R v GSR (1) [2011] NSWDC 14

District Court New South Wales

Medium Neutral Citation: R v GSR (1) [2011] NSWDC 14 Hearing dates: 31 January, 2 February 2011 Decision date: 02 February 2011 Jurisdiction: Criminal Before: GD Woods QC DCJ Decision: Application for Judge Alone Trial Granted Catchwords: Trial by Judge Alone - Trial by Jury - Removal of prosecution veto of judge alone trial - Pre-trial publicity - "Interests of Justice" Test Legislation Cited: Courts and Crimes Legislation Further Amendment Act 2010 Criminal Procedure Act 1986 Criminal Appeal Act 1912 Cases Cited: TVM v Western Australia [2007] WASC 299 Western Australia v Martinez & Ors [2006] WASC 25 R v Fardon [2010] QCA 317 Arthurs v The State of Western Australia 2007 WASC182 Texts Cited: Nagle, J.F., "Collins; The Courts and the Colony", (1996) Category: Procedural and other rulings Parties: The Crown GSR Representation: Counsel: Margaret Cunneen SC (Crown) John Stratton SC (accused) Solicitors: Director of Public Prosecutions (NSW) Ken Scurr (accused) File Number(s): 2008/77882 Publication restriction: Suppression Order In Respect Of Accused's Identity And Name Of Towns To Which The Events Relate

Judgment 1HIS HONOUR: There is before me a draft indictment charging that between 1 December 2001 and 11 July 2003 the accused by a deception, namely by falsely representing that he was entitled to perform the clinical practice of obstetrics, dishonestly obtained for himself a financial advantage, namely an appointment as visiting medical officer obstetrician and gynaecologist at two different regional District Hospitals. 2The prosecution is brought pursuant to s.178BA of the Crimes Act, New South Wales 1900. That provision has since been removed to another part of the Crimes Act, but at the time of the alleged offence s.178BA was applicable. It may still be prosecuted even though the provision has been changed. 3Normally a trial of such a matter in the District Court of New South Wales will be by a judge and jury of twelve civilian jurors. However, the law on trial by judge alone, which is permitted in certain circumstances, has recently been amended. This has been effected by the Courts and Crimes Legislation Further Amendment Act 2010 which became operative on 14 January this year, 2011. This statute refashions s.132 of the Criminal Procedure Act 1986 and introduces s.132A. Essentially the new law is that there may be, under certain conditions, trial by judge alone, even if the prosecutor does not agree to such mode of trial. In its previously existing formulation s.132 was so constructed that albeit the defence sought to opt for trial by judge alone, that request might be vetoed by the Director of Public Prosecutions in the exercise of his good judgment. 4He was assisted in the exercise of that judgment, or his officers were, by the issuing of guidelines; important indicators to Crown Prosecutor and those who instruct them as to the proper mode of proceeding in prosecutions. Whereas for some time after the original introduction of s.132 in the 1980's the guidelines were formulated so that if the jury made a request for trial by judge alone it would normally be granted, a 2003 formulation of the guidelines, perfectly within the Director's powers, made the exercise of that veto more common. 5Over the last several years, this matter has been agitated before the legislature, a report by an advisory body has been produced and indeed a standing committee of the Legislative Council considered the matter and took evidence - hence the legislation now under consideration. As I say, essentially the new provision is that there may under certain conditions be trial by judge alone even if the prosecutor does not agree to such mode of trial. The fundamental test is whether the court considers that such mode of trial is in the interests of justice, once the application has been made. 6Here Mr Stratton of Senior Counsel, who appears for the accused, makes the application. There is on the court papers, without dispute, a document signed by the accused and witnessed by Mr Kenneth Scur, solicitor for the accused, indicating that the accused has sought and received advice in relation to his election to seek trial by judge alone. The part which indicates consent by the Director has not been signed and indeed Madam Crown of Senior Counsel, who appears for the Director, submits that no such order should be made. 7The "interests of justice" test is set out in subs 4 of s.132 as follows: "if the prosecutor does not agree to the accused person being tried by judge alone the court may make a trial by judge order if it considers it is in the interests of justice to do so." 8The formulation "in the interests of justice" is one which is used at various points in the criminal statutes governing procedure. It is unnecessary for me to dilate on that, but I mention separation of trials power as one instance where the "interests of justice" test will regularly be applied by the courts. There are numerous others. 9The factors to which reference may be made in assessing the interests of justice in a particular case are not exhaustively categorised anywhere, but in this instance s.132 subs 5 provides the following guidance: "without limiting subs 4 the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including but not limited to an issue of reasonableness, negligence, indecency, obscenity or dangerousness." 10Section 132A(1) requires leave of the court in certain circumstances which leave, if necessary, I would grant. Such leave may not be necessary because no date for trial in the District Court had actually been set before this week. The Crown and the defence are not in dispute on this issue. 11On the substantive point, the defence argues that this is a case where the accused has been subjected to massive adverse and unfair pre-trial publicity, to the extent that in the interests of justice that there should be trial by judge alone. Exhibit VD1/A is a printout not objected to by the Crown, demonstrating quite plainly that the internet continues to be the repository of a pool of strongly prejudicial material against the accused. The material is, in my view, highly inflammatory and includes epithets which are very nasty indeed. The material suggests widespread public antagonism against the accused. 12The defence has further argued that the Crown case will by its very nature necessarily reveal to the jury strongly prejudicial material in the form of the fact of the accused medico having, by orders made in 1997 by a disciplinary tribunal, been inhibited and limited in his practice. 13The Crown submits that what would be involved here is essentially a jury matter, a matter of disputed credit - that is whether the jury will draw a reasonable doubt from the version expected to be advanced by the accused. 14It is preferable that there should be a jury trial, the Crown says, because it is unlikely that the jury, protected by appropriate judicial orders, will know of, or be influenced by, any publicity about the accused. Under continuing orders, he is to be referred to only by initials. Moreover, the Crown says, the press are in fact not interested in this case, a fraud matter, in comparison with the considerable interest demonstrated by the press in matters of a surgical or anatomical kind alleged to involve the accused, such as were dealt with in the immediately preceding trial which never reached a conclusion. 15In considering the "interests of justice" as referred to in s 132(4) I am entitled to have regard to a range of issues. As I understand it, however, this will be the first trial in New South Wales in which this issue is raised and there is no binding guidance. I do have before me as exhibit VD1/B the prosecutorial guidelines on judge alone trials which were brought into effect in 2003, but these of course do not take into account the new law. They are nonetheless helpful. I have as well a copy of parliamentary papers consisting of report number 44 of the Legislative Council, November 2010, entitled 'Inquiry into Judge Alone Trials Under s.132 of the Criminal Procedure Act 1986' and an extract from Hansard in the Legislative Council for 24 November 2010 in which the report was introduced and discussed. I have read this material, of a kind which may at least be noted by the Court and which can sometimes be of some assistance. However my central concern is of course with the words of the statute. 16I anticipate with some confidence that this issue will be much agitated in the courts. I do not seek to predict the many relevant considerations which may in the future be addressed in one case or another. It is, it seems to me, a relevant consideration that we function within the broad structure of a system of trial by civilian jury in major criminal cases. Nonetheless the legislature here has quite distinctly changed the law in this particular regard and I am bound to and will take cognisance of and follow that law. There is, on such an application as this, no presumption for or against either mode of trial. 17One consideration put forward by the defence was that the very nature of the charge should impel me to make the order - that is, that a jury might not dispassionately and adequately handle, in deliberating on a fraud charge, the fact that the doctor might previously have been limited in his practice for disciplinary reasons. There might be such cases in the future where such a consideration conceivably might cause a judge to make an order under s.132, but this is not one of them. I will not speculate about how significant that factor may be in any future case. 18I am conscious that I am not making a decision such as might be made by Court of Criminal Appeal after quashing that a conviction for one of the bases set out in the Court of Criminal Appeal Act. Rather, the kind of decision that I am now making is broadly akin to that which might be made in connection with an application for a separate trial, although the two matters are not precisely equivalent. 19My particular attention in this matter relates to the body of inflammatory and prejudicial material extant relating to this accused man. Here it seems to me that the material of the kind revealed in exhibit VD1/A raises a grave risk that one or more of the jurors might, despite strong directions of the kind which I would give and do regularly give on this subject, make inquiries about the connection between the accused and ... and/or ... Hospital; or that such a juror or jurors might already be aware of, and affected by, this widespread and seriously prejudicial material from newspapers or television. 20The fact that the first jury could not reach a verdict cannot determine my assessment of the likely impact of this body of material on a future jury. The Crown submits to me correctly that the jury in the previous case was quite divided. In the course of the deliberation to the jury in the previous trial I read onto the record as MFIs 19, 20 and 21 (three sequential notes from the jury) in which they indicated that they were split. MFI 19 said, we "continue to be split"; MFI 20, and MFI 21 said: 'It seems the longer we talk the bigger the wedge is becoming. The numbers are more or less divided down the middle.' 21Because the jury is separate from the rest of the court, we have no way of knowing their deliberations. It might be the case, as the Crown submits, that the jury were aware of the inflammatory material but followed the court's direction to ignore it and not to make anything of it. It may well be, as the Crown says, that they precisely followed my directions and nobody put the accused's name into the Google search engine. On the other hand, as Mr Stratton says, we cannot know this for sure. 22I am careful to distinguish the decision I make on this point from a decision which might be made by a court dealing with an application for a permanent stay of a prosecution on the ground of inflammatory publicity. Orders of that kind are rare and are usually dealt with by way of adjournment for a cooling off period. However, although jurors might forget things (as we all do over time) the internet does not. It does not have a "cooling off period", so that for years, where there has been substantial publicity about a particular matter, it may remain dormant in the search engine, ready to spring out at any particular point in time. 23Section 132 in its present form (and indeed in its former guise also), provided for the possibility that a trial, where there is an issue raised about massive prejudicial pre-trial publicity, may be conducted by judge alone, thus minimising concern that widespread prejudice might somehow bring about a mistrial or a wrong result. 24Where there is a jury trial I am bound to accept the repeated observations of the Court of Criminal Appeal that jurors should be expected to be, and understood to be, robust in their ability to ignore extraneous matter. As Mr Justice McHugh famously said on one occasion in the High Court, there is a very considerable investment by the legal system in the principle that jurors can and do obey the directions of judges about what is to be regarded as evidence and what is not to be regarded as evidence. 25My decision in this case is not based on comparing or evaluating the respective virtues of decision-making by judge alone or by a jury. The simple fact is that the law permits an accused person to retain his right to trial by jury in major criminal cases, but that in cases where for good cause in the interests of justice a judge considers that judge alone trial is appropriate, that order may be made. "Judge alone" trial is not imposed on an accused. 26It is important to note that the DPP guidelines of 2003 specifically refer to pre-trial publicity. It is one of those areas where, as it were, an orange light may be raised in relation to this question of mode of trial. As with the question of whether one can envisage a "worst case" for sentencing purposes, it is always theoretically possible to imagine worse publicity than this. However, I find it hard to envisage more malignant pre-trial publicity than that which has operated in this case. If this case does not qualify as one in which trial by judge alone is justified in the interests of justice, it is difficult to see that there ever would be one. In my assessment the circumstances of this prosecution fall within the range of circumstances where the Court should order trial by judge alone. 27The guidelines of 2003 speak of: "Where there is a real and substantial risk the directions by the trial judge or other measures will not be sufficient to overcome prejudice arising from pre-trial publicity." 28In my view this is such a case, even though that is not the opinion of the Director of Public Prosecution, whose considered position I have respectfully taken into account. 29I appreciate that it is not an insignificant matter to remove from democratic jury judgment a criminal trial into the arena of judicial judgment. It is a step which I am reluctant to take, quite distinct from any personal concern I or any other judge might have about the stress and burden of decision making being placed on the trial judge, rather than on the jury. Any such factor is of course irrelevant. My reluctance arises because the determination of major criminal trials historically has been within the constitutional province of the jury of twelve. The right to trial by jury is a right which was battled for and hard won in this State. It was a constitutional right even before the establishment of responsible government. Nonetheless, as I have said, the legislature has recently spoken on this issue and it has done so after careful consideration. I am bound to apply the law as I see it. 30In reaching the decision I have, I note that this is not merely a technical case or a legal matter which would best be dealt with by a judge rather than a jury. It is not a complex fraud case likely to last for a year, and the suggestion that it is merely a matter "on the papers", is not persuasive. 31I have borne in mind the Crown's submission that I could not avoid having formed a view about the credibility of the accused in the course of the previous trial on another indictment which resulted in a hung jury. That is a proper submission to make, but in that trial I was not a finder of fact as to credit either by the accused or anybody else, and I made no such findings. The very process of allowing judge alone trial in major criminal trials in some cases necessarily envisages that the task of the judge will be one which is divided, as when a magistrate deals with a matter, or when a judge of the Land and Environment Court determines a criminal matter. In such trials there is a separation between the role of the judge in assessing whether or not evidence is admissible and making procedural rulings, on the one hand, and on the other hand (having identified the relevant evidence, the applicable law and procedures) drawing conclusions as to fact. 32Section 132 was introduced in circumstances where that division of functions was well known and it must have been within the contemplation of the legislature that trial by judge alone would inevitably involve assessment of matters in both of the two areas I have described. It is a necessary and common part of the judicial discipline to sequester extraneous matters from fact finding. If I felt compromised in any way, or if I thought that a reasonable person aware of all of the facts might regard me as compromised, I would recuse myself and cause the matter to be put before another judge. However, there has been no such application and it would be inappropriate for me to volunteer it. Absent a good reason, judges have a duty to try cases which come before them, whichever mode of trial be involved. 33Accordingly the application for judge alone trial is granted and unless otherwise indicated from the bar table I set a date for the commencement of the trial as Monday 7 February 2011. 34Before I go any further, and it is important to add this, my decision on this matter is not entirely based on the question of prejudicial publicity. I take into account all the circumstances that bring us here today. Nothing I decide today determines the outcome of any future similar application in relation to any other trial of this accused. 35We are somewhat in unchartered territory here because, by way as it were of case management, all of the matters involving this gentleman have been put before me on my list. Nothing I say today determines any future issue.