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Supreme Court 12 July 2017

R v BT

[2017] NSWSC 1095

Homicide
CRIMINAL LAW APPLICATION FOR TRIAL BY JUDGE ALONE MURDER KILLING OF BABY GIRL BY HER FATHER

Citation: R v BT [2017] NSWSC 1095
Court: Supreme Court of New South Wales
Date: 12 July 2017
Judge(s): Hidden AJ

Background

The accused, BT, faced trial for the murder of his infant daughter, HT, who was eight weeks old at the time of her death. The Crown's case was entirely circumstantial. It relied on expert evidence that the injuries causing the baby's death were consistent with violence allegedly inflicted by the accused on earlier occasions, supported by tendency evidence that Hidden AJ had already ruled admissible.

The accused gave police an account of the incident that was exculpatory, but the Crown contended that account was false. The trial commenced on 10 July 2017, with jury empanelment deferred pending argument on the tendency evidence.

On 11 July 2017, defence counsel applied under s 132 of the Criminal Procedure Act 1986 for the trial to proceed before a judge alone, without a jury. The Crown opposed the application. Hidden AJ declined to make the order the following day and subsequently published expanded reasons.

  • Whether the application for trial by judge alone, made well outside the 28-day timeframe in s 132A(1) of the Criminal Procedure Act 1986, should be granted leave to proceed out of time
  • Whether the distressing and circumstantial nature of the case, combined with the admitted tendency evidence, created sufficient prejudice to warrant dispensing with a jury in the interests of justice

Decision

Hidden AJ first addressed the lateness of the application. Section 132A(1) requires that such an application be made no less than 28 days before the trial date. The accused's solicitor provided an affidavit explaining the delay, the Crown did not oppose leave, and the judge considered the application raised a genuine issue. Leave was granted.

On the substantive question, the defence argued that the killing of an infant was inherently likely to generate outrage among jurors, making dispassionate deliberation difficult. Counsel pointed to the circumstantial nature of the case and the admitted tendency evidence as compounding factors, relying heavily on Button J's decision in R v Adams (No 2) [2016] NSWSC 1359, where trial by judge alone was ordered in a murder case involving highly disturbing tendency evidence of sexual violence against multiple women.

Hidden AJ distinguished Adams (No 2) on its facts. That case involved tendency evidence of three separate unrelated serious offences of a similar kind. In the present case, the tendency evidence concerned a pattern of conduct by the accused against the same victim over approximately six weeks, culminating in her death. The judge accepted the Crown's submission that, serious as the alleged conduct was, a properly directed jury could be expected to approach the task impartially.

Hidden AJ also noted that juries routinely handle both circumstantial cases and cases involving tendency evidence, sometimes together. Standard judicial directions on prejudice, sympathy, and the proper use of tendency evidence provide adequate safeguards. The panel process under s 38(7) of the Jury Act 1977 further allows prospective jurors to assess whether the nature of the case would prevent them from deliberating impartially. On all the circumstances, the interests of justice did not call for a trial by judge alone.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Supreme Court confirmed that a late application for trial by judge alone under s 132 of the Criminal Procedure Act 1986 may be granted leave to proceed out of time where the explanation is adequate and the application raises a genuine issue.
  • An accused bears an evidentiary burden to raise the issue of trial by judge alone, but does not bear a persuasive burden to establish that the order should be made; the court retains a discretion based on the interests of justice.
  • Distinguishing R v Adams (No 2), the court held that tendency evidence of repeated violence against a single victim is materially different, in terms of prejudicial impact, from tendency evidence of multiple unrelated serious offences against separate victims.
  • A distressing or emotionally charged case does not, without more, satisfy the threshold for displacing jury trial; the existence of standard directions on sympathy, prejudice, and tendency evidence weighs against such an order.
  • Under s 38(7) of the Jury Act 1977, the Crown's address to the jury panel at the outset of trial provides an additional mechanism for filtering jurors unable to approach a difficult case impartially.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A(1), 132(5)
- Jury Act 1977 (NSW), s 38(7)

Cases
- R v Adams (No 2) [2016] NSWSC 1359
- R v Belghar [2012] NSWCCA 86, 217 A Crim R 1
- R v Simmons & Moore (No 4) 249 A Crim R 120