Citation: R v Adams (No 2) [2016] NSWSC 1359
Court: Supreme Court of NSW
Date: 26 September 2016
Judge: Button J
Background
The accused faced trial for the murder of a young woman allegedly committed in September 1983 on the Lower North Shore of Sydney. The Crown case rested on two principal planks: mitochondrial DNA evidence from hairs found in the boot of the accused's car, and tendency evidence comprising allegations that the accused had sexually and physically assaulted several young women in similar circumstances in the late 1970s and early 1980s.
The tendency evidence was significant and contested. The Crown sought to use it to invite the tribunal of fact to infer that the accused had, consistent with an alleged pattern of strangling young women he met in bars to force sexual intercourse, killed the deceased in the same way. Button J had already ruled on admissibility questions in a related judgment delivered in December 2015.
Shortly before the scheduled trial date, the accused applied under s 132 of the Criminal Procedure Act 1986 (NSW) for the trial to proceed before a judge alone. The Crown opposed the application. Button J granted the order on 23 September 2016 and delivered reasons on 26 September 2016.
Legal Issues
- Whether it was "in the interests of justice" under s 132(4) of the Criminal Procedure Act 1986 (NSW) for the trial to proceed by judge alone, given the Crown's opposition
- Whether the complexity of the mitochondrial DNA evidence weighed in favour of a judge-alone trial
- Whether the number and complexity of jury directions required in this case would impair jury comprehension
- Whether the nature and volume of tendency evidence created a real risk of prejudicial jury reasoning that could not be adequately addressed by direction
Decision
Button J identified four cumulative grounds advanced by the accused and assessed them together. The first ground, concerning cost and speed, was acknowledged as having some weight. The accused's solicitor deposed that the accused faced funding difficulties if the trial were extended or required recommencement, though Button J accepted this was not comparable to the exceptional financial circumstances in R v Gittany.
On expert evidence complexity, Button J accepted that disputed mitochondrial DNA evidence, combined with potential scientific debate about sample degradation over a lengthy break in the chain of custody, presented genuine comprehension challenges for a lay jury.
The directions burden was also significant. Because each tendency allegation had to be proved beyond reasonable doubt before a jury could use it in support of a guilty verdict on the murder charge, the jury would effectively need to determine four separate fact-finding exercises. Combined with the historical age of the allegations, directions under s 165B of the Evidence Act 1995 (NSW), and the standard directions on the murder charge itself, the total volume of jury directions was unusually large.
The decisive factor, however, was the risk of jury prejudice. Button J concluded that the cumulative nature of the Crown case, including detailed evidence of multiple alleged violent sexual assaults committed against several women, would make it extremely difficult for lay jurors to assess the evidence dispassionately. Citing Gilbert v The Queen, his Honour observed that the assumption that juries follow directions does not mean their reasoning is unaffected by prejudice. Drawing also on the common law discretion recognised in R v Christie and the analogous statutory test in s 137 of the Evidence Act, Button J was satisfied that the interests of justice required a judge-alone trial.
Orders Made
- Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the accused be tried by judge alone.
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act 1986 (NSW), where the prosecution opposes a judge-alone application, the court must be satisfied that a judge-alone trial is "in the interests of justice"; the test is not met by any single factor alone but by an evaluative assessment of all relevant circumstances.
- The Supreme Court treated the potential for jury prejudice arising from deeply disturbing tendency evidence as capable of being a decisive consideration, particularly where multiple allegations of sexual and physical violence would be heard alongside a murder charge.
- A long break in the chain of custody for forensic evidence, and the prospect of contested expert scientific opinion about sample integrity, can count in favour of a judge-alone order as factors bearing on jury comprehension.
- Where tendency allegations must each be proven beyond reasonable doubt before being used to support a verdict, the resulting accumulation of jury directions across several "mini-trials" may compound comprehension risks in a sufficiently complex case.
- The principle that juries are presumed to follow directions, as recognised in Gilbert v The Queen, has limits: the criminal justice system has long accepted, through both the common law and statute, that juries may not always reason dispassionately in the face of strongly prejudicial material.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132(4), 132(5), 132A(1)
- Evidence Act 1995 (NSW), ss 137, 165B
Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16
- Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72
- R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729
- R v Adams [2015] NSWSC 1960
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Christie [1914] AC 545; (1914) 10 Cr App R 141
- R v Dean [2013] NSWSC 661
- R v Gittany [2013] NSWSC 1503
- R v Matonwal & Amood [2016] NSWCCA 165
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- Redman v R [2015] NSWCCA 110
- RKF v The Queen [2016] NSWCCA 116