Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Belghar [2012] NSWCCA 86
• Hearing dates: 11 April 2012
• Decision date: 04 May 2012
• Before: McClellan CJ at CL at [1]; Hidden J at [116]; Hislop J at [121]

Decision

1. Appeal upheld.

2. Decision of primary judge quashed.

• Catchwords: CRIMINAL LAW - 5F application - jury trial - trial by judge alone - application of s 132 of the Criminal Procedure Act 1986 - whether there is a presumption in favour of a jury trial - what factors are relevant to a determining the interests of justice - whether the subjective views of the accused are relevant to the interests of justice - whether there is evidence to support the subjective views of the accused - whether trial efficiency and reasons are relevant to the interests of justice
• Legislation Cited: Courts and Crimes Legislation Further Amendment Act 2010; Criminal Appeal Act 1912; Criminal Code (NT); Criminal Code (Qld); Criminal Code Act 1899 (Qld); Criminal Procedure Act 1986; Criminal Procedure Act 2004 (WA); Evidence Act 1995; Juries Act 1927 (SA); Juries Act 2000 (Vic); Juries Act 2003 (Tas); Jury Act 1977 (NSW); Supreme Court Act; Supreme Court Act 1933 (ACT)
• Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438; Arthurs v The State of Western Australia [2007] WASC 182; Brown v The Queen [1986] HCA11; (1986) 160 CLR 171; Bushell's Case (1670) 124 ER 1006; Chandler v DPP [1964] AC 763; DAO v R [2011] NSWCCA 63; Dupas v The Queen [2010] HCA 20; 241 CLR 237; Ford v Blurton (1922) 38 TLR 801; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414; House v The King [1936] HCA 40; (1936) 55 CLR 499; J, S, M v R [2010] EWCA Crim 1755; Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264; Kissier v The Queen [2012] HCATrans 28; Pambula District Hospital v Herriman (1988) 14 NSWLR 387; R v Cox [1960] VR 665; R v Fardon [2010] QCA 317; R v GSR (3) [2011] NSWDC 17; R v Kissier [2011] QCA 223; R v Markou [2011] NSWDC 25; R v Shipley (1784) 4 Doug 73, 170; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201; State of Western Australia v Iley [2006] WASC 107; State of Western Australia v Rayney [2011] WASC 326; State of Western Australia v Tarau [2005] WASC 290; Swain v Waverley Municipal Council [2005] HCA 4, 220 CLR 517; TVM v State of Western Australia [2007] WASC 299; Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
• Texts Cited: Lord Devlin, Trial by Jury (rev ed, 1966); Statement by Bar Council of NSW: Your Right to a Jury Trial (1965); Ian Baker QC, Sorely Tried: Democracy and Trial by Jury in NSW, Francis Forbes Lecture Series (2002); Report of the Trial Efficiency Working Group (2009); McClellan CJ at CL, "The future role of the judge - umpire, manager, mediator or service provider" p 2, 1 December 2011
• Category: Interlocutory applications
• Parties: Crown (Applicant); Ismail Belghar (Respondent)
• Representation: Counsel: N Noman/N J Gouda (Crown/applicant); G A Newton (Respondent); Solicitors: Solicitor for Public Prosecutions (Applicant); Legal Aid Commission of NSW (Respondent)
• File Number(s): 2009/326053

Decision under appeal

• Date of Decision: 2012-03-08 00:00:00
• Before: Solomon DCJ
• File Number(s): 2009/326053

Judgment

1 The respondent, Ismail Belghar, was arraigned in the District Court on an indictment which was filed on 11 February 2011. The Crown subsequently sought to amend the indictment and with the consent of the respondent leave was granted for this to occur. However, the respondent was not arraigned on the amended indictment. On 20 September 2011 he made an application to be tried by a judge without a jury pursuant to s 132 of the Criminal Procedure Act 1986 ("the Act"). The application was heard and refused. The respondent appealed that decision to this Court pursuant to s 5F of the Criminal Appeal Act 1912. This Court dismissed the appeal, determining that the District Court lacked jurisdiction to entertain the application as the respondent had not been arraigned.

2 The matter was returned to the District Court where, on 8 March 2012, a further application for a judge-alone trial was listed. On that occasion the respondent was arraigned on an indictment containing the following counts:

"Count 1: attempted murder - s 30, Crimes Act 1900

Count 2: attempt to inflict grievous bodily harm with intent to do grievous bodily harm (alternative to count 1) - ss 33(l)(a) and 344A, Crimes Act 1900

Count 3: intimidation (alternative to counts 1 and 2) (s 13, Crimes (Domestic and Personal Violence) Act 2007)

Count 4: assault occasioning actual bodily harm - s 59, Crimes Act 1900."

3 The District Court judge granted the application and ordered that the respondent be tried by judge alone. The Crown appeals that order to this Court pursuant to s 5F(2) of the Criminal Appeal Act.

4 The facts which it is anticipated the Crown will seek to prove at the trial have been summarised in the Crown submissions.

5 The respondent is the brother-in-law of the complainant, Canan Kokden. As at the time of the alleged offences, he had been married to her older sister, Hanife Kokden, for 11 years.

6 On a day in October 2009, the complainant, her sister Hanife and a female friend went to the beach without the respondent's knowledge. When Hanife returned home, the respondent demanded to know where she had been and whom she had been with. When she told him, the respondent telephoned the complainant and said, "You slut, I'm going to kill you. I'm going to fuck you up. I'm going to find you and kill you. You fucking slut, how dare you take my wife to the beach."

7 At about 8.45 pm on 22 December 2009, the complainant went with her brother, Oktay Kokden, and his two daughters to Broadway Shopping Centre. By coincidence, the respondent and Hanife were also at Broadway Shopping Centre that night. Upon entering the shopping centre from the car park, the complainant saw the respondent and Hanife and turned back towards the car park in order to avoid the respondent, who she had not seen or spoken to since the telephone call. Oktay and his daughters entered the shopping centre and spoke with the respondent and Hanife.

8 The complainant walked into the car park and sat on an internal handrail of the walkway facing the entry to the shopping centre ("the internal railing"). The internal railing had a second rail below it and the complainant placed her feet on this bottom rail as she sat on the higher rail. She made a call on her mobile telephone to a friend.

9 The respondent walked out of the shopping centre and towards the complainant with a key in his right hand. He stood in front of her and put his face against hers and said, "I'm going to kill you. I'm going to fucking kill you." The respondent slapped the complainant once with an open right hand to the left side of her face. The respondent then bent down, put his arms around the complainant's legs and waist and picked her up from the railing. He carried her to the railing on the boundary of the car park ("the external railing") and held her over it to the extent that she could see the roadway below. The complainant was crying uncontrollably and believed she was going to die.

10 At that time, the complainant's brother Oktay tackled the respondent, freeing the complainant, who fell to the ground within the car park. She ran into the shopping centre in distress. The respondent walked away and drove off, leaving Hanife behind. Security officers attended to the complainant and contacted the police. The complainant's sunglasses were later found on the road below the car park where the incident occurred.

11 The respondent was arrested on 23 December 2009 and participated in an electronically recorded interview with police. He denied assaulting the complainant and stated that he only picked her up from her seated position on the internal railing because she started to lose her balance while swearing at him. He feared that she would fall and he did not want her to injure herself.

The legislation

12 Section 132 of the Criminal Procedure Act now provides:

"132 Orders for trial by Judge alone

(1)An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)the risk of those acts occurring may not reasonably be mitigated by other means."

13 The section was amended to take its present form by the Courts and Crimes Legislation Further Amendment Act 2010. The section previously provided that a judge could only order that a trial be by judge without a jury in circumstances where both the accused and the Crown agreed. When the amending legislation was introduced, the Attorney-General said in the Second Reading Speech that the amendment was instigated by a proposal from the Chief Judge of the District Court in late 2009 that the Director of Public Prosecutions' veto power be removed from section 132 by allowing a court to settle the dispute if the prosecution and defence cannot agree on the issue of trial by a judge alone.

14 The Attorney-General said that "judge-alone trials are appropriate in a limited number of circumstances." He identified circumstances where there may be concerns that pre-trial publicity cannot be satisfactorily overcome or where the evidence of the trial is likely to be highly technical as examples of when a judge alone trial may be appropriate.

The reasons of the trial judge

15 The trial judge had the benefit of comprehensive written submissions from the parties. His Honour's reasons were delivered in an informal manner and were shortly stated. His Honour said that he agreed with the Crown that an applicant bears the onus of proof. Relying upon the decision in Arthurs v The State of Western Australia [2007] WASC 182 at [79] his Honour accepted that it is relevant to the "interests of justice" that an accused person, because of their religious or cultural circumstances, is concerned that he or she may not get a fair trial by a jury. His Honour concluded that:

"the attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension."

16 His Honour then identified the fact that the Crown could not point to any prejudice that the Crown "or the community" faces in relation to the application. He invited the prosecutor to address him on that issue and in the course of an exchange with counsel said:

"The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant's wife to the beach where the applicant's wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife's family having some authority over her."

17 His Honour contrasted the position with a case which may have involved attitudes towards the Muslim faith in general, saying:

"In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre."

18 His Honour later said:

"In this particular case it really relates insofar as the Crown case is concerned as to his state of mind, and the rage created by his either faith (sic) or the culture that he had absolute control over the wife."

19 His Honour then said:

"I feel that the application should be granted"

20 He continued:

"and I do so on the basis that the Crown has not been able to demonstrate to me any prejudice that the Crown faces or any prejudice that the community faces in relation to the granting of the application."

21 The Crown Prosecutor expressly acknowledged that he did not require the trial judge to give further reasons.

22 Having regard to the way the matter proceeded, there is an ambiguity in his Honour's reasoning. However, a fair reading suggests that his Honour concluded that the respondent apprehended that he may not get a fair trial by a jury because of his religious or cultural circumstances and, for that reason, in the absence of any prejudice to the Crown or the community, determined that it was in the interests of justice to grant the application.

Trial by jury and trial by judge alone

23 Before turning to consider the issues raised in this appeal, it is instructive to reflect on the origin of trial by jury and the more recent intervention by legislatures to provide the alternative procedure of a trial by a judge alone. The trend in recent years has been toward the use of judge-alone trials - the trend being more pronounced in the resolution of civil disputes. As is apparent from the decisions of judges, both in England and Australia, any suggestion that trial by jury should be confined, either for the trial of civil disputes or crimes, can arouse a strong response from many lawyers: see, for instance, Ford v Blurton (1922) 38 TLR 801 at 805 (Atkin LJ); Brown v The Queen [1986] HCA11; (1986) 160 CLR 171 at 201-203 (Deane J), 216-217 (Dawson J); J, S, M v R [2010] EWCA Crim 1755 at 8 (Judge LCJ). However, notwithstanding its many supporters, the Parliaments of many of the States have legislated to increase the opportunity for judge-alone trials: see Supreme Court Act 1933 (ACT) s 68B; Criminal Code (Qld) s 615 and Criminal Code Act 1899 (Qld) Sch 1; Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 118.

24 In AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, an appeal concerned with defects in the reasons of a judge who tried an alleged offender without a jury, Heydon J discussed the nature and benefits of trial by jury and trial by judge alone. His Honour drew upon statements by Lord Devlin, a strong supporter of jury trials, describing them as the "lamp that shows that freedom lives" (Lord Devlin, Trial by Jury (rev ed, 1966 at 164). Heydon J discussed five advantages of trial by jury which had been identified by Lord Devlin. His Honour said:

"First, Lord Devlin thought juries were superior to judges in assessing defence points: "the hope of the defence very often lies in impalpabilities - the willingness to make allowances for muddle-headedness, illogicalities and unreasonableness - impalpabilities that are less appealing to the legal mind than to the lay". He said: "[I]t is an essential part of the system that the law should recognise that there are cases in which such factors should be dominating."

Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility:

'[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers.'

Lord Devlin also saw a third advantage in trial by jury:

'[M]inisters of justice have to serve two mistresses - the law and the aequum et bonum or the equity of the case. Their constant endeavour is to please both. That is why the just decision fluctuates ... between two points. In most systems the just decision is tied pretty closely to the law; the law may be made as flexible as possible, but the justice of the case cannot go beyond the furthest point to which the law can be stretched. Trial by jury is a unique institution, devised deliberately or accidentally - that is, its origin is accidental and its retention deliberate - to enable justice to go beyond that point.'

He considered that trial by jury had a "unique merit" in "that it allows a decision near to the aequum et bonum to be given without injuring the fabric of the law, for the verdict of a jury can make no impact on the law". Thus Lord Devlin saw the jury as being for some purposes "the best judicial instrument". A clear illustration of this role of the jury is seen when the jury decides whether the facts it finds answer certain legal criteria. That phenomenon is recognised by s 118(6) of the Criminal Procedure Act, for the court may refuse to order trial by judge alone "if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness". Other examples of factual issues requiring the application of "objective community standards" include whether behaviour was "threatening, abusive or insulting"; whether conduct was "dishonest", a matter to be decided by the jury "according to the ordinary standards of reasonable and honest people"; whether an assault is "indecent"; and whether an accused person had a particular intention.

Lord Devlin saw a fourth advantage of jury trial which was "of great importance in the constitution. The ... existence of trial by jury helps to ensure the independence and quality of the judges."

A fifth advantage detected by Lord Devlin was:

'[T]rial by jury ... gives protection against laws which the ordinary man may regard as harsh and oppressive. I do not mean by that no more than that it is a protection against tyranny. It is that: but it is also an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement. They have in the past used their power of acquittal to defeat the full operation of laws which they thought to be too hard.'

In this respect, an accused person who is tried by judge alone is in a very different position from one tried by jury. A jury may have no right to acquit in the face of evidence, but, unlike a judge sitting alone, it has a power to do so, and a power which it is impossible to control on appeal because of traditional limitations on the capacity of the prosecution to appeal from acquittals. In R v Shipley, Lord Mansfield CJ said:

'It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.'

As Lord Goddard CJ told the House of Lords in 1955, "no one has yet been able to find a way of depriving a British jury of its privilege of returning a perverse verdict". A judge cannot tell a jury to convict, for that would be to make the judge "decide the case and not the jury, which is not the common law". The Criminal Procedure Act has gone a step further from the common law by making the judge decide the case without any jury being present at all. The fact-finding procedures of juries thus can be marked by a kind of benign irrationality, for it is open to juries to acquit in the face of very strong evidence merely because they dislike some aspect of the law being enforced, or the behaviour of the police, or the testimony of prosecution witnesses or the conduct of the judge. A judge sitting alone, however, is expected to conform in all respects with rational criteria - the criteria commanded by applicable rules of law, and the criteria imposed by the "logical faculty" - in assessing the credibility of witnesses, in weighing the probabilities of particular events having happened and in drawing inferences from primary facts." (footnotes omitted)

25 Heydon J also recognised that not everyone admires jury trial and identified what his Honour referred to as the "irrational" aspects of trial by jury in criminal cases. His Honour said:

"The selection of 12 as the number of jurors has never been satisfactorily explained. Jurors are expected to understand, remember - on occasions for months - and weigh evidence, which is sometimes not given clearly or is complicated in character, often without ever having done this before. They are expected to grasp and apply sometimes complex propositions of law, almost always without any prior experience of or training in this activity. Many jurors were and are "unaccustomed to severe intellectual exercise or to protracted thought". The development of jury trial has been "irrational" in the sense that the jury began, against the background of irrational modes of trial like trial by ordeal and trial by battle, as a body selected for the very reason that the jurors, men of the neighbourhood, had knowledge of the facts relating to the dispute. In this respect it was superior to those rival modes of trial shortly to be forbidden by the Fourth Lateran Council in 1215. But now persons who have any prior knowledge of the dispute or the protagonists in it are likely to be excluded from the jury. The jury is now a body which knows nothing, beyond the teachings of common experience and what may be judicially noticed, except what witnesses tell it or supply to it. It began in order to serve one function; it came to serve another; and its role in performing that latter function has been deliberately preserved."

26 Heydon J discussed the protection afforded an accused person flowing from the jury's right to return a perverse verdict and recognised the benefits derived from the obligation of a jury to return a unanimous verdict. Of course, in some jurisdictions, including New South Wales, that principle has been eroded: see Juries Act 1927 (SA) s 57; Criminal Code (NT) s 368; Juries Act 2003 (Tas) ss 3, 43; Criminal Procedure Act 2004 (WA) s 114; Jury Act 1977 (NSW) s 55F(3); Juries Act 2000 (Vic) s 46. Trial by judge alone removes the principle of unanimity by multiple decision makers but, as Heydon J indicated, it is replaced by the duty of a judge to give reasons which "can operate to safeguard the interests of the accused and the public interest generally": at [104]. His Honour continued: "that is because a move to trial by judge alone causes appeals to operate in a radically different way. It is much easier for an appellate court to detect appellable error where reasons for the verdict at trial must be provided than it is when the appellate court is limited only to the record of the proceedings before a jury."

27 Trial by jury of civil disputes has, at least in New South Wales, virtually disappeared. It remains for defamation cases, although it is burdened in those cases by the many practical difficulties inherent in explaining the arcane principles of defamation law to laypersons. The move to judge-alone trials was not without controversy: Statement of the Bar Council of the New South Wales Bar Association, Your Right to a Jury Trial (1965); see also Ian Barker QC, Sorely Tried: Democracy and Trial by Jury in NSW, Francis Forbes Lecture Series (2002) at 242. However, it continues today with only the occasional suggestion that a jury trial would be preferable or that individuals or corporations have suffered any injustice by not having a jury decide their case. As Heydon J pointed out, it enhances the capacity for appellate review, the facts being first determined by the trial judge and subject to reconsideration by the Court of Appeal. Many would accept that there is a benefit by having four judicial minds applied to the task of discerning the appropriate law and applying it to the facts: see Lord Devlin, Trial by Jury at 134-135.

28 A measure of the controversy can be seen in the decision of the Court of Appeal in Pambula District Hospital v Herriman (1988) 14 NSWLR 387. The case concerned proceedings by a patient of the hospital who sued in negligence. The plaintiff requested that the Court dispense with a jury pursuant to s 89(1) of the Supreme Court Act. That section empowers the court to order that issues of fact be tried without a jury.

29 Section 89(1) was set against the background that the Supreme Court Act, with certain exceptions, provided that proceedings were to be tried without a jury. However, in proceedings on common law claims, parties could requisition a jury pursuant to ss 86 and 87. Section 88 provided that certain proceedings, including those involving issues of fraud or defamation and some others, were to be tried with a jury. The defendant sought a jury.

30 The application of s 89(1) had proved controversial and the Common Law judges had divided opinions as to the matters relevant to deciding whether to dispense with a jury. The nature of that controversy has relevance to the present case. It concerned whether matters of more general concern, including efficiency, cost and the predictability of verdicts, were relevant considerations. As it happened, the Court of Appeal divided. Kirby P and Samuels JA upheld the appeal, while Mahoney JA dissented.

31 Kirby P recorded the arguments in favour of the "right to trial by jury" in terms which echo the words of many supporters of trial by jury in criminal trials. I can do no better than repeat the President's discussion of the issue (at 394-395):

"The appellant argued that the right to trial by jury, even in a civil action and even in the somewhat circumscribed terms provided by the Act, was a precious civic right. The extent that this was so, so it was argued, could be gleaned from the ancient lineage of jury trials, the general satisfaction felt with jury awards, the opportunity thereby provided for the involvement of citizens and their values in the administration of justice and the numerous judicial encomiums about jury trials both in England and in this country: cf Blackstone, Commentaries, Book IV, 349-350 where the jury is described as the "sacred bulwark of the nation". Typical of like judicial observations are the remarks of Atkin LJ in Ford v Blurton (1922) 38 TLR 801 at 805, when his Lordship was reluctantly driven to the conclusion that s 2(1) of the Administration of Justice Act 1920 (UK) deprived a party of trial by jury:

'... for the first time in history the British subject is permanently deprived of his right to have common law actions tried by a jury. For the future the right to a jury is taken away. Whether a jury shall try a dispute is left to the uncontrolled discretion of a Master or a Judge ... I speak reluctantly because I cannot bring myself to believe that this far-reaching result was intended by the Legislature. Trial by jury, except in the very limited classes of cases assigned to the Chancery Court, is an essential principle of our law. It has been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Anyone who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organizations or by encroachments of the executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American constitution. A wise and temperate discussion of the whole question will be found in the second report, dated April 30, 1853, of the Common Law Commissioners, appointed in 1850. Hitherto, notwithstanding the far-reaching changes of the Judicature Acts, the right to trial by jury has been substantially maintained. The right to a jury, up to 1918, had always been asserted in express terms in the rules of the Supreme Court ... The war resulted in the temporary withdrawal of the right to a jury ... There already existed a rule that a Judge might direct trial without a jury in cases where an action required prolonged examination of documents or accounts or any scientific or local examination which ... could not conveniently be made by a jury ... I do not myself see any inconvenience in trying before a jury contested facts, even though upon their ascertainment questions of law may emerge. It seems to me to be everyday practice to try such cases with a jury.'

Atkin LJ closed his judgment with an appeal for a Parliamentary reconsideration of the section.

The normal method of trial in all civil cases in England, for five hundred years, was by jury: see Ward v James [1966] 1 QB 273. In that case, it was pointed out in argument that the civil jury was the foundation of our liberties and is a "common law right which is highly valued". The withdrawal of the right during the First World War was referred to, as was its substantial restoration by the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK).

Ward v James is one of a number of cases in England at about the same time which examined the operation of the Rules of the Supreme Court, O 36, r 1(3), made pursuant to s 6 of the 1933 Act. That rule provided a general discretion in a judge to "determine whether the trial is to be with or without a jury". Specifically it provided that the discretion was "an absolute one". Special provision was made by s 6 of the 1933 Act for trial by jury in reputational cases and unless the court was of the opinion that the trial required prolonged examination of documents, etcetera. It is plain that the lineage of s 88 and s 89(2) of the Supreme Court Act may be traced to these provisions and those which went before them in England.

The language used in the English authorities must, however, be approached with caution in this State. This is not only because of the significantly different terms in which the legislation of the two jurisdictions is expressed. It is also because, in the judicial elaboration of the statute and Rules of Court in England, the judges appear to have introduced a requirement on the part of the applicant for jury trial to show "special circumstances", although such requirement is not provided for either in the Act or the rules: see, eg, Watts v Manning [1964] 1 WLR 623; [1964] 2 All ER 267; Hennell v Ranaboldo [1963] 1 WLR 1391; [1963] 3 All ER 684 and Sims v William Howard & Son Ltd [1964] 2 QB 409.

Examination of these and other decisions of the English Court of Appeal suggest that the introduction of the necessity to show "special circumstances" to secure trial by jury of a personal injuries action was based upon judicial policy. That, in turn, appears to have been grounded in a stated concern about the suggested excess of some jury verdicts and the need to secure comparability of awards of personal injury damages in like cases. It is worth remarking in the present appeal upon the irony that here the applicant for trial by jury is the defendant in such an action whereas it is the plaintiff who seeks trial by judge alone.

There is nothing in s 89 of the Act or any of the surrounding sections, to require that "special circumstances" be shown to warrant either the retention or discharge of a jury to try a common law damages action. When under the Act Parliament required "special grounds" to appear before an order of a particular kind should be made, it so enacted: see, eg, 75A(8) of the Act. Therefore reliance upon English authority elaborating different legislative provisions and evincing a judicial policy which might not be appropriate for this State, involves dangers. Safer by far is adherence to the language of the Act, read in the context of its local history.

Agitation for jury trial in the New South Wales colony began as early as 1791: see J M Bennett, "The Establishment of Jury Trial in New South Wales" (1961) 3 Syd L Rev 463 at 464. Successive Governors, from the earliest times, favoured the provision of juries, particularly in criminal trials. The earliest court for the trial of civil actions, the Civil Court, which first convened in July 1788, did not provide for jury trial. Nor did the Supreme Court established by the Charter of Justice of 1814. It was the New South Wales Act of 1823 (4 Geo IV C 96) pursuant to which the present Supreme Court was later established by Charter issued by the Crown, which allowed for the trial of issues of fact by jury if both parties concurred in an application for that purpose. By 9 Geo IV C 83 (1828), the Court was afforded a discretion to allow trial by jury on the application of either party. There was also reserved to the local Legislative Council "by some general law or ordinance" to decide "the qualification, numbers and summonses and other rules for the constitution and proceedings" of such juries. The history of the gradual introduction of juries in New South Wales is described in essays which have secured fresh attention because of the Bicentenary: see, eg, P H Henchman," The New South Wales Jury of Four Persons" (1959) 33 ALJ 235; J M Bennett (above) and A C Castles, An Australian Legal History (1982) at 75ff: see also M H McHugh "Jurors' Deliberations, Jury Secrecy, Public Policy and the Law of Contempt" in M Findlay and P Duff (Eds) The Jury under Attack (1988) at 56, 57. The special provision reducing the civil jury, in the normal case, from twelve (which had been the traditional number in England) to four was introduced by the statute 8 Vic No 4 (1844). In his judgment in Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 489f, Else-Mitchell J details this history, including the consolidation of 11 Vic No 20 (1847) which passed into the Jury Act 1912.

By the end of the nineteenth century jury trial was certainly the normal mode of trial for disputed issues of fact in common law proceedings in the Supreme Court. Section 29 of the Jury Act 1912 so provided. In the last-mentioned case, Else-Mitchell J held that there was both an inherent and statutory power in the Court to determine that a matter should proceed without a jury in certain circumstances. His Honour so ordered in that case. However, the normal rule and practice was as stated. By the 1960s, in this State, as earlier in England, a controversy had arisen about the merits of jury trial of civil causes. That controversy was stimulated by a paper delivered by Wallace J (as the former President was) "Speedier Justice (and Trial by Ambush)" (1961) 35 ALJ 124. The paper canvassed various ways by which modification of jury trial, without total abolition, could be introduced to reduce the delays and costs of litigation in the State and to promote greater consistency of decision making. The paper sparked a lively debate at the 12th Australian Legal Convention to which it was read (see especially ibid 140ff). Most of the commentators defended the civil jury by reference to legal authority, judicial opinion and personal experience. But the paper proved influential. In 1965, following a change of government in New South Wales, Parliament enacted the Law Reform (Miscellaneous Provisions) Act 1965. By s 5(1) of that Act, provision was made whereby running down cases would thereafter normally be tried by a judge without a jury. That provision, and s 4 of the 1965 Act (which was associated) became in 1970 the s 87 of the Supreme Court Act. It was that Act which gathered together provisions in relation to jury trial in the Court formerly found in the Jury Act and in other provisions. The terms of the Act are to be understood against the background of the common law rights and statutory arrangements which had obtained in the State before 1970."

32 Kirby P traced the history of juries in civil trials in this State and of the different manifestations of s 89(1). His Honour referred to the Second Reading Speech of the Attorney-General in which the Attorney-General indicated that the legislation was initiated as a response to the delay in hearing cases in the Common Law list, causing significant problems for persons suffering the latter stages of illness occasioned by asbestos. The Attorney-General contrasted New South Wales courts with those in other states, which had had "a broad discretion to dispense with civil juries where that would be in the interests of justice." The President noted that those words had not (unlike s 132 of the Act) found their way into the legislation and furthermore emphasised that the Attorney-General had gone on to say that the court would be able, by reason of the amendment, "to make a decision consistent with the needs of justice in each particular case."

33 In the final analysis, Kirby P concluded that the primary judge had erred by having regard to matters of general convenience rather than the interests of justice in the particular case. The President said at [400]:

"the basic flaw in Cole J's reasoning was in considering to be relevant as such, universal characteristics of jury trials. This was impermissible because the scheme of the legislation assumes that jury trials will continue to be available for proceeding on a common law claim such as this. Indeed, whether or not s 86 of the Act confers a "right", strictly so called, it does envisage that a party to proceedings on a common law claim will continue to have an entitlement to requisition a jury. Having done so (as the appellant is to be taken to have done here) the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the Court that it should exercise its discretion upon the particular application made, to order that the trial be had, despite that fact, without a jury. It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trial would continue, except where the discretion under s 89(1) of the Act was exercised.

This is not to say that the general characteristics of jury trials, as such, may not have consequences upon a particular litigant that would warrant account being taken of them, in exercising the discretion under the section as they produce such consequences. Thus, if a litigant were seriously ill or dying, the difficulties and delays of the jury list or of jury trial itself, would certainly be relevant considerations to be taken into account, as Clarke J suggested in Peck v Email Ltd.

There is nothing in the above Parliamentary debates which takes the meaning of the legislation beyond that which emerges from the statute itself."

34 Samuels JA agreed with the President. His Honour said of s 89 (at 412-413):

"The question which a judge exercising discretion under s 89 must ask is not whether trial with a jury or trial by a judge should be ordered as the most efficient means of disposing of litigation of the class in suit, but rather whether there are reasons for concluding that the jury assigned to the case by dint of a party's statutory right (conditional though it may be) should be dispensed with. Moreover, this inquiry must be made in the knowledge that by passing a measure in the terms of s 86 and, especially by leaving it unamended when s 89 was varied, the legislature has indicated that it regards trial with a jury as a proper and acceptable mode of trial in the cases in which it is available. The legislature has not yet concluded that the various matters set out by Cole J in Smoje and placed in the forefront of the appellant's argument on this appeal, are such as to render a jury an incompetent tribunal for determining facts or assessing damages.

It must follow that there can be no room in the exercise of this discretion for consideration of matters which are, as the President has put it, "of universal application to all jury trials". The undoubted circumstances that trial by jury is longer, and therefore more expensive, and procedurally more inflexible than trial by judge alone, are not to be taken into account. The legislature clearly must have determined to accommodate them when it provided that, in a particular class of case, a jury might be requisitioned by the act of one party. The same characteristics entail that jury trials tend to clog up the lists and impede the expeditious trial of matters to be dealt with by a judge alone. But this again is an inevitable consequence of preserving trial with a jury. It must, once more, have been intended by the legislature that these detriments must be stoically endured as the appropriate price for the continued employment of civil juries. Whether the value of the commodity is worth the expenditure in time, money, frustration and delay is a debatable question which falls, however, outside the scope of this judgment. It is also, I venture to say, outside the scope of the discretion under discussion, whose exercise cannot, to my mind, involve considerations of how the general dispatch of business in the list can best be promoted; and if the remedy for delay is in part the abolition or reduction of trials with juries, that physic is not a relevant ingredient in the decision whether or not to dispense with the jury requisitioned in the particular case. Accordingly, I agree in general with what the President has written about the necessity to exclude from examination in the exercise of this discretion matters which are wholly general or universal, and which raise only the inherent and inevitable consequences of employing juries in civil trials. The Parliament has decreed that juries are to be retained and that means warts and all. The presence of the warts cannot be used to destroy the picture. They are part of the picture. Accordingly, in order to make good an application to dispense with a jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general character of a jury trial. For example, the state of the jury list, if it entails a delay likely to exceed a plaintiff's life expectancy, would be a matter involving the particular application of a general condition. But the argument (however correct in fact) that to dispense with a jury or two at the top of the list would accelerate hearings at the bottom, would not. Specific difficulties in obtaining the attendance of witnesses might constitute grounds for preferring the greater flexibility (in point of adjournments and otherwise) of non-jury trial and for dispensing with a jury. But the fact that in the instant trial, alike with all other jury trials, there are problems in securing the orderly attendance of expert witnesses would not."

35 The nature of trial by jury and trial by judge alone have been considered on other occasions. In Swain v Waverley Municipal Council [2005] HCA 4, 220 CLR 517, Gleeson CJ discussed the recent trend toward the use of a judge alone rather than jury trial. Although speaking in the context of civil trials, his Honour observed the trend toward reasoned decisions, also acknowledging that involving the public in the administration of justice and keeping the law in touch with community standards were "important collateral advantages" of the jury system. The Chief Justice said:

"The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly. The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision. In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community, properly instructed as to their duties, deciding the facts, on the evidence, as a group. In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given. In the administration of criminal justice in Australia, the former process is normal, at least in the case of serious offences. In the administration of civil justice, in New South Wales and some other jurisdictions, in recent years there has been a strong trend towards the latter process. Originally, there were no procedures for appealing against the verdict of a jury, reflecting what Barwick CJ described as "the basic inclination of the law towards early finality in litigation". He referred, in another case, to the move towards trial by judge alone in civil cases as an abandonment of "the singular advantage of the complete finality of the verdict of a properly instructed jury". In many areas, the law seeks to strike a balance between the interest of finality and the interest of exposing and correcting error. In a rights-conscious and litigious society, in which people are apt to demand reasons for any decision by which their rights are affected, the trend away from jury trial may be consistent with public sentiment. Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards." (footnotes omitted) [7]

36 Gibbs CJ in Brown at 179 spoke in similar terms of the "collateral" advantages of trial by jury. However, this view may be contrasted with the opinion of Deane and Dawson JJ that trial by jury should not be understood as only conferring a right or privilege on an accused. Deane J said at 202:

"The institution of trial by jury is also a source of other benefits to the community as a whole. In Kingswell [v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 301-302] I endeavoured to identify the more important of them. It is unnecessary that I repeat what I there said. It suffices to say that the advantages of trial by jury to the community generally serve to reinforce what the plain words of the Constitution convey, namely, that the general prescription of trial by jury as the method of trial on indictment of any offence against any law of the Commonwealth constitutes an element of the structure of government and distribution of judicial power which were adopted by, and for the benefit of, the people of the federation as a whole. To construe the fundamental law of s. 80 as involving no more than the mere conferral of a privilege would be to distort the whole by confining attention to a single aspect."

37 Similarly, Dawson J said at 209:

"Trial by jury is the method selected by s. 80 for the achievement of this high aim in proceedings upon indictment, and there is nothing on the face of that section to suggest that the benefits which it secures may be waived as a matter of choice by either the accused or the prosecution. No doubt the section confers a benefit on every person charged on indictment under a Commonwealth law, but its benefits extend beyond the individual and its guarantee is more than personal."

38 Before turning to decisions of particular relevance to s 132 I should refer to the common law's acceptance, notwithstanding indications that from time to time there may be problems, of the capacity and functioning of the jury in a criminal trial. Under the heading "the function of the jury" and in the context of an application for a permanent stay of the trial, by reason of adverse publicity, the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 confirmed that the common law accepts that the jury provided with appropriate directions is a robust institution capable of providing a just decision:

"Nettle JA based his decision upon the footing that to grant an indefinite stay "would be to recognise that the media has the capacity to render an accused unable to be tried" and this would deny the 'social imperative' that an accused be brought to trial.

There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:

'Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.

In his reasons for dismissing the stay application, which are extracted in part and described above, Cummins J used similar terms with respect to the conduct of jury trials in Victoria.

Earlier, in Gammage v The Queen Windeyer J expressed the governing principle in terms which acknowledged that the jury room might not be a place of undeviating intellectual and logical rigour (a point made by Callinan J in Gilbert v The Queen) by saying:

'A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted.'

Conclusions of this kind are not examples of the "ordinary" questions of fact which regularly arise for determination. The assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of 'constitutional fact', in the sense of that term explained by Heydon J in Thomas v Mowbray.

Whilst the criminal justice system assumes the efficacy of juries, that 'does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.' In Glennon, Mason CJ and Toohey J recognised that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.' What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused." (footnotes omitted)

New South Wales decisions in relation to s 132

39 The New South Wales decisions in relation to applications pursuant to s 132 include R v GSR (3) [2011] NSWDC 17. One issue in the case was whether there was an onus on an accused person in relation to an application under the section. Woods DCJ identified three possibilities. First, it could be assumed that there was a "default" position of trial by jury which his Honour identified as a presumption in favour of trial by jury rather than by judge alone. Secondly, the reverse position that there ought to be trial by judge alone if the accused asked for it. The third approach, which was the approach that Woods DCJ accepted, was that there was no presumption either way but that the court should "engage in the exercise of judicially weighing factors relevant to the interests of justice overall" at [14]). His Honour was influenced in adopting this view by the amendment to the section which removed the requirement for the prosecution to consent to the application. His Honour accepted that "the interests of the accused" are relevant (at [16]) to the decision as to whether or not it is in the interests of justice that an accused person be tried by a judge alone.

40 In R v Markou [2011] NSWDC 25, Berman DCJ considered and granted an application for a judge alone trial. His Honour concluded that when considering whether it was in the interests of justice that there be a judge alone trial, the likely efficiencies in the conduct of the trial without a jury were relevant considerations. His Honour also considered it relevant that a judge was required to give reasons but a jury was not. His Honour concluded "that the interests of justice are enhanced by the giving of reasons" (at [9]).

41 His Honour accepted that the default position was that a trial should be held before a jury and acknowledged the role which the community played as members of juries in the administration of justice. However, his Honour concluded that "where the trial would be quicker, more flexible, and the trial judge would be able to give reasons, I am satisfied that the interests of justice do require that I make the order that the trial be held before a judge alone" (at [11]).

Decisions in Western Australia

42 The first decision in Western Australia of relevance is Arthurs. In that case the solicitor acting for Arthurs had sworn an affidavit in support of the application in which he gave evidence of the significant volume of adverse publicity which preceded his client's trial. He also deposed to the extent of the information available about Arthurs on the internet.

43 After reviewing the evidence, Martin CJ concluded (at [38]) that "some of the material is likely to have a profoundly disturbing effect, testing the emotional strength of anybody required to review it whether juror or judge."

44 The Western Australian legislation was preceded by a review of the issues by the Law Reform Commission of Western Australia. One of the reasons for the amendment which was identified by the Commission was the prospect that an accused person's trial may be prejudiced by previous media publicity or by evidence which the jury might find revolting.

45 Martin CJ reviewed the relevant authorities. He identified two decisions in Western Australia, State of Western Australia v Tarau [2005] WASC 290 and State of Western Australia v Iley [2006] WASC 107, where the application was granted in circumstances where the essential issue was whether an accused person was not guilty by reason of insanity.

46 The third decision which his Honour identified as relevant was that of Heenan J in Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380. In that case three accused persons, who were jointly indicted on charges of murder, applied for trial without jury. Heenan J observed (at [5]) that the legislation provided no limit on, or elaboration of, the criteria for the grant of such an order and concluded that the discretion of the court to grant an application was at large. His Honour also noted that the legislation provided that, if the issues for the trial require the application of objective community standards, the application may be refused.

47 Martin CJ (at [66]-[67]) agreed with Heenan J's view that a judge should not approach an application on the footing that there was a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point.

48 Martin CJ also referred to the judgment of Deane J in Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, where (at 301) his Honour expressed the view that the community is more likely to accept a jury's verdict than it is to accept the judgment of a judge or magistrate. Martin CJ respectfully declined to accept that view as being of significance in the instant case and emphasised that a judge is required to provide detailed reasons for his or her decision, which can be evaluated both by the community and by any appellate court. His Honour contrasted this position with that of a jury verdict, which he described as "entirely inscrutable": (at [74]). The Chief Justice said (at [74]):

"Our community has come to expect reasoned justice in all civil cases, in all summary trials, in all administrative tribunals and at least in the sphere of commonwealth administration the vast majority of administrative decisions."

49 His Honour continued (at [75]):

"The obligation to provide reasons not only disciplines the decision maker but also provides a transparency and capacity for evaluation which the community has come to expect. In that context, the lack of any obligation on the part of a jury to provide reasons is somewhat anomalous but, as I have observed, in my view it is no part of the function of a judge determining an application under s 118 to act upon a general view as to the desirability of one form of trial over another."

50 Martin CJ concluded that the subjective views of an accused person were relevant to the issue, provided they were "not fanciful or irrational": at [79]. Accordingly, the Chief Justice concluded that an apprehension by an accused person that he or she may not get a fair trial because of pre-trial publicity or because of his or her ethnic, religious, cultural or other peculiar circumstances may be entitled to significant weight (at [79]). However, his Honour observed that he had no evidence before him of the subjective views of Arthurs save as to what could be inferred from the fact of the application.

51 The Chief Justice ultimately concluded that there were no factors which supported trial by jury in the instant case, but there were factors arising from the pre-trial publicity, the availability of reasons and the circumstances of the particular offence which supported a conclusion that it was in the interests of justice that the trial be by judge alone: at [85]-[93].

52 In TVM v State of Western Australia [2007] WASC 299 the accused was charged with one count of arson and one count of murder. The accused's solicitor deposed to his knowledge of the accused's belief that, because both he and the deceased were homosexuals and Jehovah's Witnesses who were prominent in the affairs of their sect, he (the accused) may not get a fair trial by jury.

53 McKechnie J considered the decisions in both Martinez and Arthurs but concluded that because the legislature had provided a right to make an application for an order for a trial by judge alone, it must be assumed that in the ordinary course a trial should be by jury. His Honour declined to follow the decisions in Arthurs and Martinez in so far as they held that in the resolution of an application a judge starts from a neutral position as to a preferred mode of trial. His Honour said (at [19]):

"In summary, s 118(4) requires a court to do two things. The first is to consider, on information, whether it is in the interests of justice to grant an application for trial by judge alone. If the court so concludes, the next issue is whether to exercise a discretion to grant such an order. In the exercise of that discretion, but without limiting it, the matters, where relevant, contained within s 118(5) and s 118(6) become important.

All this leads me to conclude that, with great respect, I am unable to follow the principle in Arthurs and Martinez that in the resolution of the application a judge starts from a neutral position as to a preferred mode of trial. Instead, it is my view that on an application under s 118 a judge, concluding that it is in the interests of justice for a trial to be held before a judge alone instead of judge and jury, exercises a discretion whether to make the order for trial by judge alone.

In most cases, a finding on the interests of justice is likely to be determinative of the exercise of the discretion to make an order but there may be some occasions where, despite that finding, the discretion is effectively exercised to continue trial by jury."

54 McKechnie J considered the content of the phrase "interests of justice." His Honour concluded that the interests of justice are not "coterminous" with the interests of an accused (R v Cox [1960] VR 665) and said (at [31]):

"to pay undue account to the subjective views of an accused person, as suggested in Arthurs at [79], [80] may have the result that a decision is really being made for the interests of an accused, not the interests of justice."

55 His Honour expressed his confidence in the jury system of trial, saying (at [32]):

"There is a public interest in the administration of justice carried out in public and in serious cases by the representatives of the public sitting as jurors. The fact that a judge must deliver written reasons, where a jury gives a general verdict, is of no consequence. That is the difference between the two modes of trial provided for by law. The inscrutability of a verdict of 12 is tempered by unanimity. The verdict of 1 is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid."

56 His Honour remarked on the fact that he had no evidence to support the apprehension of the accused that jurors may be biased or prejudiced against homosexuals or Jehovah's Witnesses and concluded that he was "unpersuaded on the material advanced" that it was in the interests of justice to make the order (at [36]).

57 There is a further Western Australian decision of significance. It is that of Commissioner Sleight in State of Western Australia v Rayney [2011] WASC 326.

58 Rayney was charged with murder and the grounds for the application were:

"The grounds of the application (as set out in written submissions) are that it is in the interests of justice to grant the order for a judge alone trial based upon the following:

(a)the extent and the nature of pre-trial publicity has created the danger of a prejudice against the accused;

(b)the accused wishes to waive his right of trial by jury as he is of the view that he will not receive a fair trial.

(c)the trial, due to its complexity and length, is likely to be unreasonably burdensome to a jury;

(d)due to the complexity and length of the trial, it is in the interests of justice that reasons be given for the decision."

59 The application was supported by extensive affidavit material.

60 The Commissioner granted the application. In the course of his reasons he determined that the discretion in the relevant section should be exercised in accordance with the following principles:

when considering what is in the interests of justice, a judge does not start from a notion that trial by jury is generally preferable to trial by judge alone (at [17]);

the applicant has (as does any applicant) the burden of convincing the court that it is in the interests of justice that an order be made for a trial by judge alone and that the discretion should be exercised in favour of such a trial (at [17]);

the relevant factors are not capable of exhaustive definition (at [18]);

the weight of individual factors will vary from case to case (at [18]);

weight should be given to the subjective view of an accused (at [26]);

the interests of justice include providing a trial that is likely to be perceived by the wider community as fair and independent (at [26]);

there will be cases where the giving of reasons may favour a judge alone trial (the Commissioner instanced a trial where the verdict depended on a correct comprehension of complex or technical evidence) (at [29]);

adverse pre-trial publicity may be relevant to whether an accused will receive a fair trial, which is a fundamental consideration of the interests of justice (at [34]); and

the length of the trial and the potential burden on jurors (at [37]).

Decisions in Queensland

61 In R v Fardon [2010] QCA 317 the Queensland Court of Appeal considered these questions. However, the issue did not need to be resolved, the court deciding, for reasons arising from a consideration of the evidence, that the verdict should be set aside and a verdict of acquittal entered.

62 Chesterman JA considered the authorities with respect to "the interests of justice" and concluded that it was a phrase "so general and, indeed, abstract, that it takes on meaning only by consideration of the particular facts relevant to an application for a no jury order" (at [74]).

63 In Fardon the application for a judge alone trial was supported before the primary judge on the basis that the pre-trial publicity may have had a prejudicial effect on the fairness of the accused's trial. The primary judge concluded that she had confidence in the jury's capacity to deliver a true verdict despite the "corrosive and prejudicial effect of pre-trial publicity." Chesterman JA then said (at [75]):

"That was a view open to her Honour and not one which, I apprehend, could have been successfully set aside on appeal. Nevertheless the appellant's conviction on an incoherent prosecution case may suggest that on this occasion the confidence was misplaced."

64 Chesterman JA addressed the controversy with respect to whether there was a presumption that a trial should be by jury. His Honour adopted the approach of McKechnie J in TVM, rejecting that of Heenan J in Martinez and Martin CJ in Arthurs, and concluded (at [81]) that:

"A trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice"

65 The reference by his Honour to the Code is a reference to s 604 of the Criminal Code Act 1899 (Qld) which provides in the relevant circumstances that if an accused enters a plea, other than a plea of guilty, autrofois acquit, autrofois convict or a plea to jurisdiction, the person is "deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury, and is entitled to have them tried accordingly."

66 Chesterman JA also considered the issue of whether one mode of trial is "more 'socially acceptable' than the other" (at [86]). In respect of that issue his Honour adopted the approach of Martin CJ. However, his Honour took a different view to Martin CJ with respect to the significance of an accused's subjective opinion that a trial before a jury might not be fair. Whereas Martin CJ in Arthurs thought that such a view "may be entitled to significant weight", Chesterman JA took the view that "more significant than an accused's subjective preference for a particular mode of trial are the grounds on which it might be said, objectively viewed, that there is a significant possibility that a trial before a jury might not be fair" (at [88]).

67 The principal judgment in Fardon was that of Muir JA. However, his Honour's consideration of the question of trial by judge alone was more confined than that of Chesterman JA. His Honour identified that critical to the primary judge's finding was her Honour's understanding that the accused would advance a defence of honest and reasonable mistake of fact, his defence may therefore have required the application of objective community standards (at [42]). Muir JA commented that the principles relevant when an application is made for a permanent stay provide a more onerous test than the statute provides in relation to an application for trial by judge alone (at [43]).

68 His Honour concluded that with respect to an application for a judge alone trial (at [44]):

"The overriding consideration in the exercise of a discretion under s 615 is whether it is in the interests of justice to make the order."

69 Fardon was followed by the decision of the Queensland Court of Appeal in R v Kissier [2011] QCA 223. In Kissier the appellant appealed against his conviction on a number of grounds, including that the relevant judge had erred in failing to make a no jury order (at [4]).

70 It was submitted that the pre-trial judge had erred in a number of respects. The first difficulty was said to be a failure to give weight to the appellant's waiver of his right to a jury trial by making an application under s 615 of the Criminal Code (Qld). The argument advanced by the appellant was that in circumstances where an accused elects to waive his or her right to a trial by jury, a no jury order should be granted, except in circumstances where the case involves the application of community standards as set out in s 615(5) of the Criminal Code (the equivalent of s 132(5) of the Criminal Procedure Act (NSW)).

71 In addressing this aspect, Mullins J, with whom the other judges agreed, gave consideration to whether the correct approach to s 615 involves a presumption in favour of trial by jury. Her Honour expressed agreement with the views of Chesterman JA in Fardon and said at [30]:

"In light of the purpose for which provision for a judge alone trial was introduced into the Code and that the discretion to make a no jury order may be exercised only if the Court considers it is in the interests of justice to do so, I favour the view expressed by Chesterman JA at [81] of Fardon. The process for the determination of the application that is reflected in the terms of s 615 does not require expression of a starting point on the application for a no jury order that both methods of trial are equally valid."

72 However, as the pre-trial judge had refused to make a no jury order and had approached the determination of the application "without any preconception or presumption about the appropriate mode of trial in a particular case", Mullins J acknowledged that a conclusion about the correct starting presumption for a no jury application was not strictly necessary for the determination of the case (at [30]).

73 Mullins J then considered the weight that should be given to "waiver" of the right to trial by jury of the accused. Her Honour said at [31]:

"As a matter of statutory interpretation, the appellant's contention that the making of the application for a no jury order determined the outcome of the application in his favour cannot be sustained."

74 An application for leave to appeal to the High Court on the ground that Mullins J had incorrectly interpreted s 615 as incorporating a presumption in favour of trial by jury was rejected. Kiefel J indicated that the Court understood that the pre-trial judge had determined the application on considerations of justice and not upon any presumption concerning the appropriate mode of trial: Kissier v The Queen [2012] HCATrans 28.

Submissions in the present case

75 The Crown submitted that in the present case the trial judge had erred by giving undue weight to the respondent's apprehension that jurors may be biased against him. It was submitted that his Honour had failed to give adequate weight to the fact that jurors are selected at random and are drawn from a diverse pool of people in the general community. It was submitted that his Honour should have had regard to the fact that each juror will be invited to be excused if he or she is unable to give impartial consideration to the case.

76 It was further submitted that the Court was required to determine the application by consideration of relevant evidence. It was submitted that there was no evidence to suggest that a jury is likely to be drawn from people who harbour anti-Muslim sentiment. It was submitted that his Honour failed to consider whether the perception of prejudice by the respondent, assuming it could be established, may be fanciful or irrational: Arthurs at [79].

77 The Crown further submitted that even if a juror may believe that males who adhere to strict Muslim beliefs may reflect those beliefs in their attitudes towards women, the essential issue in the trial was the respondent's motive in taking hold of the victim and the circumstances in which she came to be injured. This would require an assessment of his actions and those of the victim when the incident occurred. In assessing those circumstances the jury would be directed not to engage in an impermissible line of reasoning to the effect that the respondent must have intended harm to the victim due to his attitudes and beliefs regarding his wife.

78 The Crown emphasised that in his interview with police, the respondent indicated that his desire to know where his wife had gone was based on his concern for her, because he loved her and did not want to be worried about where she was. He said he was "not against her going to the beach." She had "a right to go anywhere she likes" and he could not stop her from seeing her sister. He denied threatening the complainant in the telephone conversation some weeks before the incident. He also denied assaulting her on 22 December 2009, claiming that he took hold of her only because she was becoming agitated and he feared she would fall. He denied any intention to harm the complainant. He also said he had no previous problems with his wife's family, including the complainant, and they came to dinner every Friday night.

79 The Crown submitted that where the respondent refers to his objections to the complainant's interference in his marriage in his record of interview, he does not relate this to a particular attitude towards women based on his Muslim faith. Accordingly, it was submitted that there was no evidence in support of his Honour's finding that the respondent's attitude towards the complainant had "a religious or cultural basis" which would be relevant to an assessment of whether his apprehension that he may not receive a fair trial by a jury was reasonable. In any event the Crown submitted that antiquated attitudes towards women are not peculiar to conservative Muslims; they are harboured by members of various ethnic and religious backgrounds. It was submitted that the mere fact that an accused has an attitude towards women, even if self-confessed, would not warrant a judge-alone trial and the fact that the respondent is of the Muslim faith does not make it any more appropriate for the matter to be heard by a judge alone.

80 The respondent submitted, relying on the decision in Arthurs, that the Court should take into account and give weight to the respondent's preference for a judge-alone trial. It was further submitted (although the submission was not developed) that the fact that reasons are given by a judge in a judge-alone trial is a factor in favour of granting the application. It was further submitted, relying on Markou, that the efficiencies inherent in a judge-alone trial were also a relevant consideration.

81 The respondent submitted that there would be significant prejudice flowing from the admitted conduct of the respondent in relation to his wife, which the jury may well use, despite directions from the trial judge, to impermissibly influence their decision. It was submitted that the respondent would be admitting to holding attitudes and beliefs that ordinary members of the community would in all likelihood find abhorrent.

82 It was further submitted that the controversy in the trial is confined to the intent of the respondent at the time he took hold of the victim. As this was a confined issue and there was no issue involving community standards (s 132(5)) it was submitted that this was another reason for the judge to order a judge-alone trial.

The task of this Court

83 Section 5F of the Criminal Appeal Act provides for appeals against interlocutory orders made by a trial judge. Subsection (2) provides an appeal as of right to the Director of Public Prosecutions against "an interlocutory judgment or order."

84 This Court has previously considered the correct approach to appeals under the section. In DAO v R [2011] NSWCCA 63 the Court assembled a bench of five judges to consider, inter alia, the approach it should take when asked to review a decision by a trial judge made pursuant to s 97 of the Evidence Act 1995. Section 97(1)(b) begins with the words "the court thinks that", which Spigelman CJ said introduced an element of subjectivity to the decision of the primary judge (at [27]).

85 The Chief Justice concluded that this formulation of the primary judge's task was analogous to the various statutory formulations which require a decision maker to be "satisfied" of a certain matter. His Honour concluded that this formulation conferred a wide discretion on a trial judge: (at [28]). The word "consider" is equivalent to "satisfied": (at [29]). The consequence is that a decision of a primary judge that requires him or her to be "satisfied" or to "consider" will be reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499. As Spigelman CJ explained, the line of authority flowing from Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 turns on the use of the word "satisfied" in the formulation of what may otherwise be a "jurisdictional question": (at [33]).

86 Section 132(1) provides that an accused person may apply to the court for an order that he or she be tried by a judge alone. Section 132(3) requires the judge to make that order if both the accused person and the prosecutor agree. In those circumstances the court has no discretion. If the accused does not agree an order cannot be made (s 132(3)). However, if the prosecutor does not agree "the court may make a trial by judge order if it considers it is in the interests of justice to do so" (s 132(3)).

87 A decision as to whether or not the trial should be by judge and jury or by judge alone is a decision on a matter of procedure. A decision as to whether there should be separate trials of co-accused is similarly a decision as to a matter of procedure. Accordingly, a high degree of judicial restraint is required of an appellate court when asked to review that decision: (at [55]).

88 It follows that the decision of the primary judge is reviewable for error in the exercise of the "discretion", which may involve acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or having regard to the relevant facts, a miscarriage of the discretion by reason that the decision was unreasonable or plainly unjust: at [78] (Allsop P). These are the principles discussed by Kirby P in Pambula Hospital at 401-402.

Consideration

89 Section 132 in its amended form is similar to provisions for a judge-alone trial in legislation in Western Australia and Queensland. However, s 118 of the Criminal Procedure Act 2004 (WA) provides in subsection (3) that, when considering the application, the court may inform itself in any way it thinks fit.

90 Section 132 of the New South Wales Act does not contain a similar provision. Accordingly, when considering an application under the section, apart from matters of which the judge may take judicial notice, the court is confined to the evidence placed before it. In the present case the respondent did not give evidence. The submission on his behalf was confined to an assertion that he adhered to conservative Muslim values which would, in the circumstances of the alleged offence, inevitably raise prejudice in the minds of jurors. I shall return to this issue.

91 As I have indicated, the primary judge accepted the Crown's submission that an accused person carries the onus of establishing that an order should be made. The Crown criticised his Honour's decision because the primary judge later asked the Crown to indicate any prejudice that the Crown or the community would face if the application were granted. It was submitted that this question and his Honour's later response to the effect that the Crown had not demonstrated prejudice revealed error, because his Honour erroneously assumed that the Crown carried an onus.

92 With respect, the submission is misplaced. His Honour did not ask the question in a manner which reversed the onus. Rather he was inviting the Crown to identify from its perspective how the prosecution or community interests should weigh in his Honour's assessment of where the interests of justice lay when considering the application for a judge-alone trial.

93 Section 5 of the Criminal Procedure Act provides that an offence must be tried on indictment unless it is an offence permitted or required to be dealt with summarily. The trial will take place in the Supreme Court or the District Court. Section 131 of the Act provides that criminal proceedings in both courts "are to be tried by a jury, except as otherwise provided by this Part."

94 As Kirby P said of s 89(1) of the Supreme Court Act, but for subs (5) and (7), s 132 of the Act contains no guidance as to the matters which may inform the "interests of justice" when an application is made for a judge-alone trial. Subsection (5) does identify the circumstance where a trial may involve a factual issue "that requires the application of objective community standards" as being one occasion when it may be appropriate to refuse to make an order. Subsection (7) encourages a judge alone trial where there may be a substantial risk of interference with a juror. Neither subsection (5) or subsection (7) are of direct relevance in the present case.

95 The decisions in Western Australia are each of a single judge but for the decision of Commissioner Sleight. The decision of the Queensland Court of Appeal on the relevant sections in Fardon was obiter. The decision in Kissier accepted that the fact that an accused made an application was relevant but not determinative. I agree with that view but accept that I would be obliged to follow it in any event.

96 This appeal raises questions of fundamental importance which the divergence of views in previous decisions confirms are not readily resolved. Although s 131 provides for trial by jury "except as otherwise provided", I do not think that the section has the effect of creating a "presumption" that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a "presumption" of trial by jury is displaced. Each mode of trial has its particular characteristics and, accordingly, depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a judge-alone trial rather than trial by a jury. Of course, absent an application by an accused person, the default position will be that the trial must take place with a jury. And, no doubt, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople. Subsection (5) acknowledges this consideration. However, I see no reason why the legislation otherwise requires particular weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers it is in the interests of justice to make the order.

97 In Swain, as I have previously identified, Gleeson CJ identified what he referred to as the collateral advantages of trial by jury. Two interests are commonly identified. First, the community has an interest in ensuring that, where relevant to the issues to be tried, serious criminal matters are determined in accordance with current community standards. Subsection (5) expressly acknowledges this matter. Second, the community has an interest in ensuring that there is public confidence in the criminal justice system. The jury, as a means by which the public may participate in the processes of criminal justice, has been accepted as having a role to play in legitimating the operation of the criminal law, thereby enhancing public confidence in the administration of justice. However, it must also be remembered that less than 3 percent of the criminal trials in this State now take place with a jury: (McClellan CJ at CL, "The future role of the judge - umpire, manager, mediator or service provider" p 2, 1 December 2011).

98 Furthermore as the length of trials grow problems with juror satisfaction with the process have increasingly been reported. New South Wales Attorney-Generals Department, Report of the Trial Efficiency Working Group (2009) at 59-61. Furthermore, as Heydon J recognised, the duty of a judge to give reasons can operate to safeguard the public interest.

99 In so far as the origin of a trial by jury was to provide a protection for the accused, in that he or she would be tried by their peers, where the accused applies in accordance with s 132 for a judge-alone trial, it is plain that the accused has, with proper advice, determined that the protection is not required. For this reason the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in his or her desire to dispense with a jury, must be a relevant factor: Arthurs at [79]. The protection which trial by jury is assumed to provide to an accused person by requiring a unanimous verdict of lay judges is no longer of relevance. Of course, the position as determined in Brown is otherwise with respect to a Commonwealth offence, where s 80 of the Constitution controls the situation. However it must be remembered that Brown was a decision as to the meaning of s 80 and was not, at least so far as the majority were concerned, determined by where the interests of justice may lie. Rather, their Honours concluded the position was constrained by the words of the Constitution.

100 Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, "in the interests of justice", that there should be trial by jury. However, where, as in the present case, the trial will not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor.

101 However, the decision that the judge is required to make must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused's trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused's apprehension is soundly based.

102 The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial.

103 Although the foundation for a decision to order a judge-alone trial under s 132 is that it be in the "interests of justice." I understand that concept in similar terms to the approach which Kirby P took in resolving the issues in Pambula Hospital. The court must determine whether it is in the interests of justice in the particular case to provide for a judge-alone trial.

104 In the present case, although the primary judge had before him the records of interview of the respondent and the statements from his wife and the complainant, his Honour did not have evidence before him to allow an evaluation of whether the respondent's concerns had substance. The respondent's position was confined to a submission by his counsel that he feared that a jury may be prejudiced against him because of his conservative Muslim beliefs.

105 It may be inferred from the primary judge's reasons that his Honour accepted that the subjective views of an accused person that he may not get a fair trial if tried by a jury are relevant when considering an application. Of course, in every case the inspiration for the application will be the accused's perception as to the likely fairness of a trial by jury in his or her particular circumstances.

106 In Arthurs there was evidence before the court of the burden of pre-trial publicity which the accused had been required to endure. Although Martin CJ said that it would have been preferable for there to be evidence of Arthurs' subjective views before they could be considered, it was not difficult to identify them and reach the conclusion that he might rationally fear whether he would receive a fair trial. The position is different in the present case.

107 It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding "conservative" views about the place and role of women in marriage or in wider society. However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result. Those protections include the practice that before jurors are selected, each member of the panel will be reminded of their obligation to bring an impartial mind to the decision, and after being informed of the alleged offence, the identity of the accused, and the nature of the issues in the trial, asked to consider whether they can fairly consider the relevant issues. In the present case the jury would be told that the accused is a Muslim and that an issue in the trial is whether his actions in respect of his wife's sister were motivated by his attitude to the role of women in marriage. There will of course be extra protection afforded to the appellant by the trial judge's directions to the jury, which will remind them that they must decide the case having regard to the evidence and be careful not to let any prejudice they may have influence the decision. The jury may conclude that the respondent acted as he did because of his strict Muslim views, but this would be a conclusion founded upon the evidence and not resulting from any prejudice against Muslim people. The respondent's conservative views in relation to women may be an important element in the Crown case, but not because of any inherent prejudice in the community against persons who hold those views.

108 The primary judge did not approach the issue in this manner. There was no evidence of the existence in the community of the prejudice which was asserted. His Honour did not consider whether, if such a prejudice exists, it could be neutralised or removed by the directions of the trial judge. Although I recognise the caution which this Court must take when asked to reconsider the decision of a trial judge made under s 132, I am satisfied that in the present case the decision which his Honour made was not open. His Honour did not have evidence to allow him to make the finding which he did. Furthermore, his Honour did not consider whether by following the conventional procedures for trial by jury the prejudice which the respondent feared could be avoided. For these reasons the appeal must be upheld and the decision of the primary judge quashed.

109 The present case is the first occasion on which s 132 has been considered by this Court. The issues which have been raised in this appeal extended beyond matters considered by the primary judge. Two matters of particular significance should be discussed.

110 In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantage available to an accused person and the community if reasons for the verdict are available from the trial judge: Markou at [6]-[8]; Arthurs at [76], [92]; see also Rayney at [29], [37]. For my part I would accept that as part of the mix of issues which must be considered the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligation on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie. Trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution.

111 However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.

112 As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.

113 As Martin CJ remarked in Arthurs, the recent trend in many areas has been to require a decision-maker to provide reasons for his or her decision. The giving of reasons requires the decision maker to consider the evidence, follow accepted methods of reasoning, and express the reasons for the decision in a manner which can be understood and analysed by others. If accepted to be sound, published reasons must serve to enhance confidence in the process of the law. If not sound, they can be challenged and, where relevant error is identified, the decision can be corrected.

114 Whether a jury has correctly understood the facts and correctly applied the law can never be authoritatively determined. However, it must be remembered that the jury's verdict is a "community decision." The jury has a right to bring in a perverse verdict and acquit an accused: Bushell's Case (1670) 124 ER 1006; R v Shipley (1784) 4 Doug 73, 170; Chandler v DPP [1964] AC 763 at 804. Whether that right is compatible with contemporary notions of justice, balancing the interests of an accused and the State, and whether it is still generally accepted by the community, is of course unknown. However, any accused person who believes that right of a jury may be to their advantage is unlikely to apply for a judge-alone trial. Notwithstanding the significance of these issues, as I have discussed, the decision in this case does not turn upon them.

Orders

115 In my judgment the appeal should be upheld and the decision of the primary judge quashed.

116 HIDDEN J: I have had the advantage of reading in draft the reasons of McClellan CJ at CL. I agree that the primary judge fell into error in his approach to the application for the reasons identified by the Chief Judge, and I agree with the order proposed.

117 I also appreciate the Chief Judge's examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues. Generally, however, I would prefer to express no concluded view about those matters because it is unnecessary to do so to resolve the present case.

118 This much I would say. I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in subs (5). To adopt the words of Chesterman JA in Fardon, an accused cannot have a trial by judge alone "for the asking".

119 On the issue of reasons for a verdict as a factor bearing upon the choice of the mode of trial, I share the view of McKechnie J in TVM expressed in the passage from his judgment quoted at [55] of the reasons of the Chief Judge. The fact that there is now provision in New South Wales for majority verdicts (allowing for only one dissenting juror) does not reduce the force of his Honour's observations.

120 The perceived desirability of reasons for a verdict and the efficiency of the conduct of a criminal trial may well be matters of policy which the Legislature would consider if it were examining whether jury trials should be abolished or modified. However, as the law stands, I can see little or no place for either consideration in determining the appropriate mode of trial, but I would prefer to express no concluded view about the matter.

121 HISLOP J: I too have had the advantage of reading in draft the reasons of McClellan CJ at CL. I agree that the primary judge fell into error in his approach to the application for the reasons identified by the Chief Judge, and I agree with the order proposed.

122 I also appreciate the Chief Judge's examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues. However, I would prefer to express no concluded view about those matters as it is unnecessary to do so to resolve the present case.

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Decision last updated: 09 May 2012