Citation: R v Sean Lee King [2013] NSWSC 448
Court: Supreme Court of New South Wales
Date: 4 April 2013
Judge: Bellew J
Background
The accused was charged with murdering a young woman at a Sydney apartment on 10 July 2011. The Crown alleged he repeatedly beat, kicked, and stomped on the deceased following a series of threatening phone calls he had made to her earlier that evening. At arraignment, the accused pleaded not guilty to murder but guilty to manslaughter; the Crown did not accept that plea.
The trial was listed to commence on 8 April 2013. By notice of motion filed less than 28 days before that date, the accused applied under s 132 of the Criminal Procedure Act 1986 (NSW) for an order that he be tried by judge alone, rather than by jury. The Crown opposed the application.
The accused's central defence was that, due to his consumption of methylamphetamine and alcohol before the killing, he was unable to form the requisite intention to commit murder. He supported this with expert pharmacological evidence and also relied on pre-trial internet publicity as a reason to remove the matter from a jury.
Legal Issues
- Whether it was in the interests of justice, under s 132 of the Criminal Procedure Act 1986, to order a judge-alone trial.
- Whether the issue of intention to murder was one requiring the application of community standards, such that it was better resolved by a jury.
- Whether the nature and extent of pre-trial internet publicity was sufficient to justify a judge-alone trial.
- Whether the potential cost and resource savings from a judge-alone trial were a relevant consideration in the exercise of the discretion.
Decision
Intention and community standards
Bellew J rejected the submission that the complexity of the pharmacological and psychiatric evidence about intoxication warranted removal from a jury. The question of whether the accused had the intention to murder is one that calls for the application of community standards, and such questions are precisely what juries exist to determine. The fact that expert evidence would be called did not transform the ultimate question into a purely technical or scientific one beyond the competence of a jury.
Pre-trial publicity
The court acknowledged that internet articles had been published about the accused, including one noting that he had been on bail at the time of the offence in relation to separate assault charges. However, Bellew J found this publicity was not of such a nature or extent as to justify displacing the jury trial. The court noted the strong presumption in favour of trial by jury, observed that juries are trusted to follow judicial directions, and found that appropriate directions would adequately address any prejudice arising from pre-trial material.
Cost and resource savings
The accused's submissions pointed to the potential saving to the community from a shorter judge-alone trial. Bellew J firmly rejected this as a relevant factor. Drawing on the Court of Appeal's analysis in Pambula District Hospital v Herriman, the court held that the general cost and delay associated with jury trials are consequences the legislature has chosen to accommodate and cannot be weighed in the s 132 discretion.
Overall conclusion
Bellew J was not satisfied that it was in the interests of justice to order a judge-alone trial. The notice of motion was dismissed.
Orders Made
- Leave granted to the accused under s 132A of the Criminal Procedure Act 1986 to make the application (the Crown did not oppose leave despite the application being filed fewer than 28 days before trial).
- The notice of motion filed by the accused on 19 March 2013 was dismissed.
- A suppression order under the Court Suppression and Non-Publication Orders Act 2012 that had been made in respect of the judgment was vacated by a further order of the court on 29 April 2013.
Key Takeaways
- The Supreme Court confirmed that the question of whether an accused formed an intention to kill is one requiring the application of community standards, and is therefore a matter well within the proper province of a jury, even where expert pharmacological or psychiatric evidence is involved.
- Under s 132 of the Criminal Procedure Act 1986, the governing test is whether a judge-alone trial is in the interests of justice. The threshold is a high one, and the strong presumption in favour of jury trial is not easily displaced.
- Pre-trial internet publicity does not automatically justify a judge-alone trial. The court will consider whether appropriate jury directions can adequately address any risk of prejudice, and will proceed on the assumption that a properly directed jury will follow those directions.
- Cost savings and efficient use of court resources are not relevant considerations in the s 132 discretion. These factors are features of all jury trials and cannot be used to tip the balance in any individual case.
- Refusing the application, the court emphasised that each application turns on its own facts. The presence of expert evidence, alone, does not make a case unsuitable for jury determination.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Criminal Procedure Act 2004 (WA)
- Evidence Act 1995 (NSW), ss 97, 98
- Jury Act 1977 (NSW)
- Supreme Court Act 1970 (NSW)
- Court Suppression and Non-Publication Orders Act 2012 (NSW)
Cases
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Chapman v Gentle (1986) 28 A Crim R 29
- Gilbert v R (2000) 201 CLR 414
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R
- R v Booth; R v Box [1964] 1 QB 430
- R v Burrell [2004] NSWCCA 336
- R v D'Arcy (2003) 140 A Crim R 303
- R v Dudko (2002) 132 A Crim R 371
- R v Glennon (1992) 173 CLR 592
- R v Hood [1968] 1 WLR 773
- R v Jamal (2008) 72 NSWLR 258; (2008) 191 A Crim R 1
- R v K (2003) 59 NSWLR 431