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42
Court of Criminal Appeal 4 May 2012

R v Belghar

[2012] NSWCCA 86

Also reported as (2012) 217 A Crim R 1
Assault & violence
CRIMINAL LAW 5F APPLICATION JURY TRIAL TRIAL BY JUDGE ALONE

Citation: R v Belghar [2012] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 4 May 2012
Judge(s): McClellan CJ at CL; Hidden J; Hislop J

Background

The accused faced charges in the District Court including attempted murder, arising from an incident at a shopping centre car park in which he allegedly lifted his sister-in-law over an external railing above a roadway, after a history of threats. The accused applied under s 132 of the Criminal Procedure Act 1986 to be tried by a judge alone. The Crown opposed the application.

The District Court judge granted the application. The Crown appealed that decision to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912.

The primary judge reasoned that the accused, as a Muslim man whose conduct was alleged to have been motivated by religious or cultural attitudes toward women, held a reasonable apprehension that a jury would not give him a fair trial, given adverse community sentiment toward people perceived to hold extreme Muslim beliefs. The judge also noted that the Crown had not identified any specific prejudice to itself or the community.

  • Whether the primary judge correctly applied s 132(4) of the Criminal Procedure Act 1986 in determining whether it was in the "interests of justice" to order a judge-alone trial over the Crown's objection
  • Whether an accused's subjective belief that they may not receive a fair jury trial is itself a sufficient basis for a judge-alone order, or whether that belief must be supported by objective evidence
  • Whether there is a presumption in favour of jury trial, or whether "onus" is the appropriate framing when considering a s 132 application
  • Whether the desirability of reasons for a verdict, and the efficiency of a judge-alone trial, are relevant factors in the interests of justice inquiry

Decision

The Court of Criminal Appeal allowed the Crown's appeal, finding that the primary judge had fallen into error in his approach to the s 132(4) application. McClellan CJ at CL delivered the principal judgment, with Hidden J and Hislop J agreeing on the outcome.

The Chief Judge found that the primary judge had given decisive weight to the accused's subjective apprehension of jury bias without requiring that apprehension to be grounded in objective evidence. A bare assertion by an accused that they fear unfair treatment by a jury is not sufficient. The apprehension must be supported by material that would lead a reasonable person in the accused's position to hold such a concern, and the court must assess the actual circumstances of the trial rather than generalised community sentiment.

The Court confirmed that jury trial is the normal mode of trial on indictment under the statutory scheme in NSW. It is for the accused to raise material that might justify departing from that norm, but the inquiry is not purely adversarial. Under s 132(4), the court must weigh the interests of justice in all the circumstances, including the community interest in jury trial that is expressly preserved in s 132(5). The accused cannot obtain a judge-alone trial simply by asserting a preference for one.

On the additional factors raised, the Court was sceptical that the desirability of reasons for a verdict or the efficiency of judge-alone trials were legitimate considerations in the s 132(4) inquiry as the law currently stands, though Hidden J and Hislop J preferred to express no concluded view on those points. The Court declined to characterise the framework as involving a formal "presumption" or "onus," noting that it is more accurately described as a structured balancing exercise in which the accused bears the burden of raising relevant material.

Orders Made

  • The Crown's appeal was upheld.
  • The decision of the primary judge granting the judge-alone trial order was quashed.

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986, a court may grant a judge-alone trial over the Crown's objection only where the interests of justice support it; the accused cannot obtain such an order merely by asserting a preference or a subjective fear of jury bias.
  • An accused's claimed apprehension of unfair treatment by a jury must be supported by objective evidence, not just a personal belief. Generalised community sentiment about a religious or cultural group is not, without more, sufficient to ground a reasonable apprehension.
  • Jury trial is the default mode of trial on indictment in NSW. A community interest in that mode of trial exists and is expressly recognised in s 132(5), meaning that interest must be weighed in any s 132(4) inquiry.
  • Hidden J cautioned against framing the s 132 inquiry in terms of a formal "presumption" or "onus," preferring instead to describe it as a process in which the accused must raise material capable of supporting departure from the normal mode of trial, before the court determines where the interests of justice lie.
  • Whether the desirability of judicial reasons for a verdict or trial efficiency can factor into a s 132(4) analysis was left open by Hidden J and Hislop J, though both expressed significant reservations about the relevance of those considerations under the current law.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A
- Criminal Appeal Act 1912 (NSW), s 5F
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW), ss 30, 33, 59, 344A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Jury Act 1977 (NSW)
- Criminal Procedure Act 2004 (WA)
- Supreme Court Act 1933 (ACT)
- Juries Act 1927 (SA); Juries Act 2000 (Vic); Juries Act 2003 (Tas)
- Criminal Code (NT); Criminal Code Act 1899 (Qld)

Cases:
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Arthurs v The State of Western Australia [2007] WASC 182
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- R v Fardon [2010] QCA 317
- DAO v R [2011] NSWCCA 63
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264
- R v GSR (3) [2011] NSWDC 17
- R v Markou [2011] NSWDC 25
- R v Kissier [2011] QCA 223