Supreme Court New South Wales Medium Neutral Citation: R v BT [2017] NSWSC 1095 Hearing dates: 10, 11, 12 July 2017 Date of orders: 12 July 2017 Decision date: 12 July 2017 Jurisdiction: Common Law - Criminal Before: Hidden AJ Decision: Application for trial by judge alone refused Catchwords: CRIMINAL LAW – Application for trial by judge alone – murder – killing of baby girl by her father – whether prejudicial nature of the proceedings called for trial without a jury Legislation Cited: Criminal Procedure Act 1986 Jury Act 1977 Cases Cited: R v Adams (No 2) [2016] NSWSC 1359 R v Belghar [2012] NSWCCA 86, 217 A Crim R 1 R v Simmons & Moore (No 4) 249 A Crim R 120 Category: Procedural and other rulings Parties: Crown – The Queen Accused – BT Representation: Counsel: Crown – Ms M Cunneen SC with Mr PJ Strickland Accused – Mr H White Solicitors: Crown – Ms H Rallis - Director of Public Prosecutions (NSW) Accused – Ms E McWilliams - McWilliams Lawyers File Number(s): 2015/335406 Publication restriction: No 1. HIDDEN AJ: The accused, BT, is on trial for the murder of his infant daughter, HT, who was 8 weeks old at the time. The Crown case is circumstantial, and a significant part of its case is evidence of a tendency on the part of the accused to inflict violence upon the baby. I have allowed that evidence over objection: (refer to the tendency evidence judgment). The accused described to police an incident giving rise to the child's death which is exculpatory, but which the Crown contends is false. 2. The trial commenced on Monday 10 July 2017, but a jury was not empanelled at that stage so that the issue of tendency evidence could be argued and decided. On Tuesday, 11 July, counsel for the accused, Mr White, sought an order, pursuant to s 132 of the Criminal Procedure Act 1986, for trial by judge alone. This was opposed by the Crown prosecutor. On the following day, after hearing further argument, I declined to make the order. I outlined my reasons at that time, but it is appropriate that they be expanded upon in this judgment. 3. The application, of course, was well out of time. Section 132A(1) of the Criminal Procedure Act 1986 provides that such an application should be made no less than 28 days before the date fixed for trial, except with the leave of the Court. An explanation of the delay was forthcoming in an affidavit of the accused's solicitor and I granted leave. This was not opposed by the Crown prosecutor and, in any event, it appeared to me that the application raised an issue worthy of consideration. 4. Put shortly, Mr White argued that the nature of the case is such as to engender outrage in members of the community and it would be difficult for the members of the jury to put aside emotion and to consider the evidence dispassionately. This difficulty, he argued, was heightened by the circumstantial nature of the Crown case. There is no direct evidence of how the baby met her death. The Crown relies upon expert evidence to the effect that the injuries which caused her death, explained in a post-mortem report, are consistent with having been caused by the type of violence said to have been inflicted by the accused on earlier occasions which is the subject of the tendency evidence. Mr White noted that the nature of the act causing the baby's death, and whether it was done with the requisite intent, would be very much matters of inference. He submitted that the case calls for a measure of calm and unemotional deliberation which a jury would be unlikely to achieve, noting that the tendency evidence itself heightens the prejudicial aura of the proceedings. 5. Mr White relied upon the decision of Button J in R v Adams (No 2) [2016] NSWSC 1359. In that case his Honour directed a trial by judge alone because of the prejudicial nature of the proceedings. It was a murder trial in which the accused was alleged to have strangled a young woman and forced her to engage in sexual intercourse with him, causing her death. His Honour had allowed, as tendency evidence, evidence that on three other occasions he had forcible sexual intercourse with young women, in two cases by strangling them and, in the other case, by applying pressure to the woman's throat and threatening to choke her. The disturbing facts of those matters are summarised at [51] to [53] of his Honour's judgment. In directing a trial without a jury, his Honour expressed himself as follows: I am certainly satisfied that it will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to analyse the evidence against the accused dispassionately, objectively, and judicially. and considered that: Members of the jury would recoil in dismay and abhorrence when they hear the details of the many things the accused is alleged to have done to four separate women. at [57], [58]. 1. Trial by judge alone was examined comprehensively by McClellan CJ at CL in R v Belghar [2012] NSWCCA 86, 217 A Crim R 1. The effect of that decision and of other cases dealing with the issue was helpfully summarised by Hamill J in R v Simmons; R v Moore (No 4) 249 A Crim R 120. The accused bears an evidentiary burden, that is, the responsibility to point to material raising the issue, and he has done so in the present case. However, he bears no persuasive burden to satisfy me that an order for trial judge alone should be made. As the application is opposed, he has no right to demand trial by judge alone but it is relevant that he has an apprehension that trial by jury might not be fair and that, upon legal advice, he seeks trial without a jury. The present case does not raise factual issues requiring the application of community standards of the kind set out in s 132(5) of the Criminal Procedure Act 1986. 2. Undoubtedly, this is a distressing case. However, it is markedly different from Adams (No 2) (supra) and it does not engender the measure of prejudice surrounding that matter. That case involved evidence that the accused had committed three other unrelated offences of a very serious kind involving conduct similar to that charged. Here the Crown case, in effect, is that the accused engaged in a pattern of violence against HT over a period of about six weeks which, on the occasion in question, caused her death. I accept the Crown prosecutor's submission that, grave as the alleged conduct is, a jury can be expected to approach its task impartially. 3. Juries commonly deal with circumstantial cases, and cases involving tendency evidence are by no means infrequent. In some cases, as here, juries are called upon to decide a case in which tendency evidence is part of the Crown's circumstantial case. Judges commonly direct juries about how to approach both those types of evidence, and juries are rightly expected to understand and apply those directions. 4. Of course, the jury in the present case would be given a conventional direction about putting aside considerations of sympathy or prejudice. It should also be noted that at the outset of the trial the Crown prosecutor would address the jury panel in the terms of s 38(7) of the Jury Act 1977, and one of the matters the members of the panel would be asked to consider is whether the nature of the case is such that they could not give it their impartial consideration. 5. Having regard to all the circumstances, I concluded that this case is not one in which the interests of justice call for trial by judge alone. ********** 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: 06 December 2017