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9
Supreme Court 9 May 2022

R v Dawson

[2022] NSWSC 552

Homicide
CRIMINAL LAW APPLICATION FOR A JUDGE ALONE TRIAL ACCUSED CHARGED WITH MURDER “EGREGIOUS” PRE ‑ TRIAL PUBLICITY “TEACHER’S PET” PODCAST PODCAST WIDELY DISTRIBUTED

Citation: R v Dawson [2022] NSWSC 552
Court: Supreme Court of New South Wales
Date: 9 May 2022
Judge: Beech-Jones CJ at CL

Background

The accused was charged with the murder of his wife, alleged to have occurred on or about 8 January 1982. He was arraigned in the Supreme Court on 3 April 2020 and pleaded not guilty. The trial was listed to commence on 9 May 2022, some 40 years after the alleged offence.

A central feature of the case was the "Teacher's Pet" podcast, a widely distributed production directed at persuading listeners of the accused's guilt. The podcast involved the participation of public officials and generated what the Court characterised as "egregious" pre-trial publicity. The accused had previously sought a permanent stay of proceedings on the basis of that publicity; that application was dismissed, as was a subsequent appeal and a further application for special leave to appeal to the High Court.

On 14 April 2022, the accused signed an election for trial by judge alone under s 132(1) of the Criminal Procedure Act 1986 and filed a notice of motion seeking that order. Because the application was made less than 28 days before the listed trial date, leave was also required under s 132A.

  • Whether leave should be granted under s 132A(1) for the late application for a judge alone trial
  • Whether the prosecutor's disagreement with the application required the Court to assess whether an order was in "the interests of justice" under s 132(4)
  • Whether the pre-trial publicity created by the "Teacher's Pet" podcast, and the broader circumstances of the case, warranted a judge alone trial in the interests of justice
  • Whether the trial involved factual issues requiring the application of objective community standards, which may warrant refusal under s 132(5)
  • How the test for a judge alone trial differs from the test for a permanent stay of proceedings

Decision

The Crown did not oppose the grant of leave under s 132A, and the Court granted it. The Court accepted that the accused's application was made promptly after the refusal of special leave to appeal, that the stay application had been pursued on reasonable grounds, and that earlier courts had treated the possibility of a judge alone trial as irrelevant to the stay question. There was no basis to characterise the application as "judge shopping."

Because the Crown did not consent to the order, the Court was required to assess whether a judge alone trial was in the "interests of justice" under s 132(4). Drawing on R v Belghar [2012] NSWCCA 86, the Court confirmed there is no presumption in favour of jury trial that an accused must displace. The court may conclude, depending on the particular case, that the interests of justice are better served by trial before a judge alone. The accused's subjective belief that a jury trial may not be fair is relevant but not determinative; the reasons for that preference, whether rationally justified, and whether they bear on the fairness of the trial are the more significant considerations.

The Court found the pre-trial publicity in this case to be of an exceptional character. The "Teacher's Pet" podcast was not merely sensational reporting but was deliberately constructed to persuade listeners of the accused's guilt, had achieved massive distribution, and involved the participation of public officials. The Court distinguished this from the ordinary position that directions to a jury, deferral of trial, and steps at empanelment are ordinarily sufficient to address prejudice from publicity. It concluded that the nature, volume and persuasive intent of the publicity created a real and rational basis for concern about jury prejudice that those ordinary measures could not adequately address.

The Court emphasised that the object was not necessarily to produce an acquittal but to ensure that the prosecution and defence cases were put fairly and the right result reached impartially according to law. The combination of fairness to the accused and the need to maintain community confidence in the criminal justice process compelled the conclusion that the interests of justice required trial before a judge sitting alone, who would produce considered reasons for whatever verdict followed.

Orders Made

• The accused's trial shall be conducted before a Judge sitting alone rather than before a jury

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986, where the prosecutor does not consent, the court must assess whether a judge alone trial is in the "interests of justice"; there is no presumption in favour of jury trial that an accused must displace.
  • Pre-trial publicity may justify a judge alone trial where it is of such exceptional character, volume, and persuasive intent that the standard remedies available at empanelment (such as directions, challenges, and deferral) are insufficient to address the real risk of jury prejudice.
  • The test for a judge alone trial order under s 132 is distinct from the test for a permanent stay of proceedings; the availability of a judge alone trial is a factor that may distinguish the two remedies, but earlier courts had treated it as irrelevant to the stay question in this case.
  • An accused's subjective belief that a jury trial may be unfair is a relevant but far from determinative consideration; what matters more is whether that belief is rationally grounded and whether the underlying reasons bear on the fairness of the trial.
  • Late applications for judge alone trials under s 132A(1) may be granted leave where the delay is explained by the reasonable pursuit of other proceedings (such as a stay application), and where there is no basis to infer "judge shopping."

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 130, 132, 132A, 365
- Jury Act 1977 (NSW)
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)

Cases:
- Arthurs v State of Western Australia [2007] WASC 182
- BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61
- Dawson v R [2021] NSWCCA 117
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Dawson [2020] NSWSC 1221
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- R v Villalon [2013] NSWSC 1516
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- TVM v State of Western Australia [2007] WASC 299