R v Hart [2015] NSWSC 1829

Supreme Court New South Wales

Medium Neutral Citation: R v Hart [2015] NSWSC 1829 Hearing dates: 2 December 2015 Date of orders: 02 December 2015 Decision date: 03 December 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application for a trial by judge order dismissed. Catchwords: CRIMINAL LAW - murder - jury trial - application for trial by judge order - adverse publicity - where some increased cost and delay likely - where pre-trial publicity following committal arguably prejudicial to the accused - where accused's involvement with drugs and firearms said to be likely to cause additional prejudice - whether in the interests of justice for trial by judge alone Legislation Cited: Criminal Procedure Act 1986 Category: Procedural and other rulings Parties: Regina (Crown) Campbell Anthony Hart (Accused) Representation: Counsel: M Cunneen SC (Crown) E Wilson SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Lamond Legal (Accused) File Number(s): 2013/00327594 Publication restriction: Nil

Judgment 1. HIS HONOUR: The accused applies pursuant to s 132 of the Criminal Procedure Act 1986 for a trial by judge alone. He is charged with the murder of Luke Hargraves at Lavington on 29 October 2013. The proceedings are listed for arraignment on 4 December 2015. The facts upon which the Crown proposes to rely at trial are in summary relevantly as follows. 2. At about 10.50pm on Tuesday 29 October 2013, a firearm discharged a .22 calibre projectile which struck Luke Hargraves just in front of his left ear. He was 31 years old. The bullet penetrated the left temporal region extending rightwards and slightly backwards through the brain causing lacerations of the left temporal lobe and left side of the brainstem. There was no evidence of gunshot residue, stippling or tattooing upon the deceased. He later died in Albury Base Hospital. 3. The incident took place in a room at 277 Vickers Road, Lavington, where the deceased lived. At the time of this incident the accused and the deceased were alone in the room with the door closed. The deceased was talking on his mobile phone to Shannon Turnbull. In the lounge room of the house were Jacinta Lekic, the deceased's partner and Olivia Bromham. Both women heard the sound of a shot, shortly after which the accused left the room and walked out the front door saying, "Luke just took a shot at me". 4. Earlier in the evening the accused spoke to the deceased, Ms Lekic and Ms Bromham about breaking up with his partner that day and causing damage to his house. When Ms Bromham left, the accused was invited to eat dinner. The deceased and the accused later went to the premises at Vickers Road. The accused purchased alcohol and some other items on the way. 5. Ms Bromham had returned to Vickers Road by the time they arrived. While she was out of the room the deceased drew Ms Lekic's attention to a pen gun in the possession of the accused. 6. The accused went to the "cinema" or "theatre" room and called for the deceased to come in. Ms Bromham went to retrieve a lap top cord from the room and at that time spoke to a witness named Quirk by mobile phone about pen guns. There was conversation in the room among the deceased, Ms Bromham and Quirk on the phone about buying pen guns. 7. The accused then produced a pen gun from his pocket and said: "Yeah, I got one." The accused told Ms Bromham the pen gun was not loaded. As she left the room the accused came and stood at the door. He appeared to be trying to use his phone. He swore and told the deceased he was trying to ring "his missus" but she would not answer. Quirk rang at 10.44pm and spoke to the deceased on his mobile phone for 2 minutes and 15 seconds, and offered to sell pen guns. The door of the room closed as Ms Bromham left. 8. At 10.38pm and at 10.42pm the accused called a witness named Jacob Schlieb. Jasmine Dysart made two calls to the accused without an answer at 10.36pm and 10.43pm. The accused then called her at 10.46pm. He said "G'day mate how are you". She asked him if he was alright and he hung up. The deceased rang Shannon Turnbull at 10.47pm. He was still speaking to Mr Turnbull when he was fatally shot. The firearm was not recovered. 9. The accused's application is supported by affidavits from the accused and his solicitor Graham Francis Lamond. The application is based upon the following contentions. 10. The accused grew up in Albury and his father ran a business in nearby Lavington. The evidence in the trial is expected to centre upon the accused's involvement in the use and supply of methylamphetamine in and around Albury. The important Crown witnesses are involved in the use or supply of that drug. There may also be some evidence to suggest that the accused was concerned in its manufacture. The accused is concerned that this evidence will create prejudice in the minds of potential jurors and that there is a real and substantial risk in such circumstances that it may not be dissipated or overcome by directions from the trial judge. Moreover, the evidence will likely reveal that the accused has committed other offences including a break enter and commit indictable offence, firearms offences and the destruction of a motor vehicle. It is also anticipated that several witnesses have been charged with drug related offences for which they may still be serving sentences requiring them to give evidence from custody. 11. The accused also contends that there is a real risk that, in accordance with Director's Guideline 24, a witness may so conduct himself or herself before the jury as to cause the trial to abort. No content is given to that contention. 12. The issues which the accused identifies as those likely to dominate at the trial are his intention and possible excessive self-defence or accident. He maintains that none of these defences raises or involves consideration of the application of community standards in accordance with s 132(5) of the Criminal Procedure Act. 13. The case has also allegedly attracted adverse publicity in the Albury area. 14. Finally the accused submits that there are real logistical difficulties associated with conducting the trial before a jury in the area in which the facts giving rise to the proceedings are alleged to arise. The relevant court is in Albury. The accused's counsel resides in Wagga Wagga. The estimate for the trial with a jury is from four to six weeks. There is a potential for the giving of evidence by 147 witnesses, although concessions by the accused concerning the date, place and cause of death may affect the reliability of that prediction. Subject to that prospect, the vast majority of witnesses to be called will come from the Albury area. It is anticipated that 59 of these will be police witnesses, 85 lay witnesses and three experts.