Citation: Bruce Donald Redman v R [2015] NSWCCA 110
Court: Court of Criminal Appeal, NSW
Date: 27 May 2015
Judges: Hoeben CJ at CL, Adams J, R A Hulme J
Background
The applicant, a 47-year-old Aboriginal man, faced two charges of sexual intercourse with a child under 10 years of age, allegedly occurring at Tilpa, NSW between December 2003 and December 2004. The complainant, who had been six or seven years old at the time, did not disclose the alleged offences until 2012. Her evidence of the circumstances was otherwise uncorroborated.
The applicant's proposed defence turned on a precise alibi. He intended to give evidence that the only evening party he attended in Tilpa during 2004 was a farewell function on 27 November 2004, after which he was arrested, charged, and remained in custody into January 2005. Independent witnesses could corroborate key details. The problem was that the same arrest also involved an incident in which the applicant produced a rifle, making the corroborating evidence highly prejudicial.
When the matter came on for trial in October 2014, the applicant applied under s 132 of the Criminal Procedure Act 1986 for a judge-alone trial. The Crown opposed the application. The trial judge refused it, and the applicant appealed to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912.
Legal Issues
- Whether the trial judge erred in refusing the s 132 application for trial by judge alone, where the Crown did not consent
- Whether the applicant's fair trial would be compromised by limiting his evidence to an agreed fact about his whereabouts after 28 November 2004
- Whether it was in the interests of justice for the trial to proceed before a judge alone, having regard to the real risk of unfair prejudice from the applicant's full alibi evidence
Decision
Adams J (with whom Hoeben CJ at CL agreed) held that the trial judge erred in refusing the application. The central problem was the dilemma the applicant faced: to establish the credibility and reliability of his alibi, he needed to give a candid account of the events of 27 and 28 November 2004, including the rifle incident that led to his arrest. Without that corroborating detail, his account that he could distinctly remember the only party he attended that year risked appearing implausible to a jury.
The Crown's proposed solution, that an agreed fact be tendered to confirm the applicant was not in the area after 28 November, did not resolve the problem. Adams J found this approach effectively required the applicant to fight the case with constrained evidence. A direction to the jury not to speculate would likely be insufficient given the emotionally charged nature of the charges and the powerful feelings of disgust such offences naturally provoke.
Adams J concluded that requiring the applicant to choose between full candid disclosure (with its attendant risk of serious prejudice) and a sanitised agreed fact (which undermined the persuasiveness of his defence) was incompatible with a fair trial. That risk of unfair prejudice would be entirely removed before a judge alone. It was therefore in the interests of justice to make the order.
R A Hulme J agreed, but added a note on the procedural context: the application was made on the day of trial itself, requiring the trial judge to rule quickly with a jury panel in waiting. His Honour observed that the trial judge's reasons showed a thorough understanding of the applicable principles and expressed caution about scrutinising the ex tempore language too closely, particularly the description of complainant credibility as a "quintessential jury issue."
Orders Made
- Leave to appeal granted
- The decision below quashed
- The trial to proceed by judge alone
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act 1986, where the prosecution does not consent to a judge-alone trial, the court may still make the order if it is in the interests of justice to do so; there is no presumption in favour of trial by jury.
- The Court of Criminal Appeal confirmed the principle from R v Belghar that the accused bears an evidentiary onus to show a judge-alone trial serves the interests of justice, but no particular weight attaches to the default position of jury trial.
- Where an accused faces a genuine dilemma between disclosing highly prejudicial evidence necessary to establish a credible alibi and suppressing that evidence at the cost of persuasive force, that dilemma can constitute a sufficient basis for a judge-alone order.
- A Crown offer to substitute an agreed fact for prejudicial evidence does not necessarily cure the fair trial concern, particularly where the prejudicial detail is inextricably connected to the reliability and persuasiveness of the accused's account.
- The decision is expressly confined to its unusual facts; R A Hulme J emphasised that the outcome turned on the specific circumstances rather than any broader principle about sexual assault trials or jury assessment of complainant credibility.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Crimes Act 1900 (NSW), s 66A
- Evidence Act 1995 (NSW)
Cases
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Simmons; R v Moore (No. 4) [2015] NSWSC 259