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District Court 16 April 2012

R v FH

[2012] NSWDC 283

Sexual offences
CRIMINAL LAW APPLICATION FOR TRIAL BY JUDGE ALONE TRIAL EXPERT EVIDENCE SEXUALLY EXPLICIT MATERIAL FRESH EVIDENCE

Citation: R v FH [2012] NSWDC 283
Court: District Court of New South Wales
Date: 16 April 2012
Judge(s): Neilson DCJ

Background

The accused faced nine counts of sexual offences against a complainant who was a child at the relevant times, plus one count of possessing child pornography. The offences spanned several years and included acts of indecency and multiple allegations of sexual intercourse with a minor. The tenth count related to a cropped photograph of the complainant found on a computer used by the accused.

At the first trial in October 2011, the jury returned a unanimous guilty verdict on count 9 (possession of child pornography) but was unable to reach either a unanimous or majority verdict on counts 1 to 8. The jury was discharged in relation to those eight counts, and a re-trial was listed to commence on 16 April 2012.

When the re-trial date arrived, the accused applied under s 132 of the Criminal Procedure Act 1986 for the re-trial to proceed before a judge alone rather than a jury. Neilson DCJ, who had presided over the first trial, was the judge before whom the application was made.

  • Whether the court should grant an election for trial by judge alone under s 132 of the Criminal Procedure Act 1986 on a re-trial of eight counts following a hung jury
  • Whether the presence of expert evidence about computer forensics justified a judge-alone trial
  • Whether the late service of fresh expert evidence by the Crown was a ground for a judge-alone election
  • Whether the judge who presided at the first trial, and who must sentence the accused on the guilty verdict already returned, was in a compromised position to act as the tribunal of fact at the re-trial
  • Whether an issue estoppel argument arising from the jury's verdict on count 9 affected the remaining counts

Decision

Neilson DCJ refused the application for trial by judge alone. Three grounds were advanced in support of the application: the presence of expert computer evidence, the late service of fresh Crown expert evidence, and a utilitarian argument about efficiency. The judge found that none of these grounds, individually or together, justified departing from a jury trial.

On the expert evidence point, the judge characterised the computer forensics evidence as relatively straightforward, capable of being understood by any juror with basic computer familiarity. The Crown's fresh expert report from Phillip Moore supplemented rather than superseded the evidence given at the first trial, and the appropriate remedy for late service was an adjournment, not a judge-alone election. The judge also noted that the accused appeared to be seeking to preserve options on both fronts, rather than committing to either course.

The most significant factor in the refusal was the judge's assessment of his own position. Having presided at the first trial, having heard all the evidence, and being required to sentence the accused on the guilty verdict already entered on count 9, Neilson DCJ concluded he could not approach the re-trial as a blank slate. The re-trial turned substantially on a credibility contest between the complainant and the accused, and the judge considered it would be invidious for him to act as the tribunal of fact in those circumstances.

The judge added that even if the timing problem could have been overcome by listing the matter before a different judge at another venue, he would still have refused the application on its merits. The overall conclusion was that this was not an appropriate case for judge-alone trial.

Orders Made

• The application for trial by judge alone is refused.

Key Takeaways

  • The District Court held that a judge who has presided over an earlier trial involving the same complainant, the same accused, and substantially the same evidence, and who must sentence on an existing conviction, may be in too compromised a position to act as the tribunal of fact at a re-trial on the remaining counts.
  • Late service of expert evidence by the Crown does not of itself constitute a ground for an election for trial by judge alone; the appropriate remedy is an adjournment to allow the defence time to respond.
  • Expert evidence on computer forensics, characterised as relatively straightforward and accessible to ordinary jurors, did not satisfy the threshold for preferring a judge-alone trial over a jury.
  • A utilitarian or efficiency-based argument alone is insufficient to justify an election for trial by judge alone under s 132 of the Criminal Procedure Act 1986.
  • Where a practical remedy existed (listing before a different judge at another venue) but was not pursued in time, that failure was treated as a relevant consideration against granting the application.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A(1)
- Jury Act 1977 (NSW), s 54(1)(b)

Cases:
- Arthurs v State of Western Australia [2007] WASC 182
- R v Fardon [2010] QCA 317
- R v GSR (1) [2011] NSWDC 14
- R v GSR (3) [2011] NSWDC 17
- R v Kissier [2011] QCA 223
- R v Markou [2011] NSWDC 25.1
- TVM v State of Western Australia [2007] WASC 299