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Supreme Court 3 December 2015

R v Hart

[2015] NSWSC 1829

HomicideDrugsFirearms & weapons
CRIMINAL LAW MURDER JURY TRIAL APPLICATION FOR TRIAL BY JUDGE ORDER ADVERSE PUBLICITY WHERE PRE

Citation: R v Hart [2015] NSWSC 1829
Court: Supreme Court of New South Wales
Date: 3 December 2015
Judge: Harrison J

Background

The accused faced a charge of murder arising from the shooting death of a 31-year-old man at a residential address in Lavington on 29 October 2013. The two men were alone in a room when a .22 calibre pen gun discharged, fatally wounding the deceased. After leaving the room, the accused told others present that the deceased had shot at him.

The trial was expected to involve extensive evidence of the accused's involvement in the use, supply, and possibly manufacture of methylamphetamine in the Albury region, along with evidence of other alleged offences including break and enter, firearms offences, and destruction of a motor vehicle. Up to 147 witnesses were anticipated.

Before arraignment, the accused applied under section 132 of the Criminal Procedure Act 1986 for an order that the trial proceed before a judge alone, without a jury. The prosecution did not agree to that course, meaning the court had to determine whether a judge-alone trial was in the interests of justice.

  • Whether it was in the interests of justice, under section 132(4) of the Criminal Procedure Act 1986, to order a trial by judge alone despite the prosecution's opposition.
  • Whether pre-trial publicity in the Albury area created a real risk of jury prejudice that directions from a trial judge could not adequately address.
  • Whether the accused's alleged involvement with drugs and firearms would cause prejudice to a jury that could not be remedied.
  • Whether the anticipated factual issues at trial, including self-defence and accident, required the application of objective community standards, which would favour retention of a jury under section 132(5).
  • Whether logistical considerations, including cost and time savings from a judge-alone trial, supported the making of the order.

Decision

Harrison J dismissed the application. His Honour held that the statutory test required the court to be satisfied that a judge-alone trial was in the interests of justice, a broad discretion to be assessed on the particular facts. There is no presumption in favour of or against either mode of trial, and no legal onus rests on the accused, though there is an evidentiary onus on the applicant to establish grounds.

On the question of pre-trial publicity, Harrison J found that the articles cited by the accused contained little that would not already be known to any jury empanelled in the case. Much of the published material related to drug-related matters that would emerge in evidence at trial regardless. The publicity concerning firearms offences was, in any event, minimal. His Honour was not persuaded that the coverage created a risk of prejudice that could not be addressed through the ordinary mechanisms of a jury trial.

His Honour rejected the contention that the trial raised no issues requiring the application of objective community standards. The accused had indicated self-defence as a possible issue, and whether a person's response to a perceived threat was reasonable is precisely the kind of question that engages community standards under section 132(5). Questions of credit were also likely to arise, matters upon which juries are regularly and appropriately called to adjudicate.

On the logistical arguments, the Crown conceded some time and cost savings might result from a judge-alone trial, but Harrison J characterised those savings as marginal at best. Efficiency considerations alone did not constitute a sufficient reason to displace the ordinary mode of trial.

Orders Made

  • The application for a trial by judge alone order was dismissed.

Key Takeaways

  • Under section 132(4) of the Criminal Procedure Act 1986, where the prosecution does not consent to a judge-alone trial, the court may make such an order only if satisfied it is in the interests of justice to do so. The test involves a wide discretion assessed on the specific facts.
  • Pre-trial publicity does not automatically justify a judge-alone order. Where the published material largely mirrors what a jury would hear in evidence at trial, it is unlikely to establish the kind of irredeemable prejudice that would warrant displacing jury trial.
  • Self-defence is an issue that engages objective community standards within the meaning of section 132(5). A court may decline to make a judge-alone order where such issues are likely to arise, since juries are well suited to apply community standards to questions of reasonableness.
  • Anticipated cost and time efficiencies from avoiding a jury trial carry limited weight. The Supreme Court treated those savings as marginal and insufficient, standing alone, to justify the order.
  • No presumption operates for or against either mode of trial. The approach to such applications should not be adversarial, but the applicant bears an evidentiary onus to identify proper grounds for departing from trial by jury.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone orders)
- Crimes Act 1900 (NSW), Division 3 of Part 7 (jury-related offences, referenced in s 132(7))

Cases: No cases were cited in the provided text of the judgment.