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Supreme Court 6 March 2025

R v Saliba (No 2) (Judge alone application)

[2025] NSWSC 155

Homicide
CRIMINAL LAW APPLICATION FOR TRIAL BY JUDGE ALONE RELEVANT CONSIDERATIONS WHERE SELF DEFENCE LIKELY TO BE RAISED FACIAL TATTOOS

Citation: R v Saliba (No 2) (Judge alone application) [2025] NSWSC 155
Court: Supreme Court of New South Wales
Date: 6 March 2025
Judge: Hamill J

Background

An accused charged with the murder of his cousin at Bomaderry on 9 December 2022 applied under s 132 of the Criminal Procedure Act 1986 (NSW) to be tried by a judge sitting alone, without a jury. The trial was listed to commence at Nowra the following week, making the application urgent. The prosecution opposed the application.

Two broad categories of potential prejudice were raised in support of the application. First, extensive social media posts about the killing, the deceased's family's grief, and condemnation of the accused had circulated widely. Second, the accused bore prominent facial and neck tattoos, some depicting knives or scythes, raising concern that a jury might associate those images with a propensity for violence, particularly given that the death was caused by stabbing.

The prosecution argued that judicial directions could adequately address any prejudice, that wearing makeup or a high collar could mitigate the tattoo issue, and that the self-defence question likely to arise at trial would require the application of objective community standards, a factor pointing toward jury trial under s 132(5).

  • Whether it is in the "interests of justice" under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order trial by judge alone, where the prosecution opposes the application
  • Whether social media and mainstream media coverage of the case gave rise to a level of prejudice that jury directions could not adequately cure
  • Whether the accused's prominent facial and neck tattoos, depicting weapons, created a risk of jury prejudice incapable of being remedied by directions or practical measures
  • Whether the anticipated self-defence issue, requiring assessment of "reasonableness" against community standards, weighed against a judge alone order under s 132(5)
  • What weight to give academic research on the effect of tattoos on mock juror perceptions

Decision

Hamill J granted the application and ordered a trial by judge alone. His Honour applied the well-established principle that the "interests of justice" test is broad and encompasses more than the accused's personal interests, but confirmed that an accused is not automatically entitled to a judge alone trial simply by requesting one. The voluntary abandonment of the right to a jury trial remains a significant consideration, as does a subjectively held apprehension of prejudice, provided that apprehension is more than a bare assertion and is supported by evidence.

On the social media issue, Hamill J found that the volume and character of posts about the case, including expressions of grief and condemnation from the deceased's family, raised a real risk of prejudice. While media outlets cooperated by temporarily removing items from their websites and social media pages, some material remained potentially accessible, and the court was not satisfied that directions to the jury would fully neutralise the risk.

The tattoo issue was treated as particularly significant. The accused had visible facial tattoos depicting knives or scythes, and the death was caused by stabbing. Hamill J acknowledged academic research suggesting that facial tattoos can negatively influence mock jurors' assessments of guilt and punishment. While those studies were approaching ten years old and drew from mock jury rather than real jury settings, they provided a rational, evidence-based foundation for the accused's concern. His Honour was not persuaded that makeup, a high collar, or directions would reliably cure the prejudice in this case.

On the prosecution's s 132(5) argument, Hamill J confirmed that the presence of a community standards question (here, the reasonableness component of self-defence under s 421 of the Crimes Act 1900) is a factor that militates in favour of jury trial, but is not determinative. Other considerations can outweigh it. In this case, the combination of the media coverage, the tattoo prejudice concern, and the accused's informed decision to waive a jury trial collectively pointed toward a judge alone trial being in the interests of justice.

Orders Made

  • A trial by judge order was made pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) in the murder trial of the accused.
  • The trial was confirmed as listed before Yehia J in Nowra commencing Monday 10 March 2025.
  • The Registrar and/or Supreme Court Media Liaison Officer was directed to contact Channel 7 and the Daily Telegraph to advise that the items voluntarily removed from their websites and social media platforms may be re-published once the trial commences.

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986 (NSW), a judge alone order is not available on demand; the court must be satisfied it is in the "interests of justice," a test of wide import that extends beyond the accused's own interests.
  • The presence of a community standards question, such as the reasonableness component of a self-defence issue, is a relevant factor under s 132(5) that weighs against a judge alone order, but it is not conclusive and can be outweighed by other considerations.
  • Prominent facial tattoos depicting weapons, combined with the manner of the alleged offending, were found capable of grounding a rational, evidence-based apprehension of jury prejudice, notwithstanding the availability of practical remedies such as makeup or clothing and the possibility of judicial direction.
  • The Supreme Court treated academic studies on tattoo-related juror bias as relevant evidence capable of supporting an accused's apprehension of prejudice, while noting limitations in those studies including their age and mock-jury methodology.
  • Extensive social media commentary condemning an accused before trial can contribute to a finding that jury prejudice is not adequately curable by direction, even where some online material has been temporarily removed at the court's request.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132(4), 132(5), 132(6), 132A
- Crimes Act 1900 (NSW), s 421 (self-defence)

Cases:
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Stanley [2013] NSWCCA 124
- Redman v R [2015] NSWCCA 110
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120
- R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274; (2016) 265 A Crim R 575
- R v Qaumi & Qaumi [2016] NSWSC 1473
- R v White [2024] NSWSC 1369
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72
- Arthurs v Western Australia [2007] WASC 182
- R v GSR (No 3) [2011] NSWDC 17

Academic Sources Referenced:
- K Brown, B McKimmie and T Zarkadi, "The Defendant with the Prison Tattoo: The Effect of Tattoos on Mock Jurors' Perceptions" (2018) 25(3) Psychiatry, Psychology and Law 386
- F Funk and A Todorov, "Criminal Stereotypes in the Courtroom: Facial Tattoos Affect Guilt and Punishment Differently" (2013) 19(4) Psychology, Public Policy, and Law 466