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Supreme Court 29 July 2020

R v Jaghbir (No 2)

[2020] NSWSC 955

Homicide
CRIMINAL PROCEDURE TRIAL 19 PANDEMIC ORDER MADE FOR JUDGE ALONE TRIAL

Citation: R v Jaghbir (No 2) [2020] NSWSC 955
Court: Supreme Court of New South Wales
Date: 29 July 2020
Judge: Davies J

Background

The accused was charged with procuring and counselling unknown persons to commit the murder of a man on 10 March 2017. The trial had originally been fixed to commence on 16 March 2020 but was vacated for several reasons, including a prejudicial newspaper article about a prospective witness, a late Crown application under the Crime Commission Act, required pre-trial witness enquiries (known as Basha enquiries), and the health concerns of senior counsel in the context of the emerging COVID-19 pandemic. The trial was then rescheduled to commence on 7 September 2020.

The accused applied for the trial to proceed before a judge alone, pursuant to section 132 of the Criminal Procedure Act 1986 (NSW). The application was supported by two affidavits from the accused's instructing solicitor, which annexed a series of newspaper articles published between 2016 and 2020. Those articles concerned the killing of the deceased, related underworld figures, and the convictions of persons who might give evidence or be mentioned at trial.

The Crown opposed the application. The parties' competing arguments focused on whether pre-trial publicity was sufficiently prejudicial to warrant a judge-alone trial and, separately, whether the COVID-19 pandemic provided an independent basis for the order.

  • Whether pre-trial publicity, including newspaper coverage of underworld figures connected to the trial, was sufficiently prejudicial to justify a judge-alone trial under section 132 of the Criminal Procedure Act 1986 (NSW).
  • Whether a wholly circumstantial Crown case involved "objective community standards" such that it was more appropriately determined by a jury under section 132(5).
  • Whether the risks posed by the COVID-19 pandemic, including the risk of trial interruption and further significant delay, independently justified ordering a judge-alone trial in the interests of justice.

Decision

Davies J rejected the publicity-based grounds for the application. The newspaper articles annexed to the affidavits did not refer to the accused, made only one reference to the deceased, and generally concerned persons only peripherally connected to the trial. His Honour concluded that none of that material was likely to prejudice a fair jury trial, and that appropriate directions to a jury would have been sufficient to address any residual risk of prejudice arising from the coverage.

His Honour also rejected the argument that the circumstantial nature of the Crown case favoured a jury. The Crown's position was that drawing inferences in a wholly circumstantial case engages objective community standards and is ordinarily the province of a jury, a view reflected in the Director of Public Prosecutions Guideline 24. Davies J acknowledged that perspective but did not find it determinative in the circumstances.

The determinative factor was the COVID-19 pandemic. Davies J held that the significant risk of a jury trial being aborted, and the consequent prospect of further substantial delay in a matter already seriously delayed, meant that the interests of justice required a judge-alone trial. His Honour noted that practical arrangements for jury trials in the Supreme Court, including the use of adjoining courtrooms and coordinated empanelment procedures at the District Court complex, meant it was not feasible to defer the decision until closer to the trial date.

Davies J also observed, drawing on the reasoning of Elkaim J in the ACT Supreme Court decisions, and consistent with comments in the relevant emergency legislation's second reading speech, that the public interest in the due administration of justice supported criminal trials proceeding with the least chance of interruption during the pandemic. This consideration applied even in cases that would not otherwise have warranted a judge-alone order.

Orders Made

  • The trial of the accused is to proceed as a judge-alone trial.

Key Takeaways

  • The Supreme Court found that pre-trial media publicity about underworld figures connected to a murder trial did not, of itself, justify a judge-alone trial where jury directions would have adequately addressed any resulting prejudice.
  • A wholly circumstantial Crown case does not automatically favour a judge-alone trial; the Crown's submission that inferential reasoning engages objective community standards was acknowledged as a legitimate consideration, consistent with DPP Guideline 24, though it was not ultimately decisive.
  • Under section 132 of the Criminal Procedure Act 1986 (NSW), the interests of justice include the public interest in the due administration of justice, which encompasses avoiding unacceptable trial interruption and delay during the COVID-19 pandemic.
  • Davies J expressly stated that, absent the pandemic, the judge-alone application would have been refused. The COVID-19 risk of trial abortion was the sole basis for the order.
  • Practical logistical arrangements for jury trials in the Supreme Court, including coordinated empanelment procedures, meant that a decision on trial mode could not feasibly be deferred to a date closer to the trial's commencement.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132(5), 365
- Crime Commission Act 2012 (NSW), s 45
- COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW)
- Supreme Court Act 1933 (ACT), s 68BA

Cases
- Allen v R [2020] NSWCCA 173
- Mickelberg v R (No 3) (1992) 8 WAR 236
- R v Coleman [2020] ACTSC 97
- R v UD (No 2) [2020] ACTSC 90
- Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150