Citation: R v Abrahams [2013] NSWSC 729
Court: Supreme Court of New South Wales
Date: 7 June 2013
Judge: Harrison J
Background
The accused was charged with murdering her young daughter between 10 and 18 July 2010. She was arraigned in May 2013 and pleaded guilty to manslaughter but not guilty to murder. The Crown did not accept the manslaughter plea in satisfaction of the indictment, meaning the murder charge was to proceed to trial, set to commence on 17 June 2013.
The accused's disappearance had attracted sustained and intense media coverage from August 2010, when she was reported missing, through to and beyond the arrest and charging of the accused and her partner in April 2011. The coverage extended across traditional media and the internet, including what the court described as material of "a vile, hateful and intemperate nature."
The accused applied under section 132 of the Criminal Procedure Act 1986 for an order that she be tried by a judge alone. The Crown opposed the application, triggering the court's jurisdiction to determine whether a judge-alone trial was in the interests of justice.
Legal Issues
- Whether the volume and nature of pre-trial publicity and internet activity was so intense and pervasive that a fair jury trial was impossible.
- Whether a trial judge's directions to the jury would be adequate to neutralise any prejudice arising from that publicity.
- Whether the graphic nature of the evidence, including pathology evidence and evidence relating to the burning and burial of the deceased's body, would cause jurors to be adversely affected in a way that could not be cured by directions.
- Whether the sole remaining issue at trial, namely the accused's intent (the dividing line between murder and manslaughter), was a factual question requiring the application of objective community standards under section 132(5), which would weigh against a judge-alone trial.
- Whether, in all the circumstances, making a judge-alone order was in the interests of justice under section 132(4).
Decision
Harrison J dismissed the application, finding it was not in the interests of justice to make a judge-alone order. His Honour worked through each of the considerations raised by the accused and found that none, individually or collectively, crossed the threshold required.
On pre-trial publicity, the court acknowledged the coverage had been extensive and, in parts online, plainly vicious. However, the court drew on established authority recognising that courts have consistently and successfully managed highly publicised trials, including some of the most notorious cases in NSW history, through jury directions. His Honour was not persuaded that the publicity here was of such a character as to make a fair jury trial impossible, noting that the ability of jurors to follow judicial directions is a foundational premise of the jury system.
On the graphic nature of the evidence, including pathology and evidence about the disposal of the deceased's body, the court acknowledged this was distressing material. However, his Honour was not satisfied that its impact would be so extreme that no jury could evaluate it dispassionately, particularly with appropriate judicial directions.
On the section 132(5) question, the court accepted cautiously that intention can, in some cases, involve the application of objective community standards, though it found this was not such a case. The point was not ultimately decisive, given the conclusion on the interests of justice test in section 132(4).
Orders Made
• The application for a trial by judge order should be dismissed.
Key Takeaways
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Under section 132(4) of the Criminal Procedure Act 1986, where the prosecution opposes a judge-alone application, the court retains a discretionary power to make the order only if satisfied it is in the interests of justice to do so. The accused carries a significant burden in demonstrating that a fair jury trial cannot be achieved.
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Extensive pre-trial publicity, including hostile internet material, does not of itself justify a judge-alone order. The Supreme Court reaffirmed the established position that judicial directions to juries are presumed capable of neutralising prejudice, even in highly publicised and emotionally charged cases.
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The introduction of section 132 in January 2011 removed the prosecution's former absolute veto over judge-alone applications. Earlier authorities addressing permanent stay applications are therefore of limited direct assistance under the new framework, as Harrison J noted by reference to R v Belghar.
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On the section 132(5) question, the court declined to hold that the issue of intention can never involve the application of objective community standards, while finding that this particular trial did not raise such an issue in a way that would engage the provision.
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In dismissing the application, the court reinforced that judge-alone trials under the contested limb of section 132 remain available only in a limited range of circumstances, consistent with the stated policy intent expressed by the Attorney-General in the Second Reading Speech.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases:
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
- R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258
- R v Dean [2013] NSWSC 661
- R v Sean Lee King [2013] NSWSC 448
- R v Stanley [2013] NSWCCA 124
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- R v Glennon [1992] HCA 16; (1992) 173 CLR 592
- Arthurs v The State of Western Australia [2007] WASC 182
- R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
- R v Burrell [2004] NSWCCA 185
- R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303
- Long v R [2002] QSC 054; (2002) 128 A Crim R 11
- R v Milat (NSWCCA, 26 February 1998, unreported)
- R v Bell (NSWCCA, 8 October 1998, unreported)
- R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387