R v FH [2012] NSWDC 283

District Court New South Wales

Medium Neutral Citation: R v FH [2012] NSWDC 283 Hearing dates: 16 April 2012 Decision date: 16 April 2012 Before: Neilson DCJ Decision: Application for trial by judge alone refused Catchwords: CRIMINAL LAW - Application for trial by judge alone - Re-trial - Hung jury on 8 of 9 counts at first trial - Accused found guilty on one count and subsquent issue estoppel - Expert evidence - Sexually explicit material - Fresh evidence - Utilitarian argument - Estoppel not caused by any reasoning process adopted or any view of the evidence formed by presiding judge Legislation Cited: Criminal Procedure Act 1986 ss 131 and 132 Cases Cited: Arthurs v State of Western Australia [2007] WASC 182 R v Fardon [2010] QCA 317 R v GSR (1) [2011] NSWDC 14 R v GSR (3) [2011] NSWDC 17 R v Kissier [2011] QCA 223 R v Markou [2011] NSWDC 25.1 TVM v State of Western Australia [2007] WASC 299 Category: Procedural and other rulings Parties: Regina (Crown) FH (Accused) Representation: Mr D Williams (Respondent) Mr C Steirn SC (Applicant) Director of Public Prosecutions (Respondent) Philip Sim & Associates (Applicant) File Number(s): 2010/254679 Publication restriction: I order that the name of the complainant and any evidence tending to identify the complainant be suppressed

Judgment 1This is an application under s 132 of the Criminal Procedure Act 1986 for trial by judge alone. 2An election under s 132(1) of the Criminal Procedure Act 1986 was filed in Court this morning. No objection has been taken by the Crown that there has been no compliance with s 132A(1) of the same Act. 3It is important to bear in mind some historical matters. On Monday 17 October 2011 the Crown called the accused for trial and presented an indictment containing nine counts. 4The first count was that between 14 October 2005 and 31 December 2005 the accused assaulted CC ["the complainant"] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely that at the time of the assault she was under the age of sixteen years, namely eleven years. The allegation by the Crown was of a touching by the accused of the complainant's breasts. 5Count 2 was an allegation of sexual intercourse with the complainant, a child then above the age of ten years and under the age of fourteen years, namely eleven years, during the period from 24 October 2005 until 3 June 2006. The allegation was of digital penetration per vaginam. 6Count 3 was again alleged to have occurred between 24 October 2005 and 6 June 2006 and was an act of indecency in circumstances of aggravation, namely that the complainant was under the authority of the accused. The allegation by the Crown is that the accused caused the complainant to masturbate his penis until ejaculation. 7Counts 4 and 5 were alleged to have occurred on the same occasion. The range of dates given was between 7 June 2007 and 6 June 2008. The first allegation is an act of indecency in circumstances of aggravation, namely that the complainant was under the authority of the accused. The particulars supplied by the Crown were that the accused caused the complainant to masturbate his penis. The fifth count was of sexual intercourse with a child between the ages of ten and fourteen years, namely thirteen years, in circumstances of aggravation, namely that the complainant was under the authority of the accused. The particulars provided by the Crown were of digital penetration per vaginam. 8Count 6 is alleged to have occurred between 1 September 2007 and 31 October 2007. It as a count of sexual intercourse with a child between the age of ten years and fourteen years under the authority of the accused. This is a further allegation of digital penetration per vaginam. 9Counts 7 and 8 were alleged to have been committed in the same circumstances. Count 7 is an act of indecency where the complainant was under the authority of the accused. Again, the particulars given were that the accused caused the complainant to masturbate his penis until ejaculation. Count 8 was a further allegation of sexual intercourse with a child between the ages of ten and fourteen years, namely thirteen years, who was under the authority of the accused. Again, the particulars were of digital penetration per vaginam. 10The final count in the indictment presented on 17 October 2011 was that on 30 July 2010 the accused possessed child pornography. The pornography relied upon by the Crown was a cropped photograph of the complainant's vagina, found on the computer used by the accused. 11The trial proceeded from Monday 17 October until Thursday 20 October 2011 when it was stood over part heard to Monday 24 October 2011. The reason why no time was spent on the trial on Friday 25 October was because I was the list judge here at Campbelltown and was required to call the normal list and deal with the "short matters". 12The trial resumed on Monday 24 October when there were closing submissions by the Crown and the defence. It was then adjourned until Tuesday 25 October 2011 when I summed up the case to the jury and invited them to retire to consider their verdicts. 13At the close of the day on 25 October 2011 I made an order pursuant to s 54(1)(b) of the Jury Act 1977, permitting the jury to separate, after having retired to consider their verdicts, to re-assemble on the following morning and to continue their deliberations. The jury returned on Wednesday 26 October 2011 and continued their deliberations. 14Eventually the jury advised me that they had reached a unanimous verdict on count 9 but were unable to reach either a unanimous verdict on counts 1 to 8 or, indeed, a majority verdict on counts 1 to 8. I took the jury's verdict in respect of count 9 and then discharged the jury and set the matter down for trial on counts 1 to 8 to commence this day at 10am when, instead of the trial commencing, the application under s 132 of the Criminal Procedure Act 1986 was made. 15The jury returned a verdict of guilty in respect of count 9 of the original indictment. I was surprised by that verdict at the time because it appeared to me, on the way the case had been presented and argued, that it would have been harder for the jury to reach a unanimous verdict on that count than it would have been to reach unanimous verdicts on the other counts in the indictment. I shall have more to say about that presently. 16Mr Steirn SC, who appears for the accused, supports the application for trial by judge alone on three grounds. The first is that there is expert evidence to be relied upon and that that is better dealt with by a judge alone rather than a jury. The expert evidence relates to how photographic images are downloaded and stored in a computer. Expert evidence was given at the original trial by Senior Constable Luke Shannon Bradley, and his evidence is recorded in the transcript of the earlier trial between pages 284 and 324. 17The Crown served, at 10.49am on 2 April 2012, a report from another expert, Phillip Moore, a "departmental professional officer" employed by the State Electronic Evidence Branch of the New South Wales Police Force. It is clear from his qualifications that Mr Moore is not a sworn police officer. He completed the Higher School Certificate in 2004 at Moriah College. Between 2005 and 2009 he was on a business information technology cooperative scholarship at the University of New South Wales. At the time he made his report for the current matter, he was working towards a graduate certificate in computer forensics at Macquarie University, which had commenced in 2011. Having worked for two private companies between January 2008 and July 2008, he worked for what was then called the RTA as a project management and business analyst and he has, since January 2011, worked for the New South Wales Police. In his report, Mr Moore refers to the earlier report prepared by Senior Constable Bradley, who he refers to as "DPO (formerly Senior Constable) Luke Bradley". It would appear that the position of departmental professional officer is now preferred to ordinary police rank. The inference to be drawn is that Mr Moore and Senior Constable Bradley work together in the same department of the Police Force, and the Force may well take the view that the evidence of one is as good as the evidence of the other. Suffice it to say that the evidence of Mr Moore merely supplements the evidence of Senior Constable Bradley and answers questions arising at the first trial, which had been left "hanging". 18There is no competing expert evidence. The expert evidence is really quite straightforward. It merely explains the process by which a photograph taken on a camera can be downloaded into a computer; how that downloaded photograph might be stored in the computer and as to whether viewing a photograph on the computer would create a file or not, and what must be done to create a modified image, and whether that creates a further file for that photograph. The evidence also discusses whether the timing shown in analysis of the computer is local time, whether daylight saving time or standard time, or whether it is Greenwich Mean Time. The evidence also discusses whether the images can be modified by being screened by a computer virus checker or the like. It is, as I said, fairly straightforward evidence and any member of the jury who has any ability with computers will be easily well across it. 19The defence, in discussing the expert evidence, pointed out that the expert evidence had not been served at least twenty-one days prior to the trial and, its having been served on Monday 2 April 2012, the defence had no time to meet it because, in the interim, there had been only eight working days because of the Easter holiday, which commenced on Good Friday, 6 April 2012. However, that itself cannot be grounds for a trial by judge alone. 20If the defence wishes to obtain expert evidence to rebut that recently served by the Crown, the appropriate remedy is to seek an adjournment in order to assess that evidence. Indeed, Mr Steirn was kind enough to put an appropriate moniker on his client's position. It was "having a bob each way". The defence could not meet the expert evidence if it was trial by jury, but could meet the expert evidence if it was trial by judge alone. That is not a frank concession that Mr Steirn made, but rather an encapsulation of the problem I discussed with him, that if the defence is unable to meet the expert evidence, that is grounds for granting an adjournment, whether it be trial by judge or trial by jury. 21The second ground relied upon by the accused is that the accused would be prejudiced in front of a jury because of the sexually explicit material relied upon by the Crown. Indeed, there is a full transcript of the earlier trial in which proceedings, even before the empanelment of the jury, are recorded. When addressing the jury panels, the learned Crown Prosecutor said, inter alia, this: "The Crown also alleges that the accused took sexually explicit photos of the complainant and that ten such images were found on his computer when it was seized by police in July 2010. You should be aware, ladies and gentlemen, that if you are selected on this jury it will be necessary for you to view those ten images, which are explicit images of child pornography involving the complainant, when she was between 11 and 13 years old." 22There was no objection to the admission of the photographs. They are, clearly, highly relevant and their prejudicial effect is overborne by their probative value. The photographs, essentially, are of the vagina of the complainant. The complainant said the photographs were taken by the accused but the accused's daughter said that she herself, the accused's daughter, took them. The images could be described as "erotic posing" and are not anything more sinister when one considers the variety of matters one needs to consider when, for example, sentencing for offences of child pornography. The images are not such as would startle or overwhelm the minds of any juror. 23The third ground relied upon by the defence is that the Crown wishes to adduce fresh evidence from "S", who is now referred to as the former wife of the accused, but at the time of the first trial was his wife. The Crown apparently wishes to adduce admissions alleged to have been made by the accused to his former wife whilst he was in custody. However, Mr Steirn, very properly, did not push this with any great animation or verve because, in the normal course of events, the Crown and the defence are able to agree to omitting evidence, for example, that the admission was made at a gaol rather than at some place which is not necessary to nominate. The admission is merely the conversation rather than the fact that the conversation happened whilst the accused was in custody. 24The first thing to consider is the effect of s 132 of the Criminal Procedure Act 1986. Section 131 of the same Act should also be borne in mind. It is in these terms: "Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part." Section 131 could be described as the general rule for a trial of criminal matters in this Court. There are provisions otherwise, the major provision being s 132. Section 132 is well known but, unfortunately, there is as yet no binding authority for how s 132 must be interpreted. 25The parties have helpfully drawn my attention to the decision of my learned colleague, Judge G D Woods QC, in R v GSR (3) [2011] NSWDC 17. After referring to certain authorities his Honour said, commencing at [14]: "[14] As 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. [15] In 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 wishes a prima facie determinative." 26I freely and candidly acknowledge that his Honour Judge Woods QC is much more learned in the criminal law than I. Indeed, he lectured me in criminal law at Law School. However, with unfeigned respect to his Honour, I cannot agree. There is persuasive authority from superior courts in other States. There are, in particular, the decisions of the Court of Appeal of Queensland in R v Fardon [2010] QCA 317 and R v Kissier [2011] QCA 223. In Kissier the primary judgment was given by Mullins J, with whom Fraser and White JJA concurred. After referring to the decision of Fardon, her Honour said: "[29] Chesterman JA referred to s 604 of the Code [the equivalent of s 131 of the Criminal Procedure Act 1986] which confers the right to trial by jury, subject to chapter div 9A which inserted the provisions into the Code for "trial by judge alone". Chesterman JA then stated at [81]: 'It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could have be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.' [30] In light of the purpose for which provision for a judge alone trial was introduced into the Code and the discretion to make a no jury order may be exercised only if the court considers it is in the interest of justice to do so, I favour the view expressed by Chesterman JA at [81] of Fardon. The process for the determination of the application that is reflected in the terms of s 615 [the equivalent of s 132 of the NSW Act] does not require expression of a starting point on the application for a no jury order that both methods of trial are equally valid." 27There are decisions to the same effect from the Supreme Court of Western Australia, in particular TVM v State of Western Australia [2007] WASC 299 (per McKechnie J) and Arthurs v State of Western Australia [2007] WASC 182 (per Martin CJ). In my view the correct position is that it is up to the applicant before me, the accused, to establish why is the interests of justice that there not be trial by jury but trial by judge alone. 28The arguments adduced by the accused on this application I do not find in any way persuasive. As I have earlier mentioned, the expert evidence is really straightforward. It is merely to assist the jury to understand how things are received by and stored in a computer and anyone with any reasonable working knowledge of computers (which does not include me) would understand that. The sexually explicit material is not anything that most adults would not have seen at some stage in their lives and is hardly inflammatory or likely to put a jury into a state adverse to the accused merely because such photographic evidence exists and especially when evidence will be given, I assume, again by the accused's daughter, the friend of the complainant, that she herself took the photographs of her friend, the complainant. The third ground, as I said, is really an everyday bread and butter issue in a criminal trial and can be easily dealt with by counsel. 29Mr Steirn also relied upon what fell from my colleague, Judge Berman SC, in R v Markou [2011] NSWDC 25. In that case his Honour appears to have been persuaded by utilitarian arguments as to why trial by judge alone is preferable, namely that it can be much shorter than trial by jury and that at the end of the trial there must be a fully reasoned judgment to be given by a judge who sits without a jury. Again, I acknowledge his Honour's greater facility and ability with the criminal law than mine, but I am unpersuaded by such utilitarian arguments. After all, sometimes a leisurely, slow analysis of evidence is preferable to a rapid and swift determination of issues where sometimes subtleties in the evidence can be overlooked. A slow criminal trial, in my view, is preferable to a speedy one. 30As to the requirement to give reasons, although Berman J was not persuaded by what fell from McKechnie J in TVM, I certainly am of the view that what fell from McKechnie J is correct. At [32] his Honour said this: "There is a public interest in the administration of justice carried out in public and in serious cases by the representatives of the public sitting as jurors. The fact that a judge must deliver written reasons, where a jury gives a general verdict, is of no consequence. That is a difference between the two modes of trial provided for by law. The inscrutability of a verdict of twelve is tempered by unanimity. The verdict of one is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid." 31I hasten to add this that sometimes trials by judge alone (and very often does this happen in the civil jurisdiction of a court) miscarry because the reasons for judgment given by the trial judge are inadequate and that can often lead to a further trial. It may be that publishing reasons does assist one party or the other but published reasons often lead to retrial after retrial because of the inability of some judges to adequately express their reasoning and sometimes, when the reasons are adequately expressed, they show an inconsistency or irregularity which requires a retrial. 32In the circumstances, I am not persuaded that this is an appropriate case for trial by judge alone. 33There is one further consideration which has concerned me throughout. I have heard all the evidence and, as one does, even when sitting with a jury, one forms a view of how the evidence is proceeding. I was surprised by the verdict of the jury, because I thought it would be easier for the jury to reach unanimous verdicts on counts one to eight, rather than on count nine. I thought count nine would cause them the gravest difficulty. That appears not to have been the case. The jury reached a unanimous verdict of guilty on count nine. That creates an estoppel between the Crown and the accused and is an estoppel which I, sitting as a judge alone, would have to bear in mind. That was not an estoppel caused by any reasoning process that I adopted or any view of the evidence that I had formed. I would feel compromised sitting as a judge in a trial by a judge alone in the current matter, having presided at the earlier jury trial. In that regard, I must refer to what fell from Judge Woods QC in R v GSR (1) [2011] NSWDC 14. His Honour said this: "[31] I 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 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 (having identified the relevant evidence, the applicable law and procedures) drawing conclusions as to fact. [32] Section 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 the reasonable person aware of all the facts might regard me as compromised, I would recuse myself and cause the matter to be put before another judge." 34In the current matter I would feel compromised being the tribunal of fact. That is because the matter does not come before me as if I were tabula rasa. I have received the jury's verdict on what was count nine in the indictment presented on 17 October 2011. I must necessarily sentence the accused for that crime. To bring an open and unbiased mind to all the evidence, to be the tribunal of fact in what essentially is a credit issue between the complainant and the accused, would put me in an invidious position. 35If the application for trial by a jury had been made weeks and weeks ago, it might have been possible to overcome that problem by listing the matter for hearing before another judge at another venue such as Parramatta or Sydney. However, that has, unfortunately, not been done. I must bear that in mind in reaching the decision to which I have come, to refuse this application for trial by judge alone. However, even if that were not the position, on the merits of the case as argued I would still reach the same conclusion that this is not an appropriate case for trial by a judge alone. The application is refused.