R v MARKOU [2011] NSWDC 25

District Court New South Wales

Medium Neutral Citation: R v MARKOU [2011] NSWDC 25 Hearing dates: 18 March 2011 Decision date: 18 March 2011 Before: Berman SC DCJ Decision: Application granted Catchwords: CRIMINAL LAW - Application for trial by Judge alone - relevance of circumstance that judge gives reasons - flexibility and efficiency of trial by judge alone. Legislation Cited: Criminal Procedure Act Cases Cited: TVM v Western Australia [2007] WASC 299 Category: Procedural and other rulings Parties: The Crown Blake Kevin Markou Representation: C Steirn SC - Applicant P McGrath - Respondent Elliot Lawyers - Applicant Director of Public Prosecutions - Respondent File Number(s): DC 2010/00099187

Judgment 1HIS HONOUR: I have before me an application for trial by judge alone made by the accused. If the Crown had consented, then the Court must make an order that the trial be held by judge alone, but because the Crown does not consent, I may make an order that the trial be held before a judge alone, if I consider it is in the interests of justice to do so. I consider that that test has been met. 2I note that there is some guidance, concerning the term 'interests of justice' in s 132(5) Criminal Procedure Act. I do not understand the Crown to suggest that objective community standards are to be applied in the present case. It is with that in mind that I look at the trial, which is to be held next Monday. 3The accused is alleged to have assaulted Matthew Cunneen Wyllie, thereby occasioning to him various bodily harm. There is no dispute that the accused is seen on a closed circuit television camera punching Mr Wyllie. There is no dispute that Mr Wyllie suffered grievous bodily harm, but what is in dispute is whether it was the accused's punch which caused the grievous bodily harm that Mr Wyllie suffered, because the CCTV footage also reveals another person punching Mr Wyllie. 4The issue to be run at trial is thus very limited. Identity is not in dispute. The fact that the accused punched Mr Wyllie is not in dispute. All that is in dispute is whether the Crown is able to prove beyond reasonable doubt that the punch thrown by the accused caused grievous bodily harm to Mr Wyllie. The accused intends to call evidence at trial from a Dr Thomas Gibson. For the purposes of this application I have been provided with a report of Dr Gibson. The applicant says that the evidence of Dr Gibson, which of course is in favour of the accused, is of a technical nature that would be more easily resolved by a judge than a jury. The Crown for its part says two things. Firstly, that it is not terribly technical in the first place, but secondly the evidence of Dr Gibson in its present form would not be admissible. I do not need to finally resolve the second of those aspects but I must say that there is a lot to be said for the Crown's objection. 5Of course, Dr Gibson would not, at trial, simply have his report tendered. He would come along and give evidence, perhaps on the voir dire, which may well resolve and amplify the matters that the Crown complains about, which may in turn make his evidence admissible. But as I say, I do not need to resolve this because, even if the evidence of Dr Gibson was not ultimately called, I am satisfied it would nevertheless still be in the interests of justice for this trial to be run by a judge alone rather than with a jury. 6New South Wales was one of the first Australian jurisdictions to introduce trial by judge alone. In the last twenty - one years or so, judges have built up some experience and are able to compare trials with a jury with trials by judge alone. It has to be said that most judges do not like the idea of trials by judge alone, but they are - and have proved to be - an efficient way of determining guilt or innocence. I do not understand there to be any challenge to the proposition that a judge alone trial is quicker and more efficient and more flexible than a trial before a jury. To give one example, if a witness or an accused became ill for a long time, in a jury trial it would almost inevitably be the case that the jury would be discharged, and court time would be wasted. In a judge alone trial, the same occurrence would almost inevitably mean that the trial would be adjourned for whatever time was required, and it would recommence before the same judge at a later date. 7Even in trials that run without interruption, judge alone trials are more efficient. Advocates naturally assume that the clever points they are making regarding evidence have to be emphasised and repeated in order to ensure that the least perceptive member of the jury understands it. Not only do judges tend to understand points the first time they hear them, they have the ability to say to an advocate " I understood that the first time ." I use that as a simple example of how a judge alone trial tends to be quicker. 8For my part, in deciding whether the interests of justice suggests a trial by judge alone rather than a jury trial, I would take into account those efficiencies I have mentioned and other efficiencies that I have not mentioned. Another matter I take into account, despite a Western Australia decision (which I will later name) to the contrary, is that a judge who determines guilt or innocence without a jury gives reasons for that decision. Juries, of course, simply come back with either guilty or not guilty verdicts and their decisions are to that extent inscrutable. 9I am not suggesting that juries should be required to give reasons for their verdicts, but I am saying that the interests of justice are enhanced by the giving of reasons. Despite McKechnie J's decision in TVM v Western Australia [2007] WASC 299, for my part I do take into account that the interests of justice are enhanced when reasons are given. 10I am fully conscious that judicial comity and the fact that McKechnie J sits in a superior court, would suggest that I would not lightly take a different view from his, but neither the Crown Prosecutor currently appearing before me, nor the Crown Prosecutor who appeared before me on the last occasion when this issue was raised, were able to explain why the fact that a judge gives reasons should be ignored when determining the interests of justice. 11Of course I accept at once the Crown's proposition that the default position is that the trial should be held before a jury. By participating as jurors in the criminal justice system, the community, through the jury, plays an important part in the administration of criminal justice. That role is not lightly to be cast aside. But where the issues are as narrow as I have identified them, where it is entirely possible that evidence of the kind to be given by Dr Gibson will be given, and where the trial will be quicker, more flexible, and the trial judge will be able to give reasons, I am satisfied the interests of justice do require that I make the order that the trial be held before a judge alone, and that is the order I make.