Citation: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
Court: Court of Criminal Appeal
Date: 21 August 2017
Judge(s): Basten JA; Button J; Hamill J
Background
The accused stood trial in the District Court at Griffith on two counts: aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW) and assault occasioning actual bodily harm under s 59(1), arising from an alleged incident at the home of his former partner on 8 May 2016. On the morning of the trial, defence counsel foreshadowed an application for a judge alone trial under s 132 of the Criminal Procedure Act 1986 (NSW).
The basis of the application was that cross-examining the complainant about a conversation she had with the accused after his arrest, during which he was held at Junee Correctional Centre on refused bail, would inevitably reveal to the jury that he had been denied bail. Counsel argued this would cause irreparable prejudice that could not be cured by a jury direction. The trial judge granted the application.
The Director of Public Prosecutions appealed the order under s 5F(2) of the Criminal Appeal Act 1912 (NSW), which requires no leave. The Court of Criminal Appeal heard the appeal and, at the conclusion of the hearing, allowed it before delivering full written reasons.
Legal Issues
- Whether the trial judge correctly exercised the discretion under s 132(4) of the Criminal Procedure Act to order a trial by judge alone, on the basis that it was in the interests of justice to do so
- Whether the anticipated disclosure that the accused had been refused bail constituted sufficient prejudice to justify a judge alone order
- Whether the trial judge adequately considered the possibility that jury directions could ameliorate any such prejudice
- What standard of appellate intervention applies to orders made under s 132
Decision
The Court of Criminal Appeal allowed the appeal and set aside the judge alone order. Basten JA, writing the principal judgment, held that the discretion under s 132(4) is a binary choice requiring an evaluative judgment, not a discretion of the kind exercised in House v The King (where a sentencer selects a point within a range). The public interest in the form of a criminal trial is substantial, and an appellate court is not required to adopt a restrained approach simply because the order might be characterised as procedural.
The court reaffirmed that trial by jury remains the conventional and mandated form under s 131. A judge alone trial is appropriate in circumstances such as lengthy, complex expert-heavy matters or cases where fair jury trial cannot be achieved, for example where a particularly serious crime has inflamed public sentiment in a small community. An order is not available merely because the judge prefers judge alone trials for reasons such as transparency of reasoning, efficiency, or a perceived higher likelihood of a "correct" result.
The court found that the evidence placed before the trial judge was inadequate in both substance and form. The claimed prejudice was speculative: there was no proper evidence establishing that a local jury would be likely to draw damaging inferences from learning the accused had not been admitted to bail on the instant charges. Disclosure that an accused is in custody on the charges actually before the court is generally less prejudicial than disclosure of unrelated custody, and the trial judge gave no consideration to whether a jury direction could have addressed the risk.
The concession extracted from the prosecutor at the hearing about local jury knowledge was elicited in a manner that gave it little weight. The Court noted that its orders did not preclude a further, properly supported application being made if the circumstances warranted it.
Orders Made
- Appeal allowed
- Order for trial by judge alone set aside
- Application for judge alone trial dismissed
- Court noted these orders did not preclude a further application if thought appropriate
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act, a court may order a judge alone trial only where it is satisfied that doing so is in the interests of justice; the provision involves an evaluative binary choice rather than the selection of a point within a sentencing range, so appellate intervention is not confined to the House v The King standard.
- Trial by jury is the conventional and legislatively mandated form of criminal trial under s 131; a judge alone order requires affirmative justification grounded in the particular circumstances of the case, not a generic preference for judge alone proceedings.
- Speculative assertions of prejudice, without sufficient evidentiary foundation, will not satisfy the interests of justice threshold under s 132(4).
- A trial judge considering a prejudice-based application must address whether any identified risk can be ameliorated by jury directions before resorting to a judge alone order; failure to do so is an error in the exercise of the discretion.
- Disclosure to a jury that an accused has been refused bail on the very charges before the court is, as a general matter, less prejudicial than disclosure of unrelated custody, and may be capable of being addressed by a simple direction.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 112
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 32, 131, 132, 132A
- Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1(2)
Cases
- Fittock v The Queen (2003) 217 CLR 508; [2003] HCA 19
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Perry (1993) 29 NSWLR 589
- R v Coles (1993) 31 NSWLR 550
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Stanley [2013] NSWCCA 124
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; 249 A Crim R 120
- Redman v R [2015] NSWCCA 110
- RKF v R [2016] NSWCCA 116
- R v Qaumi & Ors (No 14) [2016] NSWSC 274
- R v Qaumi & Qaumi [2016] NSWSC 1473
- Arthurs v Western Australia [2007] WASC 182
- Coates v Western Australia [2009] WASCA 142
- R v Fardon [2010] QCA 317