Supreme Court New South Wales Medium Neutral Citation: R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176 Hearing dates: 20 and 26 August 2019 Date of orders: 27 August 2019 Decision date: 06 September 2019 Jurisdiction: Common Law - Criminal Before: Wright J Decision: 1. The application of Sami Hamalainen for a separate trial is dismissed. 2. The applications of Robert McCloskey and Sami Hamalainen for a trial by judge order are dismissed. Catchwords: CRIMINAL LAW – Preliminary applications – application for separate hearing – evidence of admissions by co-accused not admissible against accused – prejudice can be adequately mitigated by appropriate directions – not a weak case against accused made immeasurably stronger by evidence inadmissible against accused but admissible against co-accused – interests of justice do not require matters to be tried separately CRIMINAL LAW – Preliminary applications – application for trial by judge order – evidence of bad character likely to lead to risk of prejudice in front of a jury and risk jury may reason impermissibly – risk adequately mitigated by appropriate directions – media coverage and nature of alleged crime no so egregious as to require judge alone trial provided appropriate directions are given – court should proceed on the basis that jury will comply with directions – balancing all factors, not in the interests of justice to make a trial by judge order Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Fittock v The Queen (2003) 217 CLR 508; [2003] HCA 19 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Landsman v R (2014) 88 NSWLR 543; [2014] NSWCCA 328 Nader v R [2018] NSWCCA 256 R v Abu Hamza [2007] QB 659 R v Ahmed [2019] NSWSC 55 R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 R v Dellapatrona (1993) 31 NSWLR 123 R v Fernando [1999] NSWCCA 66 R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 R v Kearnes; R v Paton [2013] NSWSC 1139 R v McNeil [2015] NSWSC 357 R v Middis (NSWSC, 27 March 1991, unrep) R v Oliver (1984) 57 ALR 543 R v Pham [2004] NSWCCA 190 R v Poynton (No. 3) [2017] NSWSC 1772 R v Qaumi (No 3) [2016] NSWSC 15 R v Qaumi (No 14) [2016] NSWSC 274 Redman v R [2015] NSWCCA 110 R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 R v Stanley [2013] NSWCCA 124 R v Villalon [2013] NSWSC 1516 RFK v R [2016] NSWCCA 116 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 Category: Procedural and other rulings Parties: Regina Robert John Stewart McCloskey Sami Esko Hamalainen Representation: Counsel: C Taylor (Crown) G Brady SC (Hamalainen) D McMahon and C-F Vulpeanu (McCloskey) Solicitors: Office of the Director of Public Prosecutions (Crown) Eliopoulos Lawyers (Hamalainen) Kapsis Solicitors (McCloskey) File Number(s): 2017/356657 (Hamalainen)2017/354632 (McCloskey) Publication restriction: Non-disclosure and non-publication order in relation to paragraph 10 of affidavit of Chris Kapsis sworn 19/08/2019 pursuant to section 8(1)(c) of the Court Suppression and Non Publication Orders Act 2010 Judgment 1. In the interests of brevity and without disrespect, I shall refer to the accused by their initials, RM and SH. 2. The Court has before it the following pre-trial applications: 1. an application by SH for a separate trial made by notice of motion filed on 25 July 2019; 2. applications by RM and SH for a trial by judge order made by notices of motion filed on 25 July 2019. Background 1. The accused, RM and SH, are each charged on one indictment with one count of murdering John Salafia on 23 June 2013 at Kings Point in New South Wales. For some time, the matters have been listed for trial commencing on 26 August 2019. The nature of the parties' cases and the evidence 1. The prosecution's case as outlined in the Crown case statement is as follows: "BACKGROUND 1. The accused in this matter are Robert John Stewart McCloskey (42 years) and Sami Esko Hamalainen (42 years). 2. McCloskey has been a member of The Rebels Outlaw Motorcycle Club for over 10 years. He was previously the President of The Sydney City chapter of the club. 3. Hamalainen is the President of the Ulladulla chapter of The Rebels Outlaw Motorcycle Club. He has been a member of the club for over 10 years. 4. The deceased, John Paul Salafia (36 years at death) was a member of The Rebels Outlaw Motorcycle club for a short period around 2002. He had been a close associate of Hamalainen as they grew up together in the Ulladulla region. MOTIVE 5. In the years prior to June 2013 the deceased and Hamalainen had a number of personal issues and Hamalainen strongly disliked the deceased. 6. The deceased was in a de-facto relationship with Sara Woodcock for almost 10 years. Prior to that Woodcock had dated Hamalainen and claimed he had drugged and raped her on one occasion. Hamalainen denied this. 7. Hamalainen was aware that the deceased had insulted Hamalainen's son … who is autistic. This angered Hamalainen. 8. From late 2012 through to June 2013 the deceased was regularly associating with Steven Balshaw, a nominee for the Comancheros Outlaw Motorcycle Club in the Ulladulla area. This association caused issues between the deceased and the Ulladulla chapter of The Rebels. 9. In the weeks prior to the murder the deceased and Balshaw bashed a young drug dealer, Luke Sanderson, and allegedly flushed his illicit drugs down the toilet. Hamalainen became concerned that the deceased was taking over the town and his "trade" in drugs. INFORMER EVIDENCE 10. The inculpatory evidence in this matter comes from three informer witnesses. Two such witnesses … had close relationships with both accused and also the deceased. They give details of events around the time of the murder and of admissions made directly to them by one or both of the accused. Some of these admissions were legally recorded on listening device. 11. A further informer gives details of admissions made by Hamalainen following the murder. AGREEMENT TO MURDER 12. On 18 June 2013 Hamalainen travelled to Sydney and met with McCloskey at Mascot. During this meeting Hamalainen asked McCloskey to murder the deceased and the murder was planned. McCloskey and his "crew" from the Sydney chapter of The Rebels were to kill the deceased and Hamalainen was to provide a vehicle for their use. 13. On Saturday 22 June 2013 Hamalainen said to a witness, "I'm sick of Johnny running around and that. Robbie and his crew are coming down to fix Johnny." GET AWAY CAR 14. Following the meeting Hamalainen purchased a 1999 white Subaru Forester New South Wales registration VYJ-881, from Noel Meades of Bawley Point. A witness attended the home of Meades with Hamalainen and drove the vehicle to bushland at the back of Milton with Hamalainen following in his vehicle. As instructed, the witness left the keys on the floor of the vehicle and left the scene with Hamalainen. 15. On Saturday 22 June 2013 two associates … from the Nowra chapter of The Rebels met with the witness at Hamalainen's request. The witness showed them where the vehicle was hidden and the vehicle was moved further into the bush. 16. On the morning of 23 June 2018 the witness was instructed to meet with McCloskey and show him where the vehicle was positioned. They met at Termeil Shops. McCloskey was alone. He showed McCloskey where the vehicle was hidden. MURDER 17. At about 10.10pm on Sunday 23 June 2013 the deceased was at his residence at 96 Kings Point Drive, Kings Point with his two daughters, Dakota Woodcock (his step daughter who was at that time 12 years) and Tanika Salafia (at that time 6 years). His de-facto partner was at work at that time. 18. McCloskey and three of his crew drove to Kings Point Drive, Kings Point in vehicle VYJ881, the white Subaru Forester. At the time it was raining heavily. McCloskey and his crew approached the deceased's front door. McCloskey was armed with a firearm (either .38 or .357). The wooden front door sits behind a mesh covered metal front security door. 19. One of the males knocked on the security door and the deceased opened the wooden door but the security door remained closed. The deceased said, "What?" McCloskey discharged his firearm at the deceased through the security door five times. The deceased was struck in the chest, right buttock and head and fell to the floor. McCloskey and the other males ran back along Kings Point Drive, Kings Point, got into vehicle VYJ881 and left the area. 20. The deceased's daughters were in bed in the front bedroom, adjacent to the front door. They had overheard the confrontation and thought that it may have been a domestic dispute between the deceased and their mother. They saw the deceased on the floor in front of the television and thought he was asleep. 21. About 10:30pm the deceased's de-facto partner, Sara Woodcock, returned home and saw the wooden front door open and the screen door closed. This was unusual as the deceased would always have the door shut at night. 22. Woodcock walked towards the front door and saw the deceased lying on the lounge room floor. She opened the screen door and saw that he had a wound to his head and blood on his chest. She checked him and called triple 0. She received CPR instructions from the operator. 23. A short time later ambulance arrived, followed by police. The deceased was treated for some time, but he died at the scene at 10.56pm. A crime scene was established. CRIME SCENE 24. The residence is a single storey 3 bedroom relocatable home with a veranda running along the front. The main entry is in the centre and opened on to the lounge room. A sensor security light installed on the veranda was not operational. 25. An impact damaged lead fragment (marker A) was found on top of the dining table in the south west corner of the living room. 26. An impact fired bullet was removed from a chest of drawers facing north on the southern wall in the living room (marker B). 27. A fired lead bullet was found in the hallway (marker C). 28. An impact damaged fired lead bullet was located on the couch positioned next to the front door (marker E) and the ceiling above had sustained bullet impact damage (marker E1). The bullet located in marker E caused the ceiling damage. 29. In front of the couch on the floor was several items of clothing from a spilled wash basket that had sustained bullet related damage. 30. The rug on the living room floor sustained areas of bullet related damage caused by the same bullet (marker C1 C2). A reverse trajectory of the bullet's path indicated that the bullet travelled from the front door of the house. 31. The flyscreen door sustained five areas of bullet related damage and all five bullets were discharged from outside the house. 32. Located in the front veranda was in impact damaged fragment of lead (marker D). 33. The muzzle to target range at the time of discharging the firearm could not be established. POST MORTEM 34. A post mortem examination was conducted on Tuesday 25 June 2013 by Doctor Brouwer, Forensic Pathologist. The accused had sustained three gunshot wounds and direct cause of death was a gunshot wound to the chest. 35. The deceased had sustained an irregular shaped bullet entry wound on the top left side of the head with a corresponding exit wound. The bullet path was determined to be front to rear and right to left (all directions are given in the anatomical position) and the firearm was distant to the deceased at the time of discharge. 36. The deceased had sustained an oval shaped bullet entry wound on the left side of the chest and the fired bullet was located in the spinal column. The bullet path was determined to be front to rear and right to left and slightly down. 37. The deceased had sustained a roughly circular shaped bullet entry wound on the right buttock. An impact damaged bullet was located in the right buttock. The bullet path was determined to be rear to front, right to left and horizontal. VEHICLE VYJ-881 38. McCloskey and his crew drove vehicle VYJ-881 away from the crime scene and returned it to the bush. Two associates then drove the vehicle further into the bush and burned it immediately after the murder. Due to the torrential rain and the fact [the two associates] were not familiar with the area the position of the vehicle was far from ideal. 39. Hamalainen drove from Ulladulla to Shoalhaven Hospital at Nowra to visit his sick son. He arrived at Nowra around 6pm and returned to the Ulladulla area around 10pm. He then picked up the witness from his home. 40. Immediately after the murder Hamalainen travelled with a witness to Bawley Point where Hamalainen instructed the witness to warn Noel Meades, the previous owner of the vehicle, not to tell police that Hamalainen had purchased vehicle VYJ881. The witness visited Meades on a further occasion with a second witness thereafter at the instruction of Hamalainen to give the same warning. 41. In the days following the murder Hamalainen instructed the witness to find of from [one of the two associates] where the vehicle was hidden. [One of the two associates] indicated that given the treacherous weather conditions and the fact that he did not know the area he would have to show the witness where the vehicle was. It took them some hours to find it. 42. Hamalainen was disgruntled with the position of the burnt out vehicle and arranged a car trailer to move it further in the bush to hide it from police. The witness, his son, the second witness and his son assisted Hamalainen to move the vehicle. 43. About 9.30am on Monday 1 July 2013 police were called to a dirt track off Woodburn Road, Morton, and recovered vehicle VYJ881, a 1999 white Subaru Forester that had been completely destroyed by fire. ADMISSIONS BY McCLOSKEY 44. In August 2016 McCloskey told a witness the following: "Well that was me. I did it with two guys from Sydney. [Another person] and his mate. … We went there and I hid out the front to the side of the door and knocked. The other two were in front of the door, down the steps. Johnny came to the door and said, "What the fuck do you want?" I jumped in front of the door and Johnny said, "Robbie!" I went, bang! Bang! Bang! Bang! I got him in the chest and missed with one. I opened up the door and leant right over him. There was blood pumping out of him and he was screaming. I went, bang, right in the head. He was on the ground shaking." "It was a favour for Sami. You know what the guys got for it? Two pounds of cannabis, that's it." "We took two guns, I used a .38 and one of the other boys had a .22 but they didn't use that one. We were wearing Comanchero jumpers we ripped from some bloke in Sydney. We left the car with Sami and [another person] to burn it out that night in the bush. The other boys fucked off back over the mountains, Brown's Mountain way." 45. Around October 2016 McCloskey told a witness the following: "Well, I'm pissed off with Sami!" "The guns we used for Johnny, we gave them to Sami and he put them in bleach. He fucked them up because he left them in the bleach too long. They cost $10,000 and all the boys got was two pounds of pot. The Afghani boys are pissed off with Sami, they were going to come down and knock him because they were that pissed off with what he done." "They're pissed off but I've had to sort it, I told Sami to go to Thailand for three weeks. But I'm pissed off because I have to give the boys the ten grand now. Can you lend me a few thousand so I can give them something?" "Sami arranged Johnny's murder, and came up to Sydney to have dinner with us and said Johnny was taking over the town and hanging with the Commos and shit. I got really pissed off when I found out later that Sami was pissed off with Johnny because Johnny went around to that young blokes place and took those drugs off him and flushed them down the toilet. They were Sami's drugs. I wouldn't have done it if I had known it was only because of that pissy shit." 46. On Wednesday 21 December 2016 the witness was provided with recording devices by police. A conversation was recorded between the witness and McCloskey where McCloskey detailed the murder and admitted shooting the deceased. 47. On Monday 12 June 2017 the witness was provided with recording devices by police. A conversation was recorded between the witness and McCloskey where McCloskey discussed the vehicle that was used during the murder. 48. On Friday 28 June 2017 a conversation took place between the witness and McCloskey where McCloskey said the following: "The cops are so close to locking up Sami up for murder. The cops are looking at me too. Tell Sami to fuck off to Finland in the next two weeks and keep his mouth shut or I'll put a bullet in his head. I'm sick of him going on about it. Sami was trying to get Tricky do drugs with him and then he was telling Tricky something about the murder. Sami was pissed at this party the other night at JJ's." ADMISSIONS BY HAMALAINEN 49. On Monday 3 July 2017 the witness was provided with recording devices by police. A conversation was recorded between the witness and Hamalainen where the witness passed on a message from McCloskey that Hamalainen should leave for Finland. Hamalainen said: "I don't care, it's nothing to do with me. Robbie should be the one worried, he's the one who will get locked up for it. I will fight it." 50. On Wednesday 5 July 2017 the witness spoke to Hamalainen and Hamalainen said: "[Another person] has more to worry about than me, he went down there and picked those blokes up." 51. Hamalainen left Australia on Wednesday 26 July 2017 and travelled to Finland. He returned to Australia some weeks later. ADMISSIONS BY HAMALAINEN 52. Sometime after the murder a witness visited Brad Howarth and his partner Kristy with Hamalainen in Ulladulla. Hamalainen pointed towards the laundry sink and said, "This is where they cleaned the guns". Hamalainen pointed to Howarth and said, "this fucking idiot couldn't do one thing and fucked up". 53. Around 28 November 2014 the witness spoke with Hamalainen and asked him if he was involved in the murder. Hamalainen said, "I got Robbie to do it, and a couple of guys from Sydney came down". "He was trying to take over the town, and he called [my son] a spastic, that's your god son what would you do?" "It had nothing to do with me I didn't do it" 54. In about 2015 the witness was driving with Hamalainen on Carisbrook Road from Brooman Road. They turned up a road (possibly Poisonbox Road) that also meet up with Flat Rock Road. Hamalainen pointed out two cars that were burnt out. One was a station wagon. Hamalainen said, "That's the car that they used out at Johnnies murder... We pushed it down the bush with the white Toyota after we moved it". The witness said, "Why did you do it?" Hamalainen replied, "Because he called [my son] a spastic, because of all the stuff with Sara, because he was going take over the town and Johnnie was going to get me or I was going to get Johnnie". 55. A few months later the witness and Hamalainen had a routine of walking in the morning. On one of these walks Hamalainen said: "I had to get it done, he was going to shoot me, he called [my son] a spastic, he met up and had an argument and he said he is going to get me first". 56. Hamalainen told the witness that should it look he was going to be arrested it was his intention to flee to Finland and live overseas. ADMISSIONS BY HAMALAINEN 57. Hamalainen spoke to a witness prior to the murder and said: "I'm sick of Johnny running around and that, Robbie and his crew are coming down to fix Johnny." 58. Following the murder Hamalainen said to the witness: "Robbie went too far and shot Johnny." ARREST OF McCLOSKEY/DECLINE INTERVIEW 59. About 6.10am on Thursday 23 November 2017 McCloskey was arrested at 13 Wharf Road, Surfside. He was cautioned and taken to Batemans Bay Police Station, where he was entered into custody. He was offered the opportunity to participate in an electronically recorded interview. He declined and was charged. ARREST OF HAMALAINEN/DECLINE INTERVIEW 60. Following the arrest of McCloskey on Thursday 23 November 2017 Hamalainen purchased an airline ticket to fly to Finland on 24 November 2017 in an effort to flee the jurisdiction. On Friday 24 November 2017 Hamalainen was driven to Sydney International Airport by an associate and progressed through to the customs area. He was arrested by Australian Federal Police and later came into the custody of NSW Police. He was arrested and cautioned and conveyed to Mascot Police Station. He was offered the opportunity to participate in an electronically recorded interview. He declined. He agreed to his refusal being recorded along and adopted some conversations with police earlier at the airport. He was then charged." 1. RM has pleaded not guilty. As disclosed in RM's notice of defence response, RM's case is that he is not guilty of the count on the indictment. He has put in issue the following facts and circumstances: 1. whether he murdered the deceased by shooting him; and 2. the truthfulness and reliability of the admissions allegedly made by him to witness RS 1591297, which are the admissions referred to in pars 44, 45 and 48 of the Crown case statement, as well as the recorded admissions referred to in pars 46 and 47. 1. SH has pleaded not guilty. His case, as disclosed in his notice of defence response, is that he was not involved in any joint enterprise to murder the deceased nor was he involved in organising the murder. Accordingly, SH has put in issue all the facts, matter and circumstances going to whether he was involved in the murder of the deceased. In addition, SH contends that admissions made by RM are not admissible against him. 2. In my rulings on evidence given on 26 August 2019, I held that, among other things, the evidence of admissions made by each of the accused after the deceased was killed was not admissible against his co-accused. Evidence on the applications 1. RM relied upon the following evidence in support of his application for a trial by judge order: 1. The affidavit of Chris Kapsis sworn 16 August 2019 which disclosed that his costs had been estimated at $173,250 for the trial and that RM's parents would be providing the funds. This was said to place a significant burden on their savings and, if further legal costs were involved, it would place RM's father in a very difficult financial position. 2. The affidavit of Chris Kapsis sworn 19 August 2019, which is the subject of a non-disclosure and non-publication order. It is sufficient to note here that I have taken the matters stated in that affidavit, which were not challenged by the Crown, into account in reaching my decision on the application for a trial by judge order. 1. In support of SH's applications for a separate trial and a trial by judge order, the affidavit of Chris Eliopoulos sworn 19 August 2019 was read. This evidence established that after proceedings were commenced against SH the case was reported in the media and there were a number of reports published on the internet. In addition, a facebook page entitled "Justice for Johnny Salafia" was created in about November 2017 when SH was arrested. That page has slightly more than 2,160 active followers. Witnesses likely to give evidence at the trial are said to have commented on this facebook page. 2. The evidence also established that SH has $220,000 available to meet all his legal fees and other expenses. This has been borrowed from his partner and her father. It is said that time spent by legal representatives in preparation of the matter has been minimised. 3. The affidavit also states: "12 If the trial is ultimately separated and adjourned and given the Crown position and preference that the co-accused Robert John McCloskey is to be tried first, then the applicant is liable as under the terms of the costs agreement, that he forfeit 10 days preparation and 5 days cancellation. The agreement states that he is liable to pay $123,750 if the trial was separated and adjourned. He would then be left with $96,250 and wold not be able to afford his current lawyers for a subsequent trial in the future. It would be unlikely that the applicant could afford a five week trial in the future if he is left with $96,250." 1. Also before the Court was a table setting out evidence which could be led by tendering written statements and in other ways which were said to be more efficient and likely to save time, if the trial proceeded before a judge alone. 2. I shall deal with SH's application for a separate trial first and then RM's and SH's applications for a trial by judge order. SH's separate trial application Submissions 1. SH submitted that there should be separate trials on the basis that: 1. there is evidence admissible against RM that is inadmissible against SH; 2. that inadmissible evidence is of an exceptionally damning nature against SH; 3. that inadmissible evidence would be likely to turn an acquittal into a conviction amounting to a positive injustice. 1. It was submitted that the admissions made by RM point strongly to RM being present and include evidence that RM acted at the direction of SH. This latter point was said to be "exceptionally damning while being wholly inadmissible". 2. In addition, it was contended in effect that if there was a joint trial, a jury would be likely to reason impermissibly in that, if the "strong case" against RM that he committed the murder at the request/on behalf of SH was proved, the inference would be irresistible for a jury that the "weaker case" against SH must be inevitably proved because, on the Crown case, RM committed the offence on the direction of SH. 3. The impermissible reasoning was said to be strengthened by the fact that RM's admissions accord with the Crown case. Thus, those admissions strengthen the Crown case against RM and are therefore also likely to strengthen the Crown case against SH. RM's admissions are also likely to be used to support the evidence of the other witnesses. This was said to be similar to the situation in R v Pham [2004] NSWCCA 190 (Pham) at [7] and [8]. 4. The submissions on behalf of SH acknowledged that RM would be seeking to establish that his admissions were not true. It was submitted that, even if the jury came to the conclusion that they were exaggerated, this would still leave the fact that RM, who was good friends with SH, implicated SH. To the extent that RM's contesting his admissions raises his further bad character, it was said that the more RM is seen as a person of bad character, the more the likely prejudice will flow to SH. 5. Finally, SH submitted that so many of the witnesses being registered informers will impact upon the jury believing SH is the head of the organisation and therefore must have been involved in the murder. 6. The Crown opposed an order for separate trials and submitted that the relevant principles were those set out in Nader v R [2018] NSWCCA 256 at [57]-[74]. Relevant statutory provisions and principles: 1. Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides: "… (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: … (b) the offences arise out of the same set of circumstances, … (3) Proceedings related to … 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 1. There is no doubt that the offence in the present case alleged to have been committed by each of SH and RM arises out of the same set of circumstances. Accordingly, the Court may hear and determine the present proceedings against both SH and RM together, unless the Court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. 2. The general rule is that where persons are charged with committing an offence jointly, they are to be tried together: Webb and Hay v The Queen (1994) 181 CLR 41 (Webb); [1994] HCA 30; Nader v R at [57]. In Webb, Toohey J (with Mason CJ and McHugh J agreeing) said at 88-89, [25]: "when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (R v Demirok (1976) VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427 at 585.)" 1. It is in the interests of justice that the whole picture is presented to the members of the jury. A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged: Ali v The Queen (2005) 214 ALR 1 at [58]; [2005] HCA 8. 2. It must be recognised, as is clear from the passage from Webb quoted above, that some prejudice to one or other accused is inevitable in any joint trial and that is a factor which must be taken into account in striking the necessary balance: R v Dellapatrona (1993) 31 NSWLR 123 at 133; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 (Rogerson No 3) at [68]. 3. Where prejudice may arise because there is evidence which is admissible against one accused but not the other, that prejudice is to be addressed by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused: Webb at 89. In that regard, the common law proceeds on the assumption that the jury will obey any direction which is given by a trial judge: Gilbert v The Queen (2000) 201 CLR 414 at [13] and [31]; [2000] HCA 15. 4. Questions of cost and inconvenience are not irrelevant in determining whether separate trials ought to be ordered: R v Middis (NSWSC, 27 March 1991, unrep) (Middis); R v Oliver (1984) 57 ALR 543 at 547. This question involves a degree of balancing of factors: R v Kearnes; R v Paton [2013] NSWSC 1139 (Kearnes) at [38]. 5. Nonetheless, it must be accepted that, where there is a real risk of positive injustice to an accused from a joint trial, the general rule must give way, and separate trials should be ordered: Rogerson No 3 at [62] and the cases there cited. 6. A real risk of positive injustice may arise where, as in the present case, there are alleged admissions directly admissible against one accused but completely inadmissible as hearsay evidence against the other accused. In such a case, it has been accepted that the question of whether there is a real risk of positive injustice such that there should be separate trials can be answered by considering the three principles identified by Hunt J (as his Honour then was) in Middis: see for example, R v Fernando [1999] NSWCCA 66 at [210]; Kearnes at [30]-[34]; R v Qaumi (No 3) [2016] NSWSC 15 at [128]. Hunt J in Middis said as follows: "Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." 1. If, when placed on the scales, the inadmissible, prejudicial material would be likely to turn a potential acquittal to a conviction then this may amount to "positive injustice": Pham at [39]. 2. In relation to these principles, it should be noted, however, that in this context, "immeasurably" does not mean enormously, but rather in a way that cannot be quantified with precision or "significant, though incommensurable": Pham at [39]; Kearnes at [35] and [36]. Thus, "immeasurably" can be seen as importing the notion of a significant strengthening of the case. Consideration 1. The submissions made on SH's behalf put the argument for a separate trial squarely on the basis of the principles in Middis. Accordingly, it is appropriate to consider, first, whether the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM. Secondly, the Court is required to assess whether the evidence of RM's admissions contains material highly prejudicial to SH although not admissible against him. And, finally, the question whether there is a real risk that a weaker Crown case against SH will be made significantly stronger by reason of the prejudicial material is to be addressed. 2. At the start of this analysis, it is necessary to note that the joint criminal enterprise alleged by the Crown does not involve SH and RM participating in the same acts in furtherance of the enterprise. Their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the other's participation. On the Crown case, once SH had secured RM's agreement to come down with his crew to the Ulladulla region and kill the deceased, SH's role was primarily to arrange for a car to be provided for RM and his crew and to dispose of the car after the killing. By way of contrast, RM's role in the enterprise, on the Crown case, was to shoot the deceased. 3. Turning to the first question, the evidence against SH includes, without being exhaustive: 1. evidence of SH's motive for wanting the deceased killed; 2. direct evidence of SH travelling to Sydney and meeting RM; 3. evidence of an admission by SH, on the day before the deceased was killed, that SH was sick of the deceased, Johnny, and RM and his crew were coming down to fix Johnny; 4. evidence of SH directing and participating in buying the Subaru, organising for it to be hidden in the bush, organising one of the witnesses to meet two other men who were to burn the car after the deceased was killed, instructing the witness to meet RM and show him where the car was and instructing that the car be refuelled as RM requested; 5. evidence that after the deceased was killed, SH instructed a witness to warn the person from whom the Subaru had been bought not to tell police that SH had bought the car; 6. evidence that SH organised for the car, after it had been burnt, to be moved further into the bush to make it less likely to be found and SH himself participated in moving it; 7. evidence of admissions by SH on 28 November 2014 that: 1. SH got RM to do it and a couple of guys from Sydney came down; 2. SH's motive was that the deceased was trying to take over the town and had called SH's son a spastic; 3. "it had nothing to do with me I didn't do it"; 1. evidence of statements by SH indicating he knew that the guns used in the shooting of the deceased had been damaged when they were being cleaned in bleach; 2. evidence of SH in about 2015 identifying to a witness a burnt out car and saying "[t]hat's the car they used on Johnny's murder … we pushed it down the bush with the white Toyota after we moved it"; 3. evidence of admissions by SH in about 2015 when identifying the burnt out car and some months later as to SH's motive being that the deceased had called SH's son a spastic, allegations concerning Sara, the deceased was trying to take over the town and the deceased was going to get SH or SH was going to get the deceased; 4. evidence of admissions by SH after the deceased was killed that RM went too far and shot the deceased; 5. recordings using listening devices of admissions made by SH; and 6. evidence of SH attempting to fly to Finland immediately before he was arrested and after RM had been arrested. 1. The evidence admissible against RM is of the same nature and includes: 1. direct evidence of RM meeting with SH, RM coming down to the Ulladulla region, RM being shown where the Subaru was by a witness and requesting that it be refuelled; 2. evidence of admissions by RM in August 2016 concerning how RM shot the deceased, how the guns used had been damaged when they were being cleaned with bleach, that RM did it as a favour for SH, that SH had arranged the murder and that SH's motive for doing do was that the deceased was taking over the town, hanging with those associated with the Comancheros and had interfered with drugs supplied by SH; 3. recordings using listening devices of admissions made by RM; 4. evidence of admissions by RM saying on 28 June 2017 that the police were close to locking SH up for murder and were after RM. SH should be told to go to Finland and keep his mouth shut. 1. I have already held that the admissions made by each of SH and RM after the deceased was killed are not admissible against the other accused. 2. In my view, it could not properly be said that the evidence admissible against SH in relation to the existence of the joint criminal enterprise and his role and participation in it is weak. It consists of direct evidence of what SH did and said as well as the significant admissions made by SH. 3. Nor is the evidence against RM different in nature from the evidence against SH. In each case, there is direct evidence of actions taken by each co-accused and, if the evidence is accepted, it could be found that those actions were in furtherance of the joint criminal enterprise as alleged by the prosecution. In addition, there were substantial admissions, some of which are recorded and some of which are contained only in the evidence of the witnesses. I note that, according to his defence response, RM proposes to challenge the truthfulness and reliability of the admissions referred to in pars 44, 45 and 48 of the Crown case statement as well as the recorded admissions referred to in pars 46 and 47. 4. In substantial part, the differences in the direct evidence concerning SH and RM and the differences in the admissions made by each of SH and RM arise out of, and reflect, their different roles in the alleged joint criminal enterprise. 5. In light of these circumstances, this is not a case where the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM. Consequently, this is not likely to be a case where the principles in Middis might lead to the conclusion that the matters ought to be heard and determined separately in the interests of justice. 6. As to the second question, whether the evidence against RM contains material highly prejudicial to SH although not admissible against him, I have accepted that the admissions made by RM after the deceased was killed are not admissible against SH. It can also be accepted that there will be some prejudice to SH if evidence inadmissible against him is led in a joint trial and that evidence implicates him. I am not satisfied, however, that the material in RM's admissions should be characterised as so "highly prejudicial" to SH as to lead to there being a positive injustice if there is a joint trial for three reasons. 7. First, while RM's admission as to how he shot the deceased is certainly graphic, that part of the admissions does not relate directly to SH at all. It is not part of the Crown case that SH was directly involved in the actual shooting of the deceased nor do RM's admissions indicate in any way that SH was so involved. Thus, any prejudice to SH arising out of this part of the admissions by RM being led in evidence when they are inadmissible against SH would only arise indirectly or by association. 8. Secondly, those aspects of the admissions which implicate SH in the joint criminal enterprise are essentially that RM participated as a favour for SH, at SH's request and that SH arranged Johnny's murder. The extent of any prejudice which these admissions, being inadmissible against SH, may cause SH if led in evidence during the trial must be assessed against the evidence admissible against SH in relation to those same issues. 9. As has been noted above, there is direct evidence that SH organised to meet RM in Sydney and afterwards SH said, while arranging for a witness to meet RM and show RM where the car was before the deceased was killed, that RM and his crew "are coming down to fix Johnny". There is also evidence of SH's own admissions that he got RM "to do it and a couple of guys came down from Sydney" and that he, SH, "had to get it done" as the deceased "was going to shoot me. He called [my son] a spastic, he met up and had an argument and he said he is going to get me first". This is not a case where there is no, or very weak, evidence admissible against SH that he instigated the alleged joint criminal enterprise. Thus, the prejudice that might potentially arise out of RM's admissions in this regard is much more limited than might otherwise be the case. 10. Thirdly, given the indirect and limited prejudice that is likely to arise, such prejudice is, in my view, more readily addressed and would be adequately alleviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. 11. As to the final question arising out of the Middis principle, for the reasons I have already given, there does not appear to me to be a real risk that the weaker Crown case against SH will be made "immeasurably" or significantly stronger by reason of the inadmissible, prejudicial material being before the jury. Given the nature and extent of the evidence admissible against SH, the Crown case against him should not be considered to be "weaker" in any relevant respect. Nor will it be made "immeasurably" or significantly stronger by reason of the inadmissible, prejudicial material, especially if appropriate directions are given to the jury concerning this evidence and the use that can properly be made of it. 12. For these reasons, I do not accept SH's submission that the evidence inadmissible against SH is "exceptionally damning" nor that such evidence would be likely to turn an acquittal for SH into a conviction. Thus, I also do not accept, as SH submitted, that there is likely to be a positive injustice if there is a joint trial. 13. Furthermore, this was not a case, like Pham, where the jury was, in effect, required, separately to form two assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of an interview and the other, by ignoring it: see Pham at [8] and [33]-[34]. This will be a trial in which there will be a number of items of evidence that will be admissible against one but not the other accused. It will be necessary for the jury to understand clearly the case against each accused and the evidence that is available to be taken into account in relation to each accused and that which is not. That is not an unusual situation in joint trials of multiple accused. As Hunt J said in Middis, "some prejudice to one or other accused is inevitable in any joint trial". 14. RM did not also seek a separate trial. 15. Finally and although these considerations are not determinative, I have taken into account the practical aspects of a joint trial as compared to separate trials in these matters including what the length of separate trials might be and the need for some witnesses to give evidence more than once, if there are separate trials. I have also had regard to the fact that if there are separate trials, it appears, from the paragraph from Mr Eliopoulos's affidavit quoted above, that SH's ability to fund his trial may be prejudiced. These factors weigh to some extent in favour of a joint trial in the present matters. 16. SH has not demonstrated that a joint trial would work a positive injustice and I am not of the opinion that the matters ought to be heard and determined separately in the interests of justice. In my view, a joint trial remains appropriate in all the circumstances. Accordingly, SH's application for a separate trial should be dismissed. Order 1. For all of these reasons, I order that the application of Sami Hamalainen for a separate trial is dismissed. Judge alone trial application Submissions 1. In general terms, RM was prepared to adopt and rely on the submissions made in relation to this application by SH's counsel. 2. The accused relied upon a combination of factors as supporting the conclusion that it is in the interests of justice for there to be a judge alone trial, even though it was acknowledged that each factor alone may not be sufficient to lead to the applications being successful. 3. One factor that was said to be more significant was that a judge alone trial would obviate the need for separate trials. As I have rejected the application for separate trial for the reasons given above, this factor is inapplicable. 4. It was also submitted that considerations including those identified in R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 (Belghar) at [110], concerning the speed and flexibility of a judge alone trial, and at [112], concerning the benefit of a reasoned judgment, favoured a judge alone trial. 5. The other factors relied upon included that: 1. this case did not involve factual issues requiring the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness; 2. evidence of bad character of the accused will be led in the present case, including evidence of this nature which may be led by RM in order to challenge the truthfulness of the admissions alleged to have been made by RM to RS1591297 at pars 71-87, on the basis that RM was seeking to intimidate that witness. The decision as to whether or not to lead this evidence was said to be made difficult if the trial is with a jury because the decision involves balancing the risk of potential prejudice in front of a jury against the risk of compromising the full and proper presentation of the case. It was submitted that an accused should not be put to such an election; 3. the situation was said to be further complicated by the late service of a statement from RS1915592. It is apparently RM's case that it was this witness, not RM, who shot the deceased; 4. the motives alleged against SH involve other criminal activity including drug supply activities and an alleged rape by SH (although that will be subject of objection under s 137 of the Evidence Act if the matter proceeds by way of a jury trial); 5. there is a risk that the bad character evidence will be used impermissibly by the jury, not just as to motive, but as proof of the fact that SH organised the murder, by reasoning that SH is a drug dealer, drug dealers shoot other drug dealers to protect their interests, thus SH is more likely to have committed the offence because he is a drug dealer; 6. "the case for both accused involves a concession that both are guilty of being accessories after the fact to the murder of the deceased" and this, together with disclosure of bad character as members of an OMCG will be highly prejudicial; 7. there are benefits from a judge alone trial in that jurors may be affected by matters of possible prejudice but a judge is said to have the training and experience so as to be able to put aside matters of emotion; 8. the risk of evidence of bad character operating unfairly to an accused is alleviated in a judge alone trial by the exposure of the reasoning process which is involved in the provision of reasons for judgment by a judge; 9. adverse media coverage, such as has occurred in the present case in the past and is likely to occur during the trial, reinforces the risks associated with potential misuse of evidence of bad character by a jury; 10. the circumstances of the case involving a man being shot in his own home while his children were within ear-shot together with evidence of bad character is likely to overwhelm a jury so as to lead to difficulties dealing with this in a dispassionate manner; 11. given the animosity between numerous people in the Crown case and the accused, there is a real risk of entirely irrelevant evidence being given leading to the discharge of the jury which would not be a risk in a judge alone trial; 12. there are efficiencies available in a judge alone trial including that uncontested evidence is more easily and shortly given in documentary form. 1. In addition, it was submitted that the prejudicial material in the present case would attract the same conclusion as reached by Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 (Simmons No 4) at [116] where it was held, in relation to what was described as "a most unpalatable defence" that: "I find it difficult to see how the accused can fairly conduct that defence and expect a jury of right minded people from the community to put aside his admitted criminal propensity in determining in a cold, scientific, dispassionate and judicial manner whether the Crown has proved its case of murder beyond a reasonable doubt." 1. The submissions on behalf of SH and RM also drew attention to the comments concerning whether there is any difference in the relative ability of jurors and judges to assess credibility in Redman v R [2015] NSWCCA 110 at [14]. 2. The Crown submitted that some of the relevant principles could be derived from R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 and Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 (Farrugia). It was also noted that in RFK v R [2016] NSWCCA 116 at [42] and [48] it was observed that the decision in Redman was a case decided on its own facts, which are quite different from the present case. 3. The Crown also noted the absence of specific material indicating how the accused would run their cases, and submitted that any prejudice could be adequately addressed by careful directions. Relevant statutory provisions and principles 1. Section 131 of the Criminal Procedure Act establishes the general position that criminal proceedings in the Supreme Court are to be tried by a jury, except as otherwise provided by Pt 3 of that Act. Part 3 contains, among others, ss 132 and 132A. 2. Section 132A governs when and by whom an application for a judge alone trial may be made. That section relevantly provides: "(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless: (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. …." 1. In the present case, the application was made more than 28 days before the date fixed for trial and all the accused have applied in respect of the only offences with which they are charged and which are being proceeded with at the trial. The Crown opposes the making of a trial by judge order 2. In the circumstances of the present case, s 132 relevantly provides: "(1) An accused person … in criminal proceedings in the Supreme Court … may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). … (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) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. …" 1. The task of determining an application for a trial by judge order under s 132 should not be approached by reference to "presumptions" or "assumptions" in favour of a jury trial: Belghar at [96]; R v Villalon [2013] NSWSC 1516 (Villalon) at [20(i)]. 2. Nonetheless, the task cannot be undertaken without bearing in mind that trial by jury: 1. is the conventional approach and, in the absence of an order under s 132, is mandated by s 131: Farrugia at [9]; and 2. is underpinned by the public interest in protecting the citizen from the executive and judicial power of the State by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts: Farrugia at [10] citing McHugh J in Fittock v The Queen (2003) 217 CLR 508; [2003] HCA 19 at [23]. 1. The "interests of justice" test in s 132(4) confers a wide discretion on the Court determining the application: R v Stanley [2013] NSWCCA 124 at [23], R v Poynton (No. 3) [2017] NSWSC 1772 (Poynton) at [33]. 2. Forming a view as to what the interests of justice require involves balancing the interests of the parties and also larger questions of legal principle, the public interest and policy considerations, which include the role of juries in the administration of criminal justice: Landsman v R (2014) 88 NSWLR 543 at [69]; [2014] NSWCCA 328 (in a different but related context), Poynton at [36]. 3. The factors identified in s 132(5) acknowledge the importance of the application of objective community standards in the resolution of a range of factual issues, some only of which are expressly identified: Farrugia at [10], Poynton at [34] and the cases there cited. Where the trial involves an issue which may be informed by community standards or expectations, the interests of justice may be best served by utilising a jury of laypeople: Belghar at [96], Villalon at [20(iii)]. 4. Where resolution of factual issues turns upon an assessment of the credibility of a witness or witnesses, relying on the judgment and experience of a jury of laypeople may also be in the interests of justice: R v McNeil [2015] NSWSC 357 at [102]-[104]. Whether this is so will depend on the circumstances of the particular case. There are cases such as Redman v Rat [14], which question whether there is a clear consensus in Australian authorities that credibility issues in a trial militate in favour of a jury trial. Redman has, however, been held to be a case that, in any event, turned on its own facts: RFK v Rat [42] and [48]. The training and experience of a judge in deciding matters of credibility putting aside matters of emotion must be assessed against the benefit of the range of experience and training of each of the twelve members of the jury who can discuss together and are required to reach a unanimous verdict. It can be observed as a matter of common sense that bias, especially unconscious bias, may be less likely to affect a decision made by a group rather than a decision made by a single decision maker. 5. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the Court may take judicial notice, is not sufficient to justify the making of a trial by judge order and is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Belghar at [102], Villalon at [20(vii)]. 6. The Court should generally proceed on the basis that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result: Belghar at [107], Villalon at [20(viii)]. 7. Decided cases indicate that the situations where judge alone trials may be preferable include, without seeking to be restrictive: 1. lengthy complex trials involving significant disputes between experts; and 2. where a fair trial cannot be achieved with a jury because, for example, a particularly horrendous crime has inflamed public sentiment in a small community: Farrugia at [11], Poynton at [37]. Consideration 1. The accused acknowledged in their written submissions that the factors they identify, taken separately, may well not lead to the conclusion that a trial by judge alone was in the interests of justice. 2. Although the charge of murder in the present matters does not involve the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness, the resolution of the factual issues will depend on the assessment of the credibility of witnesses. The actions and utterances to be considered in this regard are not specialised or scientific and do not appear to be likely to be more within the knowledge and experience of a judge rather than twelve laypersons, whose knowledge and experience may well be wider, if for no other reason than that there are twelve of them. In my view, the fact that many of the issues will turn on credibility is either neutral or may tend slightly in favour of a jury trial. 3. It can be accepted that, given the context of the joint criminal enterprise alleged in the present case, there will be evidence led as to the involvement in motor cycle gangs, illicit drug related activity, unlawful violence and other similar matters on the part of some or all of the accused and the witnesses who are registered sources. This evidence can be characterised as evidence of bad character. That evidence may be led by the accused as well as the Crown. There is, therefore, a risk of potential prejudice in front of a jury and also a risk that a jury may reason impermissibly, as the accused contended in their submissions. 4. Whichever form of trial is adopted that risk must be adequately managed so as to prevent there being an unfair and unjust trial. A trial by judge alone seeks to manage the risk by depending on: the judge's training and experience in decision making; the requirement to explain his or her process of reasoning leading to the conclusions reached; and the judge complying with the obligations inherent in the judicial oath or affirmation. In a trial by jury, the risk is sought to be managed by depending on: the judge, with the assistance of counsel, crafting clear and careful instructions to the jury on how they are to approach their task, on what reasoning is impermissible and on what evidence they may rely; the jurors complying with those directions; and the jurors complying with the obligations inherent in the jury oath or affirmation. 5. I do not accept that in cases involving motor cycle gangs, illicit drugs and violence, and where the evidence relied upon includes admissions and evidence from police informers, a fair trial can generally only be had if it is by judge alone. As explained by Hamill J in R v Qaumi (No 14) [2016] NSWSC 274 at [120] and [121], a jury trial in such cases can be conducted fairly and without injustice provided safeguards are put in place to ensure, as far as possible, that the jurors will act in accordance with their oaths and affirmations and will not be influenced by matters of emotion and prejudice and, in this regard, the law operates on the assumption that the juries generally obey and act upon the directions provided by the trial Judge. Further, the prejudicial evidence can be limited to what is necessary in the interests of justice, by the good sense of counsel involved and, where necessary, rulings excluding evidence, so as to minimise the risk of the jury being improperly influenced. 6. Accordingly, I do not accept that the nature and extent of the evidence of bad character that might be led in the present matters itself justifies a finding that it is in the interests of justice for there to be a judge alone trial. 7. There has been media coverage and social media comment in the present case in the past and there is likely to be further coverage and comment during the trial. This does create a risk that a jury might be influenced by such coverage and comment. The question of whether extensive media coverage means that a trial by judge alone is required in the interests of justice has recently been considered by Schmidt J in R v Ahmed [2019] NSWSC 55 (Ahmed). It is worthwhile quoting her Honour's reasons at some length. She held: "33. The impact of such extensive, prejudicial pre-trial publicity on the fairness of a jury trial where such directions were given, arose for consideration in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330. There the appellant was a well-known actor who had unsuccessfully defended serious charges involving sexual offences against children. That is also offending about which there is considerable community concern and interest, which the evidence established in that case was reflected in very extensive media coverage, as well as prejudicial, derogatory discussion and even ridicule of the appellant, pursued on social media. Nevertheless, it was concluded that did not establish that he had not received a fair trial: at [67]. There it was also observed: '66 Given how the internet and social media have developed since 2004 and how they now operate, as was explored during the pre-trial applications, when representatives of the media appeared, the efficacy of such steps is entirely questionable. That explains why few take down orders were pursued by the applicant, even during the course of the trial, which continued to attract considerable ongoing attention by both mainstream and social media. 67 That does not, however, mean that an accused who now becomes the subject of intense community interest, as the applicant did, cannot receive a fair trial. Nor did the evidence establish that the applicant's trial was not a fair one. 68 All of us, accused, victims, judges, jurors and other members of our community now live in a world of instant, largely unregulated communication of opinions disseminated by publication on social media, where they can endlessly be accessed and responded to by others. Such opinions range from the mildest of those depicted on the material in evidence (to the effect that if convicted the applicant should be appropriately sentenced), to the most extreme. In this case, that included satirical videos in the poorest of taste accessible on YouTube and even worse, commentary that not only denigrated the applicant in the way Zahra DCJ discussed, but which contained commentary which his Honour described as amounting to vigilantism. 69 The reality remains, however, that our civil society and the justice system which it has devised, is the means by which we help ensure that such views remain confined to social media, where those who hold such views are free to express them, rather than being acted on. 70 For centuries now, courts have had confidence that juries will decide the cases which they are called on to judge, on the basis of the evidence and that they will adhere to the directions which they are given by the presiding trial judges. Experience, including that revealed by this trial, demonstrates that despite fast moving technological advances which have provided people with enhanced means of communication, jurors still approach their tasks conscientiously. 71 There is good reason to continue in the expectation that, notwithstanding these technological developments and what they permit, juries will continue deciding cases on the evidence, in light of the submissions advanced at the trial by those who represent the parties to the proceedings and the directions of law which they are given by trial judges. This case demonstrates that jurors still accept that their decisions should not be made on the basis of what is published elsewhere, including on social media, about what falls to them to decide.' 34. Here it was also accepted by Mr Ahmed that take down orders would not be effective. 35. At trial the jury would thus have to be given directions which include that they must impartially approach the resolution of the issue lying between the parties as to the nature and impact of the condition Mr Ahmed suffered at the time that he killed Ms Elahi and whether, as a result he has a partial defence. Further, that its decision must be made only on the evidence, the parties' submissions and the directions they are given; that members of the jury must not make their own enquiries on the internet or otherwise, about Mr Ahmed and the circumstances in which he came to kill Ms Elahi; and that they are not to take into account anything that may have already have come to their attention about those circumstances. 36. There is no question that there is a risk, which exists at every trial, that a member of the jury will not adhere to such directions, but will access prejudicial material of the kind on which Mr Ahmed relies, to advance this application. Nevertheless, as observed in Hughes at [64]: 'As discussed in Dupas, at [26], it has been long settled that: .. the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza [See [2007] QB 659 at 685-686]: "Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."' 37. I do not accept that a different view can be taken in this case, despite the combination of factors relied on to advance Mr Ahmed's case. I am thus also not satisfied that the interests of justice require that his application for a judge alone trial be granted." (underlining added) 1. I note that a substantial part of the publicity surrounding the present matters occurred some time ago and is unlikely to be fresh in juror's minds, if present at all. Nonetheless, I accept that there is likely to be coverage of the trial in the media and it has given rise to, and may well give rise to more, social media activity and comment. 2. In relation to the capacity of current day juries to understand the nature of media reporting and of social media activity and comments and to comply with directions given to them during a trial that they are to disregard such reporting and comment and reach their decision only on the evidence before them, I respectfully adopt what was said by the English Court of Appeal, in R v Abu Hamza [2007] QB 659, and the reasoning of Schmidt J in Ahmed. The media and social media publicity and activity do not, in my view, require that the present matters be heard by a judge alone in the interests of justice. 3. It can be accepted that a man being shot in his own home while his children are within ear-shot in a context that involves rival motor cycle gangs, illicit drug activity, violence and similar matters is confronting. Unfortunately, it is not, in my view, a set of circumstances so unusual, horrendous and shocking in our present society that a jury, properly instructed, would be overwhelmed and incapable of dealing with the case in a dispassionate manner. 4. Furthermore, while there may be a risk of the animosity between witnesses and the accused leading to irrelevant evidence being given so that the jury might be required to be discharged, there is nothing at present to indicate that this risk is so great that the interests of justice require there to be a judge alone trial. 5. I have taken into account the potential benefits of the speed and flexibility of a judge alone trial and of a reasoned judgment being given by the judge, when a trial proceeds without a jury. Against this must be weighed considerations such as the public interest in generally having trials on serious charges determined by representatives of the community who are unanimous in their verdicts to ensure that the executive and judicial power of the State is not amenable to being misused against citizens. 6. Bearing in mind the principles identified above and the matters raised in submissions and balancing all the factors dealt with in the preceding paragraphs and the evidence, I do not consider it to be in the interests of justice to make a trial by judge order in the present matters. Order 1. Accordingly, that order of the Court is that the applications of Robert McCloskey and Sami Hamalainen for a trial by judge order are dismissed. ********** 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: 22 March 2023