2015 (Exhibit A) and a list of videos connected with that Google search (Exhibit B). An excerpt from the Channel 7 “Sunrise” program in early January 2014 was played in Court.

The Crown read the affidavit of Jennifer Price sworn 26 March 2015, which related to a number of items of media publicity concerning the Applicant. In addition, the Crown tendered the Crown Case Statement (Exhibit 1), paragraphs 2-13 of the Crown submissions which constituted a form of revised Crown Case Statement (Exhibit 2), a disk containing a compilation of CCTV footage recorded on 31 December 2013 (Exhibit 3) and a sketch plan of Victoria Street, Potts Point (Exhibit 4).

Exhibit 3 was played to the Court at the hearing.

There was no oral evidence on the application. Detailed and helpful written submissions had been filed prior to the hearing on behalf of the Applicant and the Crown and counsel spoke to these submissions.

The Crown case against the Applicant was described in the following way at paragraphs 2-31 of the Crown written submissions (Exhibit 2):

Mr Smith SC informed the Court of what he expected to be the issues at trial.

After noting the pleas of guilty which had been entered in response to Counts 2 and 3, Mr Smith SC continued (T17.8-47, 30 March 2015):

With respect to the statutory alternative of manslaughter and the concept of dangerousness, Mr Smith SC said (T22.47-23.8, 30 March 2015):

Mr Smith SC returned to the issue of self-defence in the following way (T23.14-36, 30 March 2015):

It will be appropriate to keep these indications in mind when considering a number of submissions raised on the present application.

Section 131 Criminal Procedure Act 1986 provides as follows:

Section 132 provides:

As will be seen, s.132(4) and (5) are the critical provisions on this application. Section 132(7) does not arise in this case.

Section 132A is in the following terms:

It has been said that, despite the terms of s.131, there is no presumption that a criminal trial should proceed with a jury, thereby casting a burden of proof on an applicant under s.132 to displace such a presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25 [96], 29-30 [118]; R v Stanley [2013] NSWCCA 124 at [42]; R v Villalon [2013] NSWSC 1516 at [20].

That does not mean, however, that the choice between trial by jury and trial by Judge alone commences with a blank canvas. The Courts have recognised the important role of juries, drawn from the community, in the administration of criminal justice in this State.

In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ (Simpson and Price JJ agreeing) said at 262 [24]:

Although this statement of Spigelman CJ was made in the context of a case where s.132 in its earlier form was under consideration (where the Crown could veto a Judge-alone application by an accused person), the sentiments there expressed remain helpful.

Observations made by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517, in the context of a civil case, have been cited regularly in decisions under s.132. The Chief Justice said at 521 [7]:

Considerations of the type referred to in these statements from R v Jamal and Swain v Waverley Municipal Council constitute an important factor in the exercise of discretion under s.132(4).

Although a s.132 applicant does not carry a burden of proof, he or she does bear an evidentiary burden: R v Stanley at [42].

Section 132(4) identifies the test to be applied on an application such as this. The Court may make an order for trial by Judge alone “if it considers it is in the interests of justice to do so”. That formulation confers a wide discretion on the Judge determining the application: R v Stanley at [23].

Section 132(5) is not an exhaustive statement of the circumstances in which an order may be refused. Rather, it provides illustrations of circumstances in which refusal may occur. The legislature has provided some specific examples to be considered in this respect. Section 132(5) acknowledges that, when considering where the interests of justice lie, it will be relevant that 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 lay people: R v Belghar at 25 [96]; R v Villalon at [20].

Submissions were made for the Applicant that the absence of words such as “intention” and “credibility” from s.132(5) was noteworthy and indicated a legislative intention to omit factors of that type as examples of “objective community standards”.

I will refer a little later to a number of decisions where “intention” has been considered in this context. For the moment, I observe that it would, in my view, be erroneous to read s.132(5) in a manner inconsistent with its terms. There may be a myriad of issues which arise in a criminal trial which may fall for consideration on a s.132 application. Section 132(5) should be construed as containing a number of illustrations which the legislature considered were worthy of mention. However, the test to be applied is the interests of justice test posed in s.132(4), with that test to be considered in the context of the particular case.

In forming a view as to what the interests of justice require, a balancing of various interests is required, including the interests of the parties and also larger questions of legal principle, the public interest and policy considerations: Landsman v R [2014] NSWCCA 328 at [69]. The important role of juries in the administration of criminal justice (mentioned at [30]-[33]) may be seen as touching issues of policy and the public interest, which arise for consideration in determining what the interests of justice require.

In R v Stanley, Barr AJ (Macfarlan JA and Campbell J agreeing) said at [42]-[43]:

I will refer to statements emerging from other authorities, in the context of addressing particular issues raised on the application.

The principal issue advanced by the Applicant on the s.132 application was the prejudicial media publicity concerning the Applicant and his alleged involvement in these offences.

It is not necessary to recite in detail the written and oral submissions made on behalf of the Applicant and the Crown.

Put shortly, Mr Smith SC submitted that the media publicity, in both hard copy and electronic form, surrounding the events giving rise to this trial is such that members of a jury panel would undoubtedly have been exposed to it. The publicity includes images of the Applicant, details of his criminal history and commentary arising from the public controversy concerning so-called one punch attacks in the Kings Cross area in 2013.

Senior counsel for the Applicant submitted that the media publicity suggested violent and dishonest tendencies on the part of the Applicant, often linked with inflammatory images of him. Amongst the media publicity was reference to the fact that one of his earlier convictions was for assault upon his partner, Ms Walker, who was to be a Crown witness in the trial.

It was emphasised for the Applicant that this material was readily available now in electronic form. The ease and speed with which it could be accessed, even after a jury is empanelled, it was submitted, speaks to the real and potential prejudice to the Applicant in a jury trial. It was submitted that carefully crafted directions cannot cure the prejudice to the Applicant.

The Crown acknowledged that there was a substantial volume of prejudicial media publicity surrounding the arrest and charging of the Applicant. It was emphasised, however, that the media publicity in evidence occurred very largely in the period between January and March 2014.

The Crown pointed to some parts of the electronic commentary concerning the Applicant which was said to be puerile and, using the words of Harrison J in R v Abrahams [2013] NSWSC 729; 230 A Crim R 74 at 94 [62], “irrational and suspect musings of faceless people intent on mischief”.

The Crown pointed to other parts of the media publicity, which concerned broader issues of public interest concerning the consumption and supply of alcohol in the Kings Cross area, and its interaction with violent incidents. It was submitted that public discussion of this sort was to be expected, and was also confined largely to the period up to March 2014.

The Crown emphasised the significant passage of time since the material in question was first published, and the availability and capacity of jury directions to address concerns which the Applicant may have.

Reference was made to s.68C Jury Act 1977 which would apply to the jury once empanelled, thereby prohibiting any enquiry, including internet searching, during the course of the trial.

It is appropriate to provide some examples of the media publicity to which the Court was taken on the hearing of this application, to give the flavour of the material relied upon by the Applicant.

The material falls into several categories:

An online article of “The Daily Telegraph” of 1 January 2014, reporting the Applicant’s first court appearance, stated (Annexure A, affidavit, Daniel Covington, 30 January 2015):

The Applicant’s Facebook page included words said to have been written by the Applicant (Annexure B, page 6):

A later entry on www.smh.com.au on 3 January 2014 (Annexure C, page 2) asserted that the words in the preceding paragraph were uploaded to the Facebook page on Christmas day, and were sourced from Heath Ledger’s character “The Joker” in the movie “Batman”.

In the same article, the following appeared:

A “Daily Telegraph” online article on 4 January 2014 included the following (Annexure H, page 3):

The same article referred to the Applicant’s offence allegedly committed against his partner, Ms Walker (Annexure H, pages 6-7):

A newspaper article in “The Daily Telegraph” on 2 January 2014 contained extensive coverage (including photographs) over several pages, of the Applicant and Daniel Christie. One article concerning the Applicant was headed (Annexure V):

A newspaper article in “The Daily Telegraph” on 3 January 2014 included the following concerning the Applicant’s assault on Ms Walker (Annexure Z):

As mentioned earlier, a video clip of the Channel 7 “Sunrise” program in early January 2014 was played in Court (Annexure R). The item concerning the Applicant included the following discussion:

The fictional Facebook page (mentioned at [52](d) above) contains comments, as does a website (Reddit Australia) where people post comments about particular topics (Annexures AG, AI, Daniel Covington affidavit, 30 January 2015; Annexure B, Daniel Covington affidavit, 9 March 2015). Examples of these are:

Reference was made as well to the second reading speech for the Crimes Amendment (Intoxication) Bill 2014, which included the following comments by the Attorney General (Hansard, Legislative Assembly, 26 February 2014):

Adverse and sensational media publicity occurs from time to time in the context of cases which have achieved some notoriety. Spigelman CJ touched upon some of these in R v Jamal at 261 [16]:

The Chief Justice continued in R v Jamal, emphasising that the Courts “have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice”. The Chief Justice said at 261-262 [17]-[21]:

The lapse of time between media publicity and the trial itself is a significant factor. In Montgomery v HM Advocate [2003] 1 AC 641, Lord Hope of Craighead said at 673:

In Skaf v R [2008] NSWCCA 303, the Court of Criminal Appeal (McClellan CJ at CL, Hidden and Howie JJ) referred to the new dimension flowing from the internet in the area of media publicity. Their Honours said at [27]-[28]:

Reference should be made at this point to s.68C Jury Act 1977, which provides:

In Skaf v R, their Honours returned to the internet, and the role of s.68C Jury Act 1977, at [46]:

The vast bulk of hard copy and electronic reporting of this case occurred in January, February and March 2014. There was some limited coverage in November 2014 of the fact that the Applicant had been committed for trial (Annexures Q, T, BB-BE, BQ-BS, Affidavit, Daniel Covington, 30 January 2015).

The fictional Facebook page and the comments on the Reddit Australia site do not, in my view, loom large on the present application. The description given by Harrison J in R v Abrahams to similar material is apt to this matter (see [47] above).

I accept that the publicity in the period January to March 2014 was very extensive and strong in content. It was prejudicial to the Applicant in a number of respects, including reference to his criminal history.

The publication of the criminal history of an accused person or other adverse material about that person has, in the past, attracted the law of contempt: Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 149-151; Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 21 April 1988, unreported, BC8802019); Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 24 June 1988, unreported, BC8801793). Application of the Bread Manufacturers principle (Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR NSW 242) has been accepted in contempt cases where matters of public interest are being discussed: Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney-General (NSW) v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695).

However, publication on the internet of the criminal history of an accused person, and the fact that a jury member had knowledge of past convictions or of alleged criminal behaviour on the part of an accused person, is not regarded necessarily as being sufficient to establish bias: R v K [2003] NSWCCA 406; 59 NSWLR 431 at 446 [67]; R v King [2013] NSWSC 448; 228 A Crim R 406 at 417 [60].

It is necessary to have regard, in particular, to the passage of time since the publications were made.

As was said in Skaf v R at [27] (see [67 above]), the age of the internet means that what was once newspaper, television and radio coverage that faded in time, could now see the very same articles and programs electronically available via the internet.

I do not consider that the media publicity, as strong as it was, is a decisive consideration in circumstances where some 14 months would have passed between the end of that phase in March 2014 (subject to limited coverage of the committal proceedings) and the commencement of the trial in late May 2015.

The circumstances of current concern relate to:

The short answer to the second area is that the jury as selected will have passed through a process, prior to empanelment, where it may be expected that the trial Judge will explore this issue and any difficulty that potential jurors may have in fairly determining the case: R v Stanley at [35]. The empanelled jury will be subject to s.68C Jury Act 1977, and directions which the trial Judge will give during the trial itself. As the Court of Criminal Appeal observed in Skaf v R at [46] (see [69] above), the existence of s.68C, and the giving of judicial directions to the jury, constitute an appropriate response to the second area of concern.

As Basten JA (Bathurst CJ and Whealy JA agreeing) observed in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at 69-70 [62]-[63]:

The first area of concern (at [78](a)) gives rise to different considerations. Is there a realistic prospect that members of the public, who may be on the jury panel, will conduct electronic searches concerning the Applicant between now and the time of the trial?

It is difficult to see that any recent or current event would be likely to trigger electronic searching of that type.

It may be said that members of the jury panel might consider such an enquiry if there is some media publicity of the forthcoming trial of the Applicant. Is there any step which the Court may take to allay concerns which may arise in this respect in accordance with what was said in R v Stanley at [43] (see [39] above)?

An approach which is open to the Court is to make an order prohibiting publication of the pending trial of the Applicant, with such an order to remain in place until such time as the trial Judge has made any other order once the trial is underway. This may be accompanied by a pseudonym order so that the Applicant’s name will not appear in the Court list. Orders of this type may operate to prevent media publicity itself becoming a trigger to electronic searching by members of the community, who may be members of the jury panel.

I am satisfied that a combination of steps may be taken to guard against the impact of previous adverse media publicity in the circumstances of this case. I do not consider that the media publicity requires, in the interests of justice, an order for trial by Judge alone in this case.

It will be necessary to consider the discretionary question posed by s.132(4) and (5) by reference to the cumulative assessment of issues raised in support of the application. For the moment, however, the critical aspect of the application based on adverse media publicity does not, in my view, lead to an order for trial by Judge alone.

Mr Smith SC outlined the way in which intention would be an issue in the trial. If the Crown established that it was the Applicant who struck a blow to the head of Daniel Christie then, before a conviction for murder could result, it would be necessary for the Crown to prove beyond reasonable doubt that the Applicant struck Daniel Christie with intent to inflict grievous bodily harm: s.18(1) Crimes Act 1900.

Mr Smith SC advanced a submission that intention did not fall within s.132(5). He relied upon certain authority in support of this proposition, and submitted that other cases which had found to the contrary ought not be followed.

The Crown submitted that the intention of the Applicant when striking Daniel Christie was an issue in the trial, and that the determination of whether he had an intention to do grievous bodily harm will require the application of community standards. The Crown referred to authority in support of this proposition.

The starting point on this issue is strong obiter dicta of Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at 472-473 [95]. In the course of providing other examples of factual issues requiring the application of “objective community standards” in s.118(6) Criminal Procedure Act 2004 (WA). Heydon J referred to the question “whether an accused person had a particular intention”. Gummow and Hayne JJ at 451-452 [38] agreed generally with the reasons of Heydon J.

The Court of Criminal Appeal, and single Judges, have considered the role of intention in s.132(5). Mr Smith SC relied upon passages in R v Belghar at 24-26 [90]-[100] and in the decisions of Harrison J in R v Abrahams at 96-97 [71]-[77] and of Hamill J in R v Simmons; R v Moore (No. 4) at [61]-[66].

The Crown referred to passages in R v Stanley at [56]-[61], R v Dean [2013] NSWSC 661 at [58]-[59] and of Bellew J in R v King at 415-416 [48]-[53].

In my view, the intention issue in this case may be characterised as one involving application of objective community standards: AK v Western Australia at 473 [95]; R v Stanley at [55]-[59]; R v King at 415-416 [48]-[53]; R v Dean at [58].

In the present case, the question which arises is whether, if the Crown establishes that the Applicant struck Daniel Christie, whether he did so with an intention to inflict grievous bodily harm. An assessment of this issue will involve an examination of all the evidence bearing upon that question and the drawing of inferences, if the evidence permits to the criminal standard. Directions concerning the drawing of inferences, for the purpose of determining an issue of intention are common directions in criminal trials, including a murder trial.

I have no difficulty in characterising an assessment as to intention in a criminal trial such as the present as being a matter falling within s.132(5). I have observed earlier that the absence of the word “intention” in s.132(5) provides limited assistance to the Applicant’s argument. The provision is non-exhaustive and, in a context such as this, may readily accommodate an issue of intention.

The fact that this issue would fall for consideration by 12 persons as opposed to one person, a Judge, is a factor which operates in favour of the jury being the tribunal of fact in this case.

Having regard to the indication by senior counsel for the Applicant that there would be no live issue in the trial concerning dangerousness with respect to the statutory alternative of manslaughter, I do not consider it necessary to address that issue on this application.

This issue may be dealt with relatively briefly.

Mr Smith SC submitted that, as with intention, credibility was not a term used in s.132(5) and it could not fall within the concept of objective community standards for that purpose. Submissions were advance by reference to a number of authorities.

The Crown submitted that the credibility of witnesses, and evidence generally, was a matter which fell within s.132(5) so that it could be taken into account for the purpose of determining whether an order for trial by Judge alone should be made.

It is true that the word credibility does not appear within s.132(5).

Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence.

Like Latham J in R v Dean at [59], I would call in aid the statement of Lord Devlin in Trial by Jury (1966), page 140, cited by Heydon J in AK v Western Australia at 472 [94]:

Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant’s trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury.

I have had regard to all factors bearing upon the exercise of discretion under s.132(4) as identified in this judgment.

For reasons expressed earlier, I do not accept the Applicant’s submission that the interests of justice call for a Judge-alone trial in this case. The substantial adverse publicity with respect to the Applicant will be significantly remote in time by 25 May 2015. Steps may be taken, between now and the commencement of the trial, to avoid any public trigger which may lead to members of the public (including the jury panel) engaging in electronic searching concerning the Applicant. The processes involved in the empanelment of a jury and the directions which the trial Judge will give, together with the operation of s.68C Jury Act 1977, will allow the Applicant to receive a fair trial by a jury comprising members of the public exercising an important role in the administration of criminal justice.

The additional arguments advanced on the application by reference to the issues of intention and credibility do not advance the Applicant’s case for an order for trial by Judge alone.

In my opinion, it is not in the interests of justice to make an order for trial by Judge alone in this case.

The Applicant’s Notice of Motion filed 30 January 2015 should be dismissed.

As foreshadowed earlier in this judgment, I am satisfied, for the purpose of s.8(1)(a) Court Suppression and Non-Publication Orders Act 2010, that an order is necessary to prevent prejudice to the proper administration of justice with that order being to the effect that there be no publication of the listing of the Applicant’s trial, nor any publication of the name of the Applicant, with those orders to remain in place until such time as a different order is made by the trial Judge.

Accordingly, I make the following orders:

I will request the Court’s Media Manager to bring these orders and this judgment to the attention of the media and I vary the above non-publication orders to allow this process to occur.