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1
District Court 2 February 2011

R v GSR (1)

[2011] NSWDC 14

Fraud & dishonesty
TRIAL BY JUDGE ALONE TRIAL BY JURY PRE TRIAL PUBLICITY "INTERESTS OF JUSTICE" TEST

Citation: R v GSR (1) [2011] NSWDC 14
Court: District Court of New South Wales
Date: 2 February 2011
Judge: GD Woods QC DCJ

Background

The accused, a medical practitioner, faced a fraud charge under s 178BA of the Crimes Act 1900 (NSW). The indictment alleged that between December 2001 and July 2003 he dishonestly obtained appointments as a visiting medical officer obstetrician and gynaecologist at two regional District Hospitals by falsely representing he was entitled to practise obstetrics.

The accused applied for trial by judge alone. The prosecution, represented by Senior Counsel for the Director of Public Prosecutions, opposed the application. The central complication was that legislation amending the judge-alone trial regime had only come into force on 14 January 2011, just weeks before this hearing.

The case therefore became the first occasion in New South Wales on which a court was required to apply the newly amended s 132 of the Criminal Procedure Act 1986, which removed the prosecution's power to veto a defendant's election for trial by judge alone.

  • Whether the court should make a judge-alone trial order under the newly amended s 132 of the Criminal Procedure Act 1986, in the absence of prosecution consent
  • What the "interests of justice" test in s 132(4) requires, and what considerations are relevant to its application
  • Whether extensive pre-trial publicity and highly prejudicial internet material supported a finding that judge-alone trial was in the interests of justice
  • Whether the nature of the charge (fraud compounded by evidence of prior disciplinary restrictions on the accused's practice) independently justified a judge-alone order
  • Whether the trial judge's prior involvement in an earlier related trial, which ended in a hung jury, created any apprehension of bias requiring recusal

Decision

The District Court granted the application for trial by judge alone, setting a trial date of Monday 7 February 2011. His Honour found that the "interests of justice" test, now set out in s 132(4), was satisfied on the particular facts of this case, with no presumption operating in favour of either mode of trial.

The dominant consideration was the substantial body of prejudicial pre-trial publicity. Exhibit VD1/A, tendered without objection by the Crown, demonstrated that the internet remained a repository of highly inflammatory material conveying strong public antagonism against the accused. His Honour accepted that this material, combined with the inherently prejudicial nature of certain Crown evidence (including prior disciplinary restrictions on the accused's practice), provided a compelling basis for the order, notwithstanding the Crown's submission that jury management directions could adequately address any prejudice.

His Honour declined to hold that the nature of the fraud charge alone, or the risk that a jury might impermissibly reason from the disciplinary history, independently warranted the order, acknowledging that such a factor might in a different case be relevant. The decision on this point was left deliberately narrow.

On the recusal question, his Honour noted that he had presided over an earlier related trial that ended in a hung jury, but he had made no findings of fact or credibility in that proceeding. He observed that judicial discipline ordinarily permits, and duty ordinarily requires, a judge to sequester extraneous matters from fact-finding, and he saw no basis for recusal in the circumstances presented.

Orders Made

  • The application for trial by judge alone was granted.
  • Trial was set to commence on Monday 7 February 2011.

Key Takeaways

  • The District Court confirmed that, under the amended s 132 of the Criminal Procedure Act 1986 (as reformed by the Courts and Crimes Legislation Further Amendment Act 2010), a court may order trial by judge alone over prosecution objection where it is satisfied that doing so is in the interests of justice.
  • This decision appears to be the first application of the new legislative regime in New South Wales, meaning no binding precedent existed at the time to guide the court's exercise of the discretion.
  • Extensive and ongoing prejudicial pre-trial publicity, particularly material accessible on the internet, was treated as a significant factor in favour of a judge-alone order, even where suppression orders and non-publication directions were in place.
  • Under s 132(5), a court may refuse to make an order where the trial will involve a factual issue requiring the application of objective community standards, such as reasonableness, negligence, or indecency, though this statutory consideration was not decisive on the facts here.
  • Prior presiding over related proceedings that ended in a hung jury does not, without more, require a judge to recuse from a subsequent judge-alone trial, provided no findings of fact or credibility were made in the earlier proceeding.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Crimes Act 1900 (NSW), s 178BA
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- TVM v Western Australia [2007] WASC 299
- Western Australia v Martinez & Ors [2006] WASC 25
- R v Fardon [2010] QCA 317
- Arthurs v The State of Western Australia [2007] WASC 182