Judge alone

Martin CJ

1. I agree with Buss JA.

Owen JA

2. I have seen the reasons that Buss JA proposes to publish. I agree with his Honour's analysis of the facts and the law and with his conclusion that leave to appeal should be granted but the appeal should be dismissed. I wish only to make a short additional comment on one issue; namely the perceived differences between trial by judge alone and trial by jury in relation to the assessment of credibility and its effect on the fairness of this trial.

10. It is true that a free exchange of views and ideas can be very helpful in the decision making process. Everyday experience indicates that the physical and mental process of having to articulate propositions and to listen to the reaction of others can clarify thinking. But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.

11 I am not suggesting that juries are incapable of making objective and dispassionate decisions. A judge's charge to a jury will almost always include directions to that effect and I have no reason to believe that jury members do other than pay due and faithful regard to the instruction. But the day to day working life of a judge will often involve dealing with evidence in ways that are outside the normal experience of members of the public. For example, a judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. When matters of that nature arise in a jury trial there is a need for careful direction to guide the jury in relation to them. The experience gained by a trial judge over time in relation to a wide range of fact-finding methods can be a peculiar advantage.

Buss JA

104. The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury. It is unnecessary in the present case to rule on the correctness of the different views on the application of s 118 expressed in The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 (EM Heenan J), Arthurs v The State of Western Australia [2007] WASC 182 (Martin CJ) and TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 (McKechnie J).

Per McClellan CJ at CL

1. The respondent, Ismail Belghar, was arraigned in the District Court on an indictment which was filed on 11 February 2011. The Crown subsequently sought to amend the indictment and with the consent of the respondent leave was granted for this to occur. However, the respondent was not arraigned on the amended indictment. On 20 September 2011 he made an application to be tried by a judge without a jury pursuant to s 132 of the Criminal Procedure Act 1986 ("the Act"). The application was heard and refused. The respondent appealed that decision to this Court pursuant to s 5F of the Criminal Appeal Act 1912. This Court dismissed the appeal, determining that the District Court lacked jurisdiction to entertain the application as the respondent had not been arraigned.

2. The matter was returned to the District Court where, on 8 March 2012, a further application for a judge-alone trial was listed. On that occasion the respondent was arraigned on an indictment containing the following counts:

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3. The District Court judge granted the application and ordered that the respondent be tried by judge alone. The Crown appeals that order to this Court pursuant to s 5F(2) of the Criminal Appeal Act.

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15. The trial judge had the benefit of comprehensive written submissions from the parties. His Honour's reasons were delivered in an informal manner and were shortly stated. His Honour said that he agreed with the Crown that an applicant bears the onus of proof. Relying upon the decision in Arthurs v The State of Western Australia [2007] WASC 182 at [79] his Honour accepted that it is relevant to the "interests of justice" that an accused person, because of their religious or cultural circumstances, is concerned that he or she may not get a fair trial by a jury. His Honour concluded that:

"the attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension."

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38. Before turning to decisions of particular relevance to s 132 I should refer to the common law's acceptance, notwithstanding indications that from time to time there may be problems, of the capacity and functioning of the jury in a criminal trial. Under the heading "the function of the jury" and in the context of an application for a permanent stay of the trial, by reason of adverse publicity, the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 confirmed that the common law accepts that the jury provided with appropriate directions is a robust institution capable of providing a just decision…

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90. Section 132 of the New South Wales Act does not contain a similar provision. Accordingly, when considering an application under the section, apart from matters of which the judge may take judicial notice, the court is confined to the evidence placed before it. In the present case the respondent did not give evidence. The submission on his behalf was confined to an assertion that he adhered to conservative Muslim values which would, in the circumstances of the alleged offence, inevitably raise prejudice in the minds of jurors. I shall return to this issue.

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96. This appeal raises questions of fundamental importance which the divergence of views in previous decisions confirms are not readily resolved. Although s 131 provides for trial by jury "except as otherwise provided", I do not think that the section has the effect of creating a "presumption" that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a "presumption" of trial by jury is displaced. Each mode of trial has its particular characteristics and, accordingly, depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a judge-alone trial rather than trial by a jury. Of course, absent an application by an accused person, the default position will be that the trial must take place with a jury. And, no doubt, 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 laypeople. Subsection (5) acknowledges this consideration. However, I see no reason why the legislation otherwise requires particular weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers it is in the interests of justice to make the order.

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101. However, the decision that the judge is required to make must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused's trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused's apprehension is soundly based.

102. The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), 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: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial.

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110. In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantage available to an accused person and the community if reasons for the verdict are available from the trial judge: Markou at [6]-[8]; Arthurs at [76], [92]; see also Rayney at [29], [37]. For my part I would accept that as part of the mix of issues which must be considered the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligation on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie. Trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution.

111. However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.

Hidden J

116. I have had the advantage of reading in draft the reasons of McClellan CJ at CL. I agree that the primary judge fell into error in his approach to the application for the reasons identified by the Chief Judge, and I agree with the order proposed.

117. I also appreciate the Chief Judge's examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues. Generally, however, I would prefer to express no concluded view about those matters because it is unnecessary to do so to resolve the present case.

118. This much I would say. I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in subs (5). To adopt the words of Chesterman JA in Fardon, an accused cannot have a trial by judge alone "for the asking".

Hislop j

121. I too have had the advantage of reading in draft the reasons of McClellan CJ at CL. I agree that the primary judge fell into error in his approach to the application for the reasons identified by the Chief Judge, and I agree with the order proposed.

122. I also appreciate the Chief Judge's examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues. However, I would prefer to express no concluded view about those matters as it is unnecessary to do so to resolve the present case.

Macfarlan JA

1. I agree with Barr AJ.

Campbell J

2. I agree with Barr AJ.

Barr AJ

3. This is an appeal by the Crown under S 5F Criminal Appeal Act 1912 against an order made in the District Court that the respondent, Walter Kevin Stanley be tried by judge alone.

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11. His Honour enquired about the effect of intoxication at the trial and asked what the issues were likely to be. Mr Carty, counsel for the respondent, said, as had been stated in his solicitor's affidavit, that the only live issue in the trial would be whether the trier of fact were satisfied beyond reasonable doubt that the respondent had the specific intent required for proof of the first count, given the substantial evidence of gross intoxication. Counsel reminded his Honour that the respondent had said in an interview with police that he had no memory of the assault. Counsel also reminded his Honour that to make out the mental element necessary for the first count the Crown had to prove an intent to penetrate the mouth. That was how the Crown had particularised the sexual intercourse referred to in the first count. The debate continued and Mr Carty repeated on a couple of occasions that the issue would be whether the Crown had proved specific intent.

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20 .Mr Pickering SC for the Crown drew attention to his Honour's summary in dot-point form of the agreed statement of facts and to the repeated addition of the word "black", then to his Honour's remarks at paras [40], [41]. Mr Pickering submitted that, having put aside any argument based on the application of community standards, his Honour decided the application on two bases, namely the revulsion the jury would experience from the facts and the likely irremediable prejudice of a country jury against an Aboriginal accused. The Crown attacked both bases as incapable of justifying the order appealed from.

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34. Putting all this together, I have come to the view that his Honour concluded that any jury sworn to try the respondent was likely to be racially prejudiced. That was a finding made outside the ambit of counsel's arguments and without evidence. In my opinion his Honour erred in bringing an extraneous matter to bear in coming to his decision.

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36. His Honour failed to consider the measures available to the Court to warn members of the jury against allowing prejudices to influence them in their decisions. The law assumes, and trial judges are required to assume, that jurors will follow the directions of law given and that they are followed: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [31]; R v Burrell [2004] NSWCCA 336.

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46. In my opinion the evidence of these facts is likely to engender disgust in, to shock, any member of the jury hearing the case. But, leaving aside the question of degree, the facts are of a kind ordinarily heard by juries in criminal cases in this State. It is common for the Crown to put before juries evidence in explicit and detailed form of violent acts, of a sexual nature or otherwise, committed on helpless victims, some of them children. It is common for the Crown to adduce explicit evidence of serious injury to victims of crime which often results in disfiguring and permanent injury and disability, even death.

47. Trial courts in this State are required to ensure that members of jury panels are informed about the cases they may be called on to judge and to entertain applications from panel members who wish to be excused because they think they may be unable to bring a fair mind to bear on the issues. Trial judges routinely ensure that this is done.

48. Trial courts assume that members of juries may be prejudiced. They assume that members of juries may react emotionally to disturbing evidence. That is why trial judges always warn juries that they are not to allow emotion or prejudice to play any part of the process by which they reach their decisions.

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61. I have taken into account the collateral benefits of trial by jury referred to by Gleeson CJ in Swain v Waverley Municipal Council. Bearing in mind, that the tribunal of fact will have to apply community standards in judging the formation of intent, I think that a jury is the preferable tribunal of fact. I think that this outweighs any need for reasons to be given.

62. In my opinion the interests of justice favour a trial by jury. I would dismiss the application.

McCallum J

1. Simon Gittany stands charged with the murder of Lisa Harnum on 30 July 2011. His trial is listed to commence on 21 October 2013. This judgment determines his application for an order pursuant to s132 of the Criminal Procedure Act 1986 that he be tried by a judge alone.

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10. The principal basis for the application in the present case is that it is in the interests of justice for the Court to grant a judge alone trial because that would increase the likelihood that the accused would be represented at trial. The accused was represented by senior counsel, Mr Strickland, at the hearing of the present application, but Mr Strickland has not yet been retained to appear at the trial, due a shortage of funds. The accused has been refused Legal Aid and an appeal against that refusal has also been refused by the Legal Aid Review Committee. The decision of the Committee is final. The accused contends that a trial by a judge alone will be shorter than a trial with a jury and that the funds he has available to defend the charge are insufficient to meet the estimated costs of a trial with a jury.

11. Two further matters were relied upon in support of the application but it was acknowledged that those matters would not, on their own, warrant a trial by judge order. They were, first, the fact that the matter has been the subject of adverse media reports and, secondly, the contention that the trial involves what were described, broadly, as scientific issues.

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21. The question of legal representation, which was the primary basis for the application, raises more difficult issues. The evidence and other material brought forward by the accused at the first day of hearing of the application raised three issues: first, the extent of private funds available to the accused; secondly, the availability of Legal Aid; and thirdly, the likely estimate of the trial.

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31. Based on my own experience of jury trials, both as counsel and on the bench, I am satisfied that the difference in estimates proposed by Mr Strickland is realistic. On either view, that is, the view of Mr Strickland or the more conservative view of the Crown, there is a substantial risk in the present case that a trial with a jury would go for considerably longer than four weeks, while there appears to be a good prospect that a trial with a judge alone would be heard within that period.

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41. I consider that it is in the interests of justice to order a trial by judge alone. I am satisfied on the evidence before me and having regard to the estimates provided by two very experienced counsel that the accused's present legal team has a proper basis for apprehending that a trial with a jury would probably exhaust the accused's available funds well before its conclusion. In that circumstance, I accept unequivocally Mr Strickland's statement to the Court that, if the application were refused, the accused would not have representation for the trial presently listed to commence a week from today.

42. In those circumstances, having regard to the decision of the High Court in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, the accused would have a compelling basis for obtaining an adjournment.

43. It is important to bear in mind in the present case that the interests of justice are not to be confused with the interests of the accused. As already noted, trial by a judge alone is not available for the asking. However, broader interests are raised by the present application. The basis for the application is not simply a question of invoking considerations of the overall efficiencies in a trial by a judge alone: cf Belghar at [111].

44. As acknowledged by the Chief Judge at [110] in that case, the comparative likely length of trial by each mode is relevant. In the present case, I am satisfied on the basis of cogent evidence that the difference between the two modes of trial raises the spectre of the accused being left without representation for the trial, with the consequent risk of the need for the Court to grant an adjournment. Plainly, it is in the interests of justice for the trial to proceed next week and to proceed smoothly. A critical consideration in that context is the availability of the eyewitness. A further consideration is the desirability of having the matter brought to trial promptly, an interest in any criminal matter. Finally, I consider the interests of the family of the deceased, who must travel from overseas, to be of some, albeit limited, relevance.

45. The conclusion that it is in the interests of justice to order a trial by judge alone enlivens the power to make an order under s 132, but it is still necessary for the Court to consider whether to exercise its discretion to do so. I have given separate consideration to that issue. The only matter raised at the hearing as militating against making the order sought was the apprehension that the application for legal aid was not put forward seriously and that there may have been an attempt to manipulate a situation where the accused should have a judge alone trial to which he would not otherwise be e

Per Hamill J

1. Part way through a pre-trial voir dire hearing, Tony Simmons (“the accused”) and Kieran Moore (“Mr Moore”) applied for an order under s 132 of the Criminal Procedure Act 1986 (NSW) that they be tried by judge alone. The application was foreshadowed for the first time by the accused on Monday 16 February 2015 at the commencement of the voir dire concerning the admissibility of admissions or statements against interest made by each of them (T 10).

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12. The parties concede that leave under s 132A is required. The Crown does not oppose the grant of leave. In spite of the Crown’s position, the question of whether leave should be granted in the present case is a live one. The application is tardy in the extreme.

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22. In the present case, there can be no suggestion of “judge shopping”. As I said earlier, the parties have known the identity of the trial Judge since 5 December 2014. That is a considerable time before the 28 day time limit prescribed by s 132A. Thus, it cannot be suggested here that the parties made the application as a result of discovering the identity of the judge.

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31. In my opinion, there is much to be said for the application for a judge alone trial to be made before other pre-trial issues are considered. While this might potentially give rise to applications based around decisions then made on the voir dire, it avoids the appearances to which I have made reference.

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55. The judgment of McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 represents the most comprehensive analysis of the current provisions in New South Wales. Most of the principles to be derived from the judgment were helpfully summarised by Bellew J in R v Villalon [2013] NSWSC 1516 at [20].

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57. McClellan CJ at CL at [96] rejected the proposition that s 131 “has the effect of creating a ‘presumption’ that the trial should be with a jury, thereby casting a burden of proof on an accused person”. His Honour acknowledged that there was an evidentiary onus but there is no presumption in favour of a jury trial and no legal onus on an accused person who seeks an order under s 132.

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59. However, it must be correct that the accused has no right to demand a trial by judge alone.

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69. An example of a case where the length of the trial was a significant part of a consideration of the “interests of justice” was R v Gittany [2013] NSWSC 1503. In that case, McCallum J accepted counsel’s estimates that the trial would have been significantly longer if conducted with a jury. The evidence was that the accused had insufficient funds to privately engage his legal team for the longer jury trial. An adjournment to allow a legal aid application to be pursued would have resulted in the unavailability of an important prosecution witness. In those circumstances, her Honour accepted that the length of the trial was a critical factor in determining whether it was in the interests of justice to make a trial by judge order.

70. Another issue discussed in R v Belghar was the advantage of transparency inherent in the requirement that a Judge give reasons for the verdict. This is to be contrasted with the jury which is “as inscrutable as the Sphynx”: Ward v James [1966] 1 QB 273 at 301 (CA), Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 365…

71. Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]…

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75. However, it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are central to a trial, that is a factor that militates strongly in favour of a jury trial.

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82. I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis.

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88. In spite of the persuasiveness of Bagaric’s essay, the force of the authorities are such that I must proceed on the basis that jurors are capable of, and do, obey directions, including directions requiring them to disregard prejudicial publicity surrounding a trial and prejudicial evidence adduced in the course of the trial. However, this axiom can be taken only so far. The discretions residing in a trial judge to exclude prejudicial evidence, to suppress evidence during the currency of a trial, to discharge a jury without verdict if inadmissible evidence comes before it and to order separate trials of co-accused and severance of multiple counts are all examples of legal remedies which would not exist if it were universally the case that juries were capable of obeying directions and disregarding prejudicial material. It is a question of degree and turns on a thorough analysis of both the nature and extent of the prejudicial material and the method by which it will be introduced into the trial.

Hoeben CJ at CL

1. I agree with the orders proposed by Adams J for the reasons which his Honour has set out in par [15] thereof. As indicated by R A Hulme J, the resolution of this matter depended very much upon its unusual facts.

Adams J

3. The applicant, a 47 year old aboriginal man, was arrested and charged in January 2014 with two counts alleging that, between 31 December 2003 and 25 December 2004 at Tilpa in the State of New South Wales, he had sexual intercourse with a young girl who was six or seven years of age at the time, contrary to s 66A of the Crimes Act 1900. When the matter came on for trial on 13 October 2014 the applicant applied for the trial to proceed by judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Crown opposed the application, which was refused. The applicant appeals from this decision under s 5F(3) of the Criminal Appeal Act 1912.

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6. It is proposed that the applicant will give evidence. Amongst other things, he says that he attended only one evening party in Tilpa during 2004, which was to farewell the mother of one of his then employers at the Tilpa Hall, opposite the hotel. He remembers this well, amongst other reasons, because on one occasion he left the hotel and returned with a rifle, which he waived about before being persuaded to leave. The date can be fixed because he was arrested and charged the following day, 28 November. Although his vehicle was unregistered, it was identified by witnesses (who took the rifle from him) as a white Ford Falcon utility. He remained in custody into January 2005. Independent evidence of these facts is available and is intended to be adduced. (Although nothing was sought to be made of this, the Notice of Prosecution Case states that the applicant left Tilpa “sometime in mid to late 2004”.)

7. The applicant says that he did not see the complainant on 27 November 2004 and could not have been the offender if the alleged offences occurred on or after 28 November 2004 because he was then incarcerated. The Crown submitted, in effect, that it was unnecessary for the applicant to disclose the prejudicial matter, since it would consent to an agreed fact to be placed before the jury to the effect that the applicant was not in the area after 28 November 2004 and, so far as the previous day was concerned would not dispute the applicant’s account of his movements around the Tilpa Hotel or, as I understand it, that he was then driving the Ford vehicle described above.

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13. In R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 Hamill J (if I may say so with respect) comprehensively summarised the cases dealing with the application of s 132 of the Act, starting with the principle (to which reference has already been made) in Belghar that, although there was an evidentiary onus on the applicant, there was no presumption in favour of a jury trial and no legal onus on the accused who seeks an order for trial by judge-alone: the question is what is in the interests of justice. The next material point is that, although the accused has no right to trial by judge alone, his or her election for such a trial is to be taken into account as a matter to be weighed in determining where the interests of justice lie: Simmons at [60].

14. The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales. As Hamill J noted, there are a number of judicial statements commending the ability of juries to assess credibility and reliability of witnesses but “...it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are essential to a trial, that is a factor that militates strongly in favour of a jury trial” (Ibid at 75). His Honour concluded –

[82] ...[For] the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone ... [Each] mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question[s] of credibility, putting aside matters of emotion, on an almost daily basis.

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16. The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J that “...many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices” (Simmons at [53]). Furthermore, it is to be assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88]).

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18. Evidence that the applicant could not have been at a birthday party on or, for that matter, after 27 November is obviously relevant and could not be excluded. Nor can the applicant be prevented from being entirely candid about the matter, not because the fact might be disputed, but because his credibility will be judged against that of the complainant and a suspicion in the jury’s mind about a lack of candour could be unjustly engendered were he to appear to be concealing matters from them; the jury will assess his truthfulness on their overall view about him as a witness. For obvious reasons, the proposal of the Crown did not ameliorate this problem. A direction that the jury must not speculate about the circumstances does not answer this problem, even supposing it were effective to prevent the implication that something adverse to the applicant was being kept from them. The question then arises whether directions by the trial judge not to use the evidence of wrongdoing adversely to the applicant would suffice. Likely it would, but a real risk would remain that it would not. These cases are emotionally fraught and the offences naturally instigate powerful feelings of disgust. The applicant cannot rely on evidence of good character. In short, the applicant must make a choice between full disclosure on the one hand and the real risk of adverse prejudice on the other.

19. In my respectful view, the trial judge erred in concluding, in effect, that the applicant’s fair trial would not be compromised by requiring him to agree to limit the evidence as proposed by the Crown or otherwise take the risk of being adversely prejudiced by giving a candid account. The risk of unfair prejudice would be entirely removed were the applicant to be tried by judge alone. Accordingly, it is in the interests of justice that the trial proceed in that way.

RA Hulme J

21. This case turns on its own facts and may be resolved simply for the reason given by Adams J in the paragraph of his judgment immediately preceding his proposed orders. I agree that those orders should be made.

Bathurst J

1. The applicant, RKF (the applicant), was indicted on two charges of aggravated indecent assault on SF in contravention of s 61M(2) of the Crimes Act 1900 (NSW) (Crimes Act) and one count of intimidating SF with the intention of causing her to fear physical harm in contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2. On 15 May 2015, the applicant filed an election for a judge alone trial. This was opposed by the Crown and on 9 November 2015, her Honour Judge Traill refused the application.

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4. SF was born in Thailand. She was a child of the applicant and a Thai woman. Shortly after her birth, the applicant was charged with drug offences in Thailand. He was remanded in custody and remained in custody in Thailand until 2006 when he was acquitted of the charges. Thereafter he was extradited to Italy on other drug charges and remained in prison in Italy until 2009 when he was acquitted of those charges. There is evidence that whilst he was in prison in Thailand the applicant saw his family on a regular basis.

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6. After his release from prison in 2009, the applicant returned to Australia. He attempted to have a relationship with his daughter but she did not want to have anything to do with him. The applicant then moved to Sydney where he supervised a block of apartments in Darlinghurst.

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16. The trial judge stated that the primary basis for the judge alone trial was the history of the relationship between the applicant and SF, in particular, the reason why she did not want her father to come near her whilst she was in hospital. She noted that senior counsel for the applicant stated that she wished to cross-examine SF about the relationship and ask what the nurses knew or assumed about it. The trial judge stated that senior counsel for the applicant informed her that she intended to explore the mental state of the people who were dealing with SF at Westmead Hospital and the view they had formed of the applicant and submitted that one could only assume their concern was that something in the nature of inappropriate sexual conduct would occur.

17. The trial judge pointed out that there was no evidence that this was what the staff at Westmead had been told or assumed. She pointed out that all the evidence was was that SF stated she did not wish to see her father. She also referred to SF’s denial that there had been any prior sexual assaults.

18. The trial judge also noted the submission that to properly present the applicant’s case and cross-examine witnesses, it was necessary to reveal the accused’s prior alleged criminality. She noted that it was submitted that for the applicant to properly defend himself it was necessary to raise his background in order to explain why his daughter told him she did not want to see him. She noted the submission that the disclosure of that background would prejudice the applicant in the minds of the jury.

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22. Her Honour stated that there is no presumption in favour of a jury trial and no onus on the accused to establish that it is in the interests of justice for the trial to be conducted by a judge alone. She stated, however, that the case was one where the application of community standards was important. She recognised also that the election by the accused for a judge alone trial must carry some weight. However, she ultimately determined that the interests of justice did not require a judge alone trial.

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39. In R v Belghar [2012] NSWCCA 86 (Belghar), McClellan CJ at CL set out a number of matters relevant to the determination of an application for a judge alone trial. He indicated that there was no presumption in favour of a jury trial, that the subjective views of the accused in dispensing with a jury trial must be a relevant factor, as is the length of a jury trial compared to a judge alone trial: at [96], [99] and [110]. To this must be added of course the power in s 132(5) of the Criminal Procedure Act to refuse to make an order if the trial involves a factual issue requiring the application of objective community standards including, relevantly, the issue of indecency.

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43. Second, the facts are quite different in the present case. In Redman, the applicant was charged with various sexual offences which occurred around November 2004. The applicant intended to lead evidence saying he could not have committed the offence after 28 November because he was incarcerated from that date until 5 January 2005. It was held that this evidence was so prejudicial it would deprive him of his right to a fair trial and he should not be required to limit his evidence and accept as an agreed fact that he was not in the area where the offence took place after 28 November.

44. By contrast, in the present case the evidence which is sought to be led only has indirect relevance to the issue in question. The evidence of incarceration is apparently sought to be led only by way of explanation of the applicant’s absence from SF’s life. This is in circumstances where SF has stated that there was no previous incident of sexual assault. Further and importantly, unlike Redman, the applicant was acquitted of the charges brought against him.

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46. Despite the assertion by the applicant to the contrary, I see no reason a jury would not follow a direction that they should not take an adverse view of the applicant from the fact that he was incarcerated for crimes which he was found not to have committed.

47. The second area where it was said prejudice would arise was in regard to the ability to cross-examine the nurses and social worker who observed the incidents to the effect that they may have been prejudiced against the applicant because of the comments made by SF regarding not wanting to see her father. There is no evidence of this and it is speculative. If the applicant wishes to risk cross-examining on this issue and an answer is given which the jury cannot properly take into account, once again there is no reason to suggest they would not follow a direction to ignore the evidence.

48. In these circumstances, her Honour did not err in failing to apply Redman. I should add that irrespective of whether there is any principle of the nature of that referred to at [16] of his judgment, Adams J himself recognised it was not a rule of universal application. There is no error in failing to apply it in the present case.

Hall J

57. I agree with the Chief Justice and the orders proposed by him.

RA Hulme J

58. I agree with the orders proposed by Bathurst CJ and with his Honour’s reasons.

French CJ (would allow trial by judge alone in Commonwealth matters)

2. The purpose of the exercise of federal judicial power in relation to the trial of charges for offences against laws of the Commonwealth is no less. Justice requires a fair trial according to law. Trial by jury is a time-honoured means of fulfilling that purpose. It has the inestimable advantage of involving the wider community in the judicial process. It was appropriately described by Alexis de Tocqueville as "a judicial, and as a political institution". In some cases, however, justice may be better served by a trial before a judge alone than by a trial before a judge and jury. That reality is recognised in the laws of Australian States and Territories, which allow courts to try some offences by judge alone which would ordinarily be tried by judge and jury.

3. This case concerns the interpretation of s 80 of the Constitution and, in particular, whether it prevents the Commonwealth Parliament from enacting a law to allow an accused person, charged on indictment with an offence against a law of the Commonwealth, to choose trial by judge alone where the prosecutor agrees or the court considers it to be in the interests of justice. The interpretive issue must be approached by reference to the text and context of s 80 and its purposes, including the final and paramount purpose of doing justice.            

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8. At the conclusion of oral argument on 10 February 2016, the Court announced that at least a majority of the Court was of the opinion that the question should be answered "yes" and that the applicant's motion for a trial by judge alone should be dismissed. Orders were made accordingly, with reasons to be published at a later date. I took a different view from that of the majority. In my opinion the reasoning of the majority in Brown should not be followed and the question in the Cause Removed should be answered "no".

The procedural background

9. The applicant stood charged in the Supreme Court of New South Wales on an indictment dated 7 May 2015 with seven offences, allegedly committed in New South Wales, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Foreign Incursions Act")…

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10. The trial was listed to commence on 1 February 2016 before a judge and a jury in the Supreme Court. On 25 November 2015, the applicant filed a notice of motion in that Court for an order for a trial by judge alone, relying upon s 132 of the CPA, as applied by s 68 of the Judiciary Act…

12. The question stated for the consideration of the Full Court was:

"Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant's trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?"

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36. The rhetorical question might well be asked — given the flexibility accorded to the Parliament by the established interpretation of s 80 in designating the mode of trial as summary or on an indictment, even to the extent of involving election by the accused, what further need is there for flexibility where trial on indictment is prescribed? One answer may be to ask another rhetorical question — what principle, built upon existing authority other than Brown's case, requires an interpretation of s 80 which would preclude the Parliament from providing that a trial process commenced by presentation of an indictment can proceed, without any change to the initiating process, as a trial by judge sitting alone, where the accused so elects and the prosecution agrees or the court approves? Against that background it is necessary to consider the decision of this Court in Brown. Before turning to Brown, however, some reference should be made to the decisions of the Supreme Court of the United States considered in Brown, which interpreted Art III §2 cl 3 of the United States Constitution as allowing for waiver of the guarantee of trial by jury in certain cases.

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Brown v The Queen — the unavailability of waiver

46. The question whether an accused person charged on indictment with an offence against Commonwealth law could, with the approval of the court, elect trial by judge alone was first considered by this Court in Brown and answered in the negative. The appellant had been presented for trial in the Supreme Court of South Australia on an information of the Commonwealth Director of Public Prosecutions charging him with an offence against s 233B(1)(ca) of the Customs Act…

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49. The majority in Brown comprised Brennan, Deane and Dawson JJ. The appellant relied upon the decisions of the Supreme Court of the United States on the availability of waiver of trial by jury under Art III §2 cl 3. Their Honours rejected that argument. They did so on the basis that there was no equivalent in the Australian Constitution of the Sixth Amendment to the United States Constitution "which might compel a departure from the primary meaning of the mandatory words in s 80". Brennan J also relied upon the absence of a long history of judicially recognised waiver of trial by jury. His Honour observed that in Australia there had been no suggestion in cases on s 80 that its language permitted waiver of trial by jury. That being said, none of the earlier cases concerned the question of waiver. The reference to the mandatory language of s 80 in those judgments was directed to different contentions.

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Overruling an earlier decision of the Court

65. Counsel for the applicant was permitted to argue that Brown should be overruled.

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76. In my opinion the decision in Brown should be reopened. For the reasons which I have given, that does not involve any suggestion that the formal ruling in Brown was wrong. However, the principle which underpinned that ruling was too broad, imposing an unwarranted rigidity upon the construction of s 80. On that basis the decision should not be followed. I would have answered the question stated for the consideration of the Full Court in this case as follows:

Question: Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant's trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?

Answer: No.

Kiefel, Bell, Keane J (would not allow trial by judge alone in Commonwealth prosecutions)

81. On 8 May 2015, the applicant was arraigned on the indictment in the Supreme Court of New South Wales and he pleaded "not guilty" to each count. His trial on the indictment was listed to commence on 1 February 2016 before Adamson J and a jury.

82. On 25 November 2015, the applicant filed a notice of motion in the Supreme Court of New South Wales, seeking a trial by judge order. On 15 December 2015, French CJ ordered that the notice of motion be removed into this Court. On 22 December 2015, French CJ stated a case for the consideration of the Full Court in these terms:

"Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant's trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?"

83. At the conclusion of the hearing, the Court answered the question "yes" and dismissed the applicant's motion. These are our reasons for joining in the making of those orders.

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Is Brown distinguishable?

95. The reasoning of the majority in Brown did not depend upon the particular provision made under South Australian law for trial on indictment by a judge alone. Nor are there material differences in their Honours' reasoning. Central to the reasons of each is the recognition of the jury as an essential constituent of a court exercising jurisdiction to try an accused charged on indictment with any offence against Commonwealth law. The unqualified command that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury" did not, in their Honours' analysis, allow the trial on indictment of any offence against any Commonwealth law without a jury. The question asked in the case stated could only be answered favourably to the applicant by overruling Brown.

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115. The command that the trial on indictment of any offence against any law of the Commonwealth "shall be by jury" admits of no other mode of trial on indictment for a Commonwealth offence. This is a sufficient reason for rejecting the invitation to re-open and to overrule Brown. However, the contention that the Brown construction neglects consideration of constitutional context and purpose should not go unremarked. Each member of the majority in Brown was mindful of the place of s 80 in Ch III as part of the structure of government and the analysis of each is consistent with the object of the provision being to prescribe how the judicial power of the Commonwealth is engaged in the trial on indictment of Commonwealth offences. That analysis should be accepted.

Gageler J (would not allow trial by judge alone in Commonwealth matters)

121. The proposition for which Brown v The Queen is authority was succinctly stated in Cheng v The Queen: "where it applies, s 80 [of the Constitution] is mandatory". The applicant argued to the contrary of that proposition. The Attorney-General of the Commonwealth argued that s 80 does not apply here. The other interveners did not materially add to either argument.

122. Rejecting both arguments, I joined in making orders affirming that material sub-sections of s 132 of the CPA are incapable of being applied by s 68 of the Judiciary Act to the applicant's trial of offences against s 7(1)(e) of the CFIR Act and dismissing the applicant's motion for an order that he be tried by a judge alone. These are my reasons.

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140. The democratic participation in the administration of Commonwealth criminal law guaranteed by the prescription of trial by jury as the method of trial on indictment of an offence against a law of the Commonwealth is confined in its scope, but not contradicted, by the repeatedly acknowledged capacity of the Commonwealth Parliament to lay down rules for the determination of whether or not an offence is to be tried on indictment, within limits which legislative restraint in practice has avoided being subjected to "any severe test". That constitutional guarantee of democratic participation would be flouted by a capacity, on the part of one or more parties in a trial on indictment or on the part of the court, to determine that the protection of the liberty of the accused and the public interest in the administration of justice were sufficient to justify the court being constituted by a judge alone.

141. The proposition for which Brown is authority is good law, for good reason. Where it applies, s 80 is mandatory.

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148. There is a prosecution of an offence against a law of the Commonwealth, and the prosecution has given rise to what is unquestionably, in substance and nomenclature, a proceeding "on indictment" according to the conception in Munday v Gill.

149. The applicant has been arraigned in that proceeding on indictment and has pleaded not guilty of the offences of which he has been charged in the indictment. In accordance with procedures of the CPA applied by s 68(1) of the Judiciary Act, he is thereby "taken to have put himself ... on the country for trial"[250].

150. The trial which must now occur in the Supreme Court will be a trial on the indictment, for which the Commonwealth Parliament has provided in s 9A(1) of the CFIR Act. That trial will be a "trial on indictment" within the meaning of s 80 of the Constitution. Section 80 applies.

Nettle and Gordon J (would not allow trial by judge alone in Commonwealth matters)

173. Section 80 of the Constitution relevantly provides that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". It is in absolute terms. The command is unqualified. It is not possible, as a matter of construction, to interpret that absolute and unqualified requirement as consistent with the idea that a trial on indictment for an offence against a law of the Commonwealth does not have to be before a jury.

174. Section 80 "imposes various imperatives upon trials on indictment of offences against Commonwealth law". Section 80 is not concerned with a mere matter of procedure. It imposes a limitation on judicial power. It "entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence" (emphasis added). It does not extend to all offences against the laws of the Commonwealth. That it was limited to trial on indictment was a choice made by the framers of the Constitution.

175. Section 80 also operates as a limitation on legislative power. When a law of the Commonwealth provides that the trial of an offence against a law of the Commonwealth shall be on indictment, the Commonwealth Parliament cannot permit that trial to be heard by a judge or judges without a jury.

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177. Although s 80 contemplates the existence of offences against a law of the Commonwealth which are to be tried on indictment, its terms do not require that there be such offences. It was left to the Commonwealth Parliament to determine which, if any, offences against a law of the Commonwealth are to be tried on indictment. That position has not changed. The Commonwealth Parliament has the power to provide that a given offence against a law of the Commonwealth is not triable on indictment. If that course is adopted, then s 80 is not engaged because an essential aspect, trial on indictment, is absent. The Commonwealth Parliament may also enact laws that provide that certain indictable offences may be dealt with summarily on specific conditions being satisfied. If the specified conditions are satisfied, the matter proceeds summarily, the trial is not on indictment and s 80 is not engaged. That election is again left to the Commonwealth Parliament. The power of the Commonwealth Parliament to legislate in these ways provides a means of disengaging the operation of s 80 of the Constitution. However, if, as in the CFIR Act, the Commonwealth Parliament prescribes that the trial of the offence shall be on indictment, s 80 of the Constitution is engaged and the trial must be by jury.

178. The mandatory terms of s 80 cannot be ignored. Section 80 cannot be read as if it provided that "[t]he trial on indictment of any offence against any law of the Commonwealth shall [sometimes or unless waived by the accused or unless the law otherwise provides] be by jury". Yet, that in the end is the effect of what the applicant and the interveners (except South Australia) contended.

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187. It is different with s 80. There is nothing open-textured or undefined about its terms. Its purpose is to ensure that a trial on indictment proceeds before a jury, and it imposes a clear and unqualified mandatory requirement to that effect. The applicant's submission that the operation of s 80 should somehow be equated with the operation of s 92 or s 117 is contrary to the express terms of s 80, inconsistent with the limitations which s 80 places on the judicial and legislative power of the Commonwealth and contrary to established constitutional principle.

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192. Changes to jury trials designed to meet the exigencies of modern criminal trials have been considered by this Court and found not to be inconsistent with the requirement in s 80 that a trial on indictment of any offence against any law of the Commonwealth be by jury because the essential features of a trial by jury have remained unaffected.

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194. That "criminal trials today typically last longer, are more expensive and involve more complex issues" may also be accepted. That the decision making function of juries may be at risk of being affected by adverse influences, including prejudice, may also be accepted. But ignoring the text and constitutional context of s 80 is not a solution. These issues can be, and have been, addressed legislatively and through a variety of mechanisms designed to reinforce the institution of the jury trial. As seen earlier, the Commonwealth Parliament can designate which offences are to be by "trial on indictment". The Commonwealth Parliament can also determine that whether an offence is to be tried on indictment is contingent on the satisfaction of certain conditions. It is neither necessary nor appropriate to determine whether there are other mechanisms or alternatives within the power of the Commonwealth Parliament.

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216. The bases of the conclusion in Brown remain good law. As seen earlier, the submissions of the applicant and the interveners (except South Australia) must be rejected because they are contrary to the mandatory terms of s 80 and not only fail to engage with, but are inconsistent with, fundamental principles. These were the same principles addressed, and relied upon, by the majority in Brown in concluding that s 80 of the Constitution precluded an accused charged with an indictable offence against a law of the Commonwealth from electing pursuant to s 7(1) of the Juries Act 1927 (SA) to be tried by judge alone. No party or intervener sought to challenge those fundamental principles. There is no basis for distinguishing Brown from the present case. Leave should not be granted to reopen the decision.