Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bruce Donald Redman v R [2015] NSWCCA 110 Hearing dates: 31 March 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Before: Hoeben CJ at CL at [1] Adams J at [2] R A Hulme J at [20] Decision: (i)leave to appeal be granted; (ii)the decision below be quashed; and (iii)the trial proceed by judge alone. Catchwords: CRIMINAL LAW – application for trial by judge alone appeal – no presumption in favour of trial by jury - right to a fair trial - sexual intercourse with person under 10 years without consent Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Cases Cited: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 Category: Principal judgment Parties: Bruce Donald Redman (Applicant) The Queen (Respondent) Representation: Counsel: Mr D O'Neil with Mr J Kellaway (Applicant) Mr K McKay (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/00007634 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 October 2014 Before: Lerve DCJ File Number(s): 2014/00007634 Judgment 1. HOEBEN CJ at CL: I agree with the orders proposed by Adams J for the reasons which his Honour has set out in par [18] thereof. As indicated by R A Hulme J, the resolution of this matter depended very much upon its unusual facts. 2. ADAMS J: Introduction 1. The applicant, a 47 year old aboriginal man, was arrested and charged in January 2014 with two counts alleging that, between 31 December 2003 and 25 December 2004 at Tilpa in the State of New South Wales, he had sexual intercourse with a young girl who was six or seven years of age at the time, contrary to s 66A of the Crimes Act 1900. When the matter came on for trial on 13 October 2014 the applicant applied for the trial to proceed by judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Crown opposed the application, which was refused. The applicant appeals from this decision under s 5F(3) of the Criminal Appeal Act 1912. The Criminal Procedure Act 1986 1. So far as is relevant this provides – 132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) … (3) … (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (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. (6) … (7) … Background 1. The Crown case against the applicant included the following matters – 1. The complainant and her family moved to Tilpa in January 2004 and returned to Brisbane shortly before Christmas 2004. 2. Sometime during 2004 the complainant and her father attended a birthday party for one of the locals during the evening. The complainant could not remember specific dates or the location of the party. (The defence points to other matters recalled by the complainant, her mother and father which, it is submitted, suggest the party could have taken place during November 2004.) 3. The complainant says the applicant drove a white or grey "truck" or "ute". 4. The alleged sexual assaults occurred while the complainant was playing a game of "spotlight" with the applicant, which involved hiding in the dark in scrubland behind the shed on a property where the complainant (possibly) resided. 5. The complainant first mentioned the assaults to her mother in May 2012 when they resided in Queensland. 6. The complainant's evidence about the presence of the applicant at the party and the assaults allegedly committed is not otherwise supported. 1. It is proposed that the applicant will give evidence. Amongst other things, he says that he attended only one evening party in Tilpa during 2004, which was to farewell the mother of one of his then employers at the Tilpa Hall, opposite the hotel. He remembers this well, amongst other reasons, because on one occasion he left the hotel and returned with a rifle, which he waived about before being persuaded to leave. The date can be fixed because he was arrested and charged the following day, 28 November. Although his vehicle was unregistered, it was identified by witnesses (who took the rifle from him) as a white Ford Falcon utility. He remained in custody into January 2005. Independent evidence of these facts is available and is intended to be adduced. (Although nothing was sought to be made of this, the Notice of Prosecution Case states that the applicant left Tilpa "sometime in mid to late 2004".) 2. The applicant says that he did not see the complainant on 27 November 2004 and could not have been the offender if the alleged offences occurred on or after 28 November 2004 because he was then incarcerated. The Crown submitted, in effect, that it was unnecessary for the applicant to disclose the prejudicial matter, since it would consent to an agreed fact to be placed before the jury to the effect that the applicant was not in the area after 28 November 2004 and, so far as the previous day was concerned would not dispute the applicant's account of his movements around the Tilpa Hotel or, as I understand it, that he was then driving the Ford vehicle described above. The trial judge's decision 1. The learned trial judge referred to the judgment of McClellan CJ at CL in R v Belghar [2012] NSWCCA 86 at [96] where his Honour said, in effect, that there was no presumption in favour of trial by jury rather than by judge alone, whilst the accused bore an evidentiary onus to show that it is in the interests of justice for the trial to proceed by judge alone, the legislation giving "no particular weight" to the fact that, absent an application, the trial would be heard by a jury. The question was how the interests of justice are best served. His Honour then briefly described the circumstances giving rise to the application and observed, having presided in the District Court at Dubbo on a permanent basis since November 2011, it seemed to him – That the local jurors attended their duties diligently and I have yet to see anything to suggest other than that they have followed explicitly and implicitly directions that are given to them. 1. His Honour then referred to s 132(5) and commented – It is clear by the very words of that section that the Parliament was not limiting the issues to reasonableness, negligence, indecency, obscenity or dangerousness. It seems to me that whether or not a complainant in a sexual assault trial is accepted beyond reasonable doubt is a quintessential jury issue. Further, the Crown submits that any issue so far as the accused's whereabouts after 28 November 2004 [is concerned] can be dealt with by way of an agreed fact … [although the defence] argues in response that that is simply the accused having to fight the case with one hand tied behind his back, in effect, in that he is not able to fully indicate to the jury where he was at the time. 1. His Honour then returned to his earlier theme that he had "yet to see anything to suggest juries here do not follow any instructions … [and] would be told and directed in the clearest terms not to speculate". Further, his Honour considered that the accepted fact that the applicant was not in the area and could not have committed the offence after 28 November, "would have been the end of that" and added that it was "simply not necessary for the accused to recount the criminal activities leading to his arrest in respect of matters on 27 November." Submissions 1. Mr O'Neil, counsel for the applicant, pointed to the fact that neither the "application of objective community standards" nor the applicant's intention are relevant in this case. He submitted that, by characterising the question whether a complainant in a sexual assault should be accepted beyond reasonable doubt as "a quintessential jury issue", his Honour was in effect acting on the basis that a jury was a more appropriate decider of such a crucial fact than a judge. The problem of prejudice was not sufficiently overcome by adopting the suggestion of the Crown that the applicant's evidence be censored. He contended that the applicant's absence from 28 November was inextricably interwoven with the events of the previous day, which were crucial to the persuasiveness of the applicant's evidence that he could actually recall the events of that day and the jury should accept the truth and reliability of his evidence that he had not seen the complainant at the party. The forensic desirability of this line of evidence was very much a matter for the applicant and his advisers and the applicant should not have to place on the scales the possible prejudice which might adversely affect the jury's consideration of his defence. Moreover, the events occurred many years before and the jury might well be sceptical about any account given by the applicant of his activities at what was said to be the only party attended in the year were it not for the corroborative detail which marked that and the subsequent day as memorable. 2. The Crown submitted that it was open to the trial judge to conclude that a jury was better able than a single judge to assess the relative credibility of the complainant and the applicant. At all events, since the application depended upon establishing that the applicant would be prejudiced by disclosure of the truth, it was open to his Honour to find that means were available to avoid the prejudice to which the applicant pointed. Consideration 1. In R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 Hamill J (if I may say so with respect) comprehensively summarised the cases dealing with the application of s 132 of the Act, starting with the principle (to which reference has already been made) in Belghar that, although there was an evidentiary onus on the applicant, there was no presumption in favour of a jury trial and no legal onus on the accused who seeks an order for trial by judge-alone: the question is what is in the interests of justice. The next material point is that, although the accused has no right to trial by judge alone, his or her election for such a trial is to be taken into account as a matter to be weighed in determining where the interests of justice lie: Simmons at [60]. 2. The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales. As Hamill J noted, there are a number of judicial statements commending the ability of juries to assess credibility and reliability of witnesses but "…it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are essential to a trial, that is a factor that militates strongly in favour of a jury trial" (Ibid at 75). His Honour concluded – [82] …[For] the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone … [Each] mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question[s] of credibility, putting aside matters of emotion, on an almost daily basis. 1. (I would add the additional consideration that, here, the effect of delay on the ability of the applicant to defend himself is a complicating feature.) 2. The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J that "…many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices" (Simmons at [53]). Furthermore, it is to be assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88]). Conclusion 1. On a fair reading of the trial judge's reasons, it seems to me (with respect) that, as distinct from merely emphasising the jury's suitability for judging credibility in a word against word case, his Honour acted on the basis that a jury is a superior tribunal of fact for this purpose. This was a significant error: the interests of justice are not determined by suppositions about the relative abilities of judge or jury to determine facts, though in some cases – such as those enumerated in s132(5) – a jury may be the more appropriate tribunal, other things being equal. 2. Evidence that the applicant could not have been at a birthday party on or, for that matter, after 27 November is obviously relevant and could not be excluded. Nor can the applicant be prevented from being entirely candid about the matter, not because the fact might be disputed, but because his credibility will be judged against that of the complainant and a suspicion in the jury's mind about a lack of candour could be unjustly engendered were he to appear to be concealing matters from them; the jury will assess his truthfulness on their overall view about him as a witness. For obvious reasons, the proposal of the Crown did not ameliorate this problem. A direction that the jury must not speculate about the circumstances does not answer this problem, even supposing it were effective to prevent the implication that something adverse to the applicant was being kept from them. The question then arises whether directions by the trial judge not to use the evidence of wrongdoing adversely to the applicant would suffice. Likely it would, but a real risk would remain that it would not. These cases are emotionally fraught and the offences naturally instigate powerful feelings of disgust. The applicant cannot rely on evidence of good character. In short, the applicant must make a choice between full disclosure on the one hand and the real risk of adverse prejudice on the other. 3. In my respectful view, the trial judge erred in concluding, in effect, that the applicant's fair trial would not be compromised by requiring him to agree to limit the evidence as proposed by the Crown or otherwise take the risk of being adversely prejudiced by giving a candid account. The risk of unfair prejudice would be entirely removed were the applicant to be tried by judge alone. Accordingly, it is in the interests of justice that the trial proceed in that way. Orders 1. Accordingly, I propose the following orders – (i) leave to appeal be granted; (ii) the decision below be quashed; and (iii) the trial proceed by judge alone. 1. R A HULME J: This case turns on its own facts and may be resolved simply for the reason given by Adams J in the paragraph of his judgment immediately preceding his proposed orders. I agree that those orders should be made. 2. There is an observation I wish to add concerning the fact that the application came before his Honour Judge Lerve on the very day the matter was fixed for trial (although he had been alerted to it the previous business day). The applicant required leave, his application not having been made "not less than 28 days before the date fixed for the trial": s 132A of the Criminal Procedure Act. An explanation for the lateness of the application was provided in the affidavit of the applicant's solicitor which was read in the District Court. 3. The late notice to the trial judge was regrettable (at least) and meant that he was required to determine the application expeditiously, given that he had a jury panel in waiting. His Honour's reasons clearly demonstrate that he had a thorough appreciation of the legal principles to be applied but he was denied the opportunity that this Court has had for more timely consideration of their application. Another aspect of this is that I would hesitate before engaging in precise analysis of terminology used by his Honour in his ex tempore judgment (particularly as to his use of the term "quintessential jury issue"). ********** 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: 28 May 2015