Citation: R v Chambour; R v Khallouf (No 2) [2016] NSWDC 245
Court: District Court of New South Wales
Date: 27 September 2016
Judge: Neilson DCJ
Background
Two accused, George Chambour and Youssef Khallouf, faced trial on six counts arising from an alleged violent incident in Sydney on 8 January 2013. The charges included wounding while in company and recklessly causing actual bodily harm, with alternative counts alleging participation in an extended joint criminal enterprise. A third co-accused had separately reached an accommodation with the Crown before the hearing of this application.
The trial had been set down to commence on 19 September 2016. In the days leading up to that date, matters evolved significantly: the Crown served an amended case summary, a tendency notice was issued and later rejected by the court, and the accused agreed among themselves to seek a judge-alone trial. The Crown withheld consent to the application. Because the applications were made after the statutory deadline, the accused also required leave to apply out of time under s 132A of the Criminal Procedure Act 1986.
His Honour dealt with both the leave application and the substantive application together. On the morning of the hearing, the Crown also filed a fresh indictment removing an affray count to which Chambour had pleaded guilty, and confirmed it would not rely on the extended definition of recklessness under s 4A of the Crimes Act 1900.
Legal Issues
- Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 to make an out-of-time application for trial by judge alone
- Whether, on the substantive application under s 132, trial by judge alone was appropriate in circumstances where the key factual disputes involved CCTV footage, conflicting civilian witness descriptions, and circumstantial reasoning
- Whether the desirability of receiving reasons for a verdict, and the efficiency of judge-alone proceedings, are legitimate bases for granting a judge-alone application
Decision
His Honour granted leave to each accused to make the out-of-time application under s 132A, but then dismissed both substantive applications under s 132.
The central submission advanced by the accused was that the factual issues were complex, involving the interpretation of CCTV footage from the Opera Bar and a car park, inconsistent civilian witness descriptions of clothing worn during the melee, and circumstantial identification reasoning. His Honour acknowledged that these were genuinely intricate factual questions, but concluded they were precisely the kind of questions juries routinely and competently resolve. He noted that a jury of twelve can bring collective life experience to the task of drawing inferences from film footage, and that judges are no less susceptible to factual error in such matters.
His Honour also rejected the argument that the desirability of receiving reasoned findings, including for potential appellate purposes, was sufficient in itself to warrant a judge-alone trial. Relying on the Court of Criminal Appeal's decision in R v Belghar, his Honour held that the mere fact a judge provides reasons cannot be a meaningful factor in choosing the mode of trial. The policy question of whether written reasons are generally desirable is one for the legislature, not a basis for displacing jury trial in any individual case.
His Honour placed particular weight on the public interest in having matters involving public violence tried by a jury, reflecting the broader principle that jurors as community representatives play an important democratic role in the administration of justice. With the tendency evidence having already been ruled inadmissible, one source of potential complexity had been removed. In his Honour's assessment, the remaining arguments reduced to the proposition that complex facts call for reasons, which the authorities confirm is an insufficient basis.
Orders Made
- Leave granted to each accused under s 132A to make an out-of-time application for trial by judge alone
- Both applications for trial by judge alone under s 132 dismissed
Key Takeaways
- The District Court confirmed that complexity of factual issues does not, of itself, justify a judge-alone trial where those issues are of a kind ordinarily and competently resolved by juries.
- A desire for reasoned findings, including to facilitate appellate review, is an insufficient basis on which to grant a judge-alone application under s 132 of the Criminal Procedure Act 1986.
- Where a case turns on the interpretation of CCTV footage and conflicting eyewitness descriptions, a jury of twelve is regarded as at least as well-placed as a judge to draw appropriate inferences, given the collective life experience jurors bring to such assessments.
- Cases involving public violence engage a distinct public interest in jury trial, reflecting the democratic function of jurors as representatives of the community in the administration of justice.
- Relying on R v Belghar, the court reaffirmed that policy considerations about the general desirability of written reasons are matters for the legislature and carry little or no weight in determining the appropriate mode of trial under existing law.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Crimes Act 1900 (NSW), ss 35(3), 4A
Cases:
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- TVM v Western Australia (2007) 180 A Crim R 183