R v GSR (3) [2011] NSWDC 17

District Court New South Wales

Medium Neutral Citation: R v GSR (3) [2011] NSWDC 17 Hearing dates: 14-15 March 2011 Decision date: 15 March 2011 Jurisdiction: Criminal Before: GD Woods QC DCJ Decision: Application for Judge Alone Trial Granted Catchwords: Jury - Trial by Judge Alone - "Interests of Justice" Test - Gender Balance of Jury Legislation Cited: Criminal Procedure Act 1986 Criminal Appeal Act 1912 Jury Act 1977 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 1In the present case the accused is charged on an indictment dated 14 March 2011 containing five counts. They are in similar terms, each alleging the assault by the accused and an act of indecency, the person in question in each case being under the authority of the accused whom I will describe as "GSR". 2The five counts refer to five different women who at the relevant time would have been aged about thirty or thirty-five. Each was a patient in a practice being conducted in a New South Wales country town by the accused as a specialist gynaecologist. 3The accused has applied in due form for trial by judge alone. The matter arises under a refashioned s 132 of the Criminal Procedure Act 1986 and a new s 132A. 4The essential change to the law introduced by those provisions on January 14 this year is that there may under certain conditions be a trial by judge alone even if the prosecution does not consent to that mode of trial. 5As I said in a related judgment of 2 February 2011, in its previously existing formulation s 132 was so constructed that albeit the defence opted, or sought to opt for trial by judge alone, that request might be vetoed by the Director of Public Prosecutions. Here no question arises as to the matter having been commenced before the starting date of the new legislation. 6So far as I know there is no binding authority from the New South Wales courts dealing with the interpretation of this provision. As it now stands s 132(4) says: 7"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 factors to which reference may be made in assessing the "interests of justice" in a particular case are not exhaustively categorised anywhere, but s 132(5) provides the following limited guidance: 9"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 and indecency, obscenity or dangerousness." 10In this case there is an issue of indecency which arises, because the charge in each count is one of indecent assault. 11There is before me evidence relating to the extent of pre-trial publicity to which the offender has been exposed. Exhibit A is the affidavit of his solicitor, Mr Kenneth Scurr, who prints out as an attachment to his affidavit various results from a Google search of the internet for the accused by name. Mr Scurr says that on 14 March 2011 his search recorded about 267,000 results. 12I have before me as well exhibit A4, an up to date Media Monitors search of "GSR". That search reveals, as does the search involving the material Mr Scurr produced, numerous references to the accused in the vilest terms. It refers to him as ignoring victims, describes him as a "rogue doctor" and refers to him being accused of "mutilating and assaulting hundreds of women". He is also described as a "disgraced ex doctor" and there are numerous references to a police investigation of claims linking him to the deaths of fifteen mothers and babies. 13I am referred by counsel to various cases from other jurisdictions where the so-called "interests of justice test" in similar legislation has been applied for some years before its use in New South Wales. In particular there is a 2007 Western Australian case TVM v Western Australia [2007] WASC 299 (a decision of McKechnie J of 7 December 2007) and Western Australia v Martinez & Ors 2006 WA SC25. The Supreme Court of Queensland discussed this in The Crown v Fardon [2010] QCA 317, a decision of 12 November 2010. None of these decisions is strictly binding in New South Wales, nor is the Western Australian decision of Arthurs v The State of Western Australia 2007 WASC182, but they provide a range of possible positions which might be adopted by a judge in this State in interpreting the "interests of justice" test in s 132. 14As I analyse it, there are essentially three possible positions. (In argument before me, the Crown contended for approach (1) and the accused for approach (2)). (1) One approach might be to assume a "default" position of trial by jury; that is to say one starts with a presumption in favour of trial by jury rather than by judge alone. (2) A second position may be the reverse of that - that presumptively there ought to be trial by judge alone if the accused asks for it. (3) A third possible approach is that the court should make no presumption either way, but should engage in the exercise of judicially weighing factors relevant to the interests of justice overall. 15In my view the third approach is correct. Plainly the law relating to s 132 has been altered by the legislature and deliberately so. Now the court should not presume trial by jury as the default position, nor alternatively assume that the accused's wishes are prima facie determinative. 16In following approach (3), the court should have some regard (inter alia) to both of the important considerations expressed in what I have listed as the first and second possible approaches. It is important to bear in mind that most major criminal trials in New South Wales are conducted by a jury of twelve civilians randomly drawn from the community, and this is a long respected mode of trial. The merits and benefits of trial by jury should be borne steadily in mind in determining an application such as this. It is an important factor. Similarly the wishes of the accused are relevant. Under common law trial by jury, the accused has the right peremptorily to challenge members of a jury panel. That is a right which has recently been abolished in England but it nonetheless still operates in Australia. The law has traditionally regarded it as important that the accused have some stake in a process which may lead to him being convicted and put into gaol. 17Nonetheless, as I said before, neither of these two considerations is determinative of the outcome in such an application as this. There are many other considerations which may come into play. 18In the present matter, having heard counsel address and considering the material before me I take into account the following particular matters as being relevant to the "interests of justice" issue: (1) One, the context is that most trials are by jury . This is a long and valued mode of trial. It is not a presumption but it is a significant consideration not lightly to be disregarded. (2) Secondly, the nature of the case . I consider this in two aspects. One, as to the aspect of indecency, and secondly as to what I might, perhaps inelegantly, describe as the "gynaecological aspect". 19As to indecency, the Crown submits that this is a case where a judgment will be made by the tribunal of fact as to whether certain conduct amounts to indecency and submits there are strong reasons for permitting such a question to be adjudicated by a jury drawn from the community rather than by a single judge. I see the strength of that argument but in this case, as I understand the charges, I doubt very strongly that there will be the slightest difficulty in a tribunal of fact, however constituted, concluding that the alleged conduct, if it were proven, would amount to indecency. I see no real judgment issue here about the nature of the conduct as indecent or otherwise. The issue really will be whether the alleged conduct, specifically the sexual manipulation of the female genitals during a gynaecological examination, is or is not proven beyond reasonable doubt. 20A second aspect of the nature of the case is the fact that what is involved is a trial relating to a number of different gynaecological examinations of women. There is the consideration advanced by the Crown and which seems to me to be not insignificant - that a mixed jury of men and women drawn from the community at large might arguably be seen as a preferable tribunal of fact over a single judge drawn from the bench of judges, that judge being in this case male. This is a consideration which I regard as being of some possible significance. 21The third factor I take into account as going to the "interests of justice" question is pre trial publicity . In this case the publicity set out in the annexure to Mr Scurr's affidavit and in the Media Monitors material, exhibit A5, is extensive and disturbing. It identifies the accused as a "rogue doctor" and it suggests that he is guilty of serial killings. He has been identified visually on a national television program, the "Sunday" program, in terms similar to the kind of material referred to in the annexure to Mr Scurr's affidavit and in the Media Monitors material. The pre-trial publicity has been, frankly, poisonous, inflammatory and includes very nasty epithets which are not easy to forget. 22A fourth consideration to which I make reference is the possible shortening of the trial . In particular, Mr Stratton submits that in a trial by judge alone, not all the witnesses will be required to be called twice, as they may possibly do if there is a jury trial. This might arise, at the pre-trial point, in virtue of the need in fairness to explore on the voir dire possible connections and/or collusion between the witnesses arising out of the substantial publicity about this matter. 23A fifth matter is the wishes of the accused and his apparent fears of media induced prejudice affecting a fair trial . In reverse order, let me say that the last consideration I mentioned, while it is something I note, does not appear to me to be of great moment here. He has expressed his view, his counsel has put it before the Court and I note it. 24As to the possible shortening of the trial, again this seems to me to be, in the evaluation process, not of great moment. Madam Crown is conscious of it and she does not regard it as an impediment to the position she takes. Her witnesses are adult women, not children. Again, this is a matter which I note, but I do not regard as being of great significance in this case. 25The first matter I mentioned is the context of this trial within a framework of a system of justice where most major criminal trials are trials by jury. Again I note this as a matter of relevance, but in view of the second and third matters I have addressed, it is not a powerful consideration. 26The two most important considerations here are the pre-trial publicity and the consideration which I have inelegantly described as the "gynaecological aspect". The predominant and most powerful consideration is the pre-trial publicity. Were it not for that consideration, I may well have taken the view that it would be more appropriate that a mixed jury of men and women should determine the trial outcome, rather than the verdict being rendered by a single judge who happens to be a male. 27It is important to note that in determining an application such as this, the court is not deciding whether trial by jury is better than a trial by judge alone. The simple fact is that the legislature has made these two modes of trial available in certain circumstances. 28While I would probably (absent the pre-trial publicity factor) have held against trial by judge alone in this case, that would be the result of a discretionary judgment. There is no rule that in cases involving women as victims or otherwise, the tribunal of fact must be a woman or include women. It happens that the first jury ever called in Australia was a jury of convict matrons assembled for the purpose of determining a gynaecological matter; that is, whether or not a female convict who was ordered to be hanged was or was not pregnant. The jury determined that she was not 1. Since the early days of transportation, the members of the Australian public from whom juries are drawn have become much better educated. Courts no longer impose the death penalty, so it is unlikely that the trial by a jury of matrons to determine the issue of pregnancy or otherwise will ever be revived, but in any event judges of different genders hear all kinds of cases when that is required of them. Gender is, as a matter of law, irrelevant to mode of trial. However as a discretionary matter in a case such as this, it might properly be regarded as a factor among others. Were all other things equal in this case, I would have determined that there should be a trial by jury because of this consideration. However, in my view, things are not equal. There has been poisonous pre-trial publicity, aspects of which I have already mentioned. It represents a continuing and serious risk to the integrity of this trial. 29I repeat as I said in another "GSR" judgment of 2 February 2011 that I am not making a decision such as might be made by the Court of Criminal Appeal, after the event, that a conviction should be quashed for one of the reasons set out in the Criminal Appeal Act. That involves a different test and different considerations. What I see here is a significant risk that one or more of the jurors selected might, despite strong directions of the kind which I would give and do regularly give in trials, make enquiries about the connection between the accused and the relevant regional hospitals; or that such a juror or jurors might already be aware of and affected by the widespread and seriously prejudicial publicity. 30It is true, as the Crown says, that I could give directions. Before giving directions, I might (as I did in the most recent trial of the accused) call upon the panel so that any potential juror conscious of being affected by partiality arising from publicity might ask that he or she be excused. Several such applications were in fact made in that most recent trial. This is an approach to jury selection which reflects my practice, varied from case to case, and which I understand to be consistent with the relevant provisions of the Jury Act . 31In making the ruling which I do today I am not suggesting that the empanelment procedure adopted in the last trial of the accused was somehow defective according to any test which might be utilised in a Court of Criminal Appeal were the matter to be dealt with there. The issue for the court on such an application as the present one is whether the pre-trial publicity, considered as a factor relevant to a proposed trial, has or has not such weight as would cause the court to determine the application one way or the other in the "interests of justice". This is a prospective, not a retrospective exercise, quite distinguishable from the determination of a possible miscarriage of justice on appeal. 32The pre-trial publicity here is such that it is in the interests of justice for me to order a judge alone trial, and I do so.