Supreme Court New South Wales Medium Neutral Citation: R v McCloskey (No 2) [2020] NSWSC 786 Hearing dates: 22 June 2020 Date of orders: 22 June 2020 Decision date: 24 June 2020 Jurisdiction: Common Law Before: Davies J Decision: Accused's application for a judge alone trial granted pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW) Catchwords: CRIMINAL PROCEDURE – trial - application for trial by judge alone pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) – where leave from court required as application made within 28 days of trial date – where prior application had been made before another judge and refused – whether in the interests of justice to be bound by earlier order – where circumstances arising out of current COVID-19 pandemic were not factors at the time of the first application – where trial previously vacated - where substantial risk that these circumstances could cause the trial to be vacated for a second time – where that risk unacceptable – order made for judge alone trial Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F Criminal Procedure Act 1986 (NSW) ss 130A, 132A Cases Cited: Doney v The Queen (1990) 171 CLR 207 Hamalainen v R [2019] NSWCCA 276 R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176 R v McNeil [2015] NSWSC 357 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 Redman v R [2015] NSWCCA 110 Texts Cited: Nil Category: Procedural and other rulings Parties: Crown Robert John Stewart McCloskey (Accused) Representation: Counsel: S Hughes (Crown) D McMahon (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Kapsis Solicitors (Accused) File Number(s): 2017/354632 JUDGMENT 1. The accused applied by notice of motion dated 15 June 2020 that he be tried by a judge alone pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW). The applicant is charged with the murder of John Salafia on 23 June 2013. The trial is fixed to commence on 29 June 2020. 2. I heard the motion on 22 June 2020. At the conclusion of the argument I made an order that the accused be tried by judge alone. I said that I would provide my reasons at a later time. These are my reasons. 3. Section 132A of the Criminal Procedure Act requires that any such application must be made not less than 28 days before the date fixed for trial except with the leave of the Court. Although this application was made less than 28 days before 29 June, the matter had been foreshadowed by the accused on a number of occasions earlier this year. Indeed, when I called the matter up for directions on 31 March 2020 one of my principal purposes was to ascertain whether there was to be a judge alone trial in the circumstances of the COVID-19 pandemic and the difficulties of being able to conduct jury trials. On that occasion counsel for the accused said that he had instructions that the accused's preference was for the matter to proceed by way of judge alone trial. The Crown had not, at that stage, reached a final view on whether consent would be given to that. The matter was then adjourned partly for the purpose of the Crown obtaining instructions in that regard. 4. There is no suggestion that any improper purpose was being pursued by the application being made at a time so close to the commencement of the trial. The Crown does not oppose leave being given for the application to be made at this late stage. Leave should be granted. 5. The Crown pointed out, however, that an earlier an application made by the accused together with his co-accused was refused by Wright J who was the judge due to preside over a joint trial commencing 26 August 2019: R v McCloskey; R v Hamlainen (No 2) [2019] NSWSC 1176. The judgment of Wright J also dealt with an application by the co-accused for a separate trial. An appeal was taken under s 5F of the Criminal Appeal Act 1912 (NSW) but only in relation to the refusal of Wright J to order a separate trial. The Court of Criminal Appeal allowed the appeal and ordered that the co-accused be tried separately from the present accused: Hamlainen v R [2019] NSWCCA 276. 6. The fact that Wright J determined an earlier application for a judge-alone trial makes s 130A(1) of the Criminal Procedure Act relevant. That section provides: 130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. 1. The present application was put on the basis of the combined effect of a number of matters. They may be identified as follows: (1) the case involves substantial evidence of bad character of the accused including evidence that may need to be led by the accused relating to his bad character; (2) associated with the first matter is that the accused intends to admit at the outset that he is guilty of being an accessory after the fact to the murder in that he drove the true offender away from the scene; (3) the accused intends to lead tendency evidence in relation to a witness known as RS1915592, who the accused asserts is the true offender. A number of relevant incidents involving that witness are said to be still under investigation. Further, there has been difficulty in obtaining relevant details about those incidents because there have been claims made of public interest immunity; (4) an application has been made and granted that four significant Crown witnesses ("the RS witnesses") whose names are not to be disclosed, will be giving evidence via AVL at a remote location. It is suggested that there is likely to be prejudice in the minds of the jury because they are the only witnesses giving evidence in that way; (5) There has been substantial negative media coverage throughout the proceedings; (6) There is greater trial efficiency for a judge alone trial, particularly in relation to evidence of largely uncontested peripheral matters; (7) The current COVID-19 pandemic is of relevance, particularly because the trial is estimated to take four to six weeks. The chance of a juror, a legal representative or a member of the Court staff testing positive would almost certainly lead to the trial being aborted, with a substantial waste of costs. 1. It is necessary to say a little bit more about the issue concerning evidence of bad character. The accused accepted that he was part of an arrangement to attend upon the deceased's premises and that he did so in the capacity of a driver. The Crown placed considerable emphasis upon certain recorded admissions made by the accused to a registered source, RS1591297 ("CD"), who is a criminal associate of the accused and a member, like the accused, of the Rebels Outlaw Motorcycle Gang. The case for the accused involves an acceptance that he told that person he had shot the deceased in 2013 but that he did so in order to intimidate him for various reasons including those outlined in his written statement at [63]-[64]. 2. The accused's case is that it was RS1915592 who in fact shot and killed the deceased, and that the accused drove that man away from the scene following the shooting. The accused said, that as consequence of the prior aborted trial and further disclosure by the Crown, he is now seeking to rely on tendency reasoning and evidence relating to RS1915592 which demonstrates what the accused says is a "horrifyingly clear propensity" on the part of that person to carry firearms, and to shoot and kill people, often in a similar fashion to what occurred here. 3. On the accused's case, Mark Easter (a senior Rebels members) was the person who organised for the accused and others to attend upon the deceased in circumstances where it was understood the deceased had been giving out the home addresses of other members. The accused said that Mark Easter was shot and killed in June 2015 by an associate of the accused. The accused submitted that all of that evidence impacts on an assessment of his character because of his association with that person, and in circumstances where the accused was the President of the City chapter of the Rebels in about 2012, and was introduced to, and seemingly recruited that person and his associates in that capacity. 4. The accused submitted that for the tribunal of fact to appreciate why the accused thought it necessary to intimidate CD in such an extreme manner, it will be necessary to explore in detail their history, including prior criminal dealings and associations. In that regard it will be necessary to disclose how the accused knows of the matters informing his view as to the disposition of CD and, hence, the need to intimidate him. 5. Further, that accused submitted that the available evidence discloses that the accused made other dubious claims to CD as to having committed other murders, which might provide support for the proposition that doubt ought to attend the specific admissions relied upon by the Crown in this case. That includes an assertion that the murder of this deceased "was his fifth one" as appears in the statement of RS1591297 at [77]. 6. The accused understands that the Crown does not propose to adduce this evidence. The evidence is of importance in the accused's case, however, in that it is consistent with what he says is a course of conduct designed to intimidate CD into backing off and to forestall any action against the accused. 7. Counsel for the accused made reference to what was said by Adams J in Redman v R [2015] NSWCCA 110 at [16] about the important distinction between prejudicial material being relied on by the Crown and prejudicial material proposed to be introduced by an accused. Counsel for the accused also pointed to similar sentiments in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [116], where Hamill J says it is difficult to see how the accused can fairly conduct his defence and expect a jury of right-minded people from the community to put aside his admitted criminal propensity. 8. As mentioned earlier, while the Crown did not suggest that leave should not be given because of the timing of the present application, the Crown relied on s 130A to submit that I would have to be satisfied it was not in the interests of justice for me to be bound by Wright J's refusal to order a judge alone trial. The Crown accepted that, relevant to that consideration, is the change of circumstances, being the COVID-19 pandemic. 9. The Crown drew attention to a number of cases emphasising the advantages of a jury where the credibility of witnesses is an issue at trial, including R v McNeil [2015] NSWSC 357 and Doney v The Queen (1990) 171 CLR 207 at 214. 10. The Crown submitted that Wright J's observations and analysis of the first judge alone application from [62] and onward in his judgment are correct. The Crown accepted that there is a necessity to adduce evidence of bad character, but submitted that with appropriate warnings the jury could be ensured to act in accordance with directions given. The Crown submitted that the present case is not likely to overwhelm jurors by emotion such that they would be unable to act in accordance with directions given to them and their sworn duty. The Crown submitted that it is not uncommon for witnesses such as informer witnesses to give evidence remotely. 11. The Crown accepted that the COVID-19 pandemic has the potential for real disruption to the trial. Quite properly, the Crown drew attention to a recent District Court trial that had been temporarily halted for a jury to be tested for the virus. The Crown submitted, however, that safeguards have been put in place to ameliorate the risk of infection and jury concerns. 12. The matters relied upon the accused in the application to Wright J are set out at [56]-[58] of Wright J's judgment. Apart from reliance on the present application on the COVID-19 pandemic and the need for the RS witnesses to give evidence remotely, the matters put forward on the present application were dealt with by Wright J in his judgment. The matters concerning media coverage now seem to me to have diminished significance because of the period of time which has elapsed from the publicity in 2019. 13. Were it not for the added factor of the pandemic, I would not have considered it in the interests of justice not to be bound by Wright J's decision refusing a judge alone trial. Although the accused has raised a number of significant matters, they were, with respect, dealt with thoroughly by Wright J. The interests of justice do not require that they be revisited. 14. Although particular arrangements have been made for jury trials, which are about to recommence in this Court, and which have recommenced recently in the District Court, there is still a real possibility that over the period of a trial estimated to take up to six weeks, a juror or another person in the courtroom might become infected with the COVID-19 pandemic. If that were to happen it is difficult to see how any other order could be made but an order vacating the trial. Such an outcome must be regarded as unacceptable when this trial was vacated in September 2019, in relation to the murder which took place in June 2013. The accused remains on remand. If this was a short trial, or even if there had not been an earlier vacation of the trial, such a risk might have been worth taking. 15. I can take judicial notice of the fact that, although community transmission of the virus within New South Wales has been at a low level for some weeks, it has not been eliminated. Further, the position in Victoria within the past four to five days has deteriorated to the extent that the government of that State has extended the state of emergency for a further four weeks. New South Wales has an open border with Victoria. Victorian school holidays commence on 26 June. The potential for movement of persons from Victoria into New South Wales is a significant possibility. 16. The District Court trial which has recently been interrupted as a result of a juror potentially being infected by the virus shows how real the risk is to the interruption of the present trial. 17. The pandemic amounts to new circumstances since Wright J ruled on the first application by the accused. In my opinion, it would not be in the interests of justice for Wright J's order to be binding. The trial should be conducted as a judge alone trial. 18. For those reasons, I made the order under s 132A(1) of the Criminal Procedure Act. ********** Amendments 22 September 2020 - Publication restriction removed – judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2020