Supreme Court New South Wales

• Medium Neutral Citation: R v Abrahams [2013] NSWSC 729
• Hearing dates: 3 June 2013
• Decision date: 07 June 2013
• Before: Harrison J

Decision

Application for a trial by judge order pursuant to s 132(1) Criminal Procedure Act 1986 is dismissed

• Catchwords: CRIMINAL LAW - application by accused for trial by judge alone - charge of murder - plea of guilty to manslaughter - issue of intent the only substantial issue - significant and widespread pre-trial publicity and Internet activity of a vile, hateful and intemperate nature about the accused - whether fair trial possible - whether trial by judge alone in the interests of justice - natural prejudice arising from nature of case - whether evidence so graphic that no jury could fail to be adversely affected - whether trial judge's directions adequate and sufficient to cure perceived or anticipated prejudice
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Criminal Procedure Act 1986
• Cases Cited: AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438; Arthurs v The State of Western Australia [2007] WASC 182; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414; Long v R [2002] QSC 054; (2002) 128 A Crim R 11; Pambula District Hospital v Herriman (1988) 14 NSWLR 387; R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1; R v Bell (NSWCCA 8 October 1998, unreported); R v Burrell [2004] NSWCCA 185; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Dean [2013] NSWSC 661; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258; R v Milat (NSWCCA 26 February 1998, unreported); R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Sean Lee King [2013] NSWSC 448; R v Stanley [2013] NSWCCA 124
• Category: Procedural and other rulings
• Parties: Regina (Crown); Kristi Anne Abrahams (Accused)
• Representation: Counsel: C Maxwell QC (Crown); J Manuell SC (Accused); Solicitors: Solicitor for Public Prosecutions (Crown); Armstrong Legal (Accused)
• File Number(s): 2011/133212

Judgment

1 HIS HONOUR: The accused is due to stand trial commencing on 17 June 2013 on an indictment charging that she murdered her daughter Kiesha between 10 and 18 July 2010. She was arraigned on that charge on 2 May 2013 and pleaded guilty to manslaughter but not guilty of murder. The Crown has not accepted that plea in satisfaction of the indictment. On 8 May 2013 the accused filed an application pursuant to s 132 of the Criminal Procedure Act 1986 for trial by judge alone. She relies upon affidavits sworn on 8 May and 28 May 2013 by her solicitor. The application is opposed.

2 Section132 is in the following relevant terms:

"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)..."

3 It is convenient and efficient to observe that s 132(4) is the principal provision requiring consideration in the circumstances of the present application. Some attention is also given to s 132(5).

Background

4 The accused and Christopher Weippeart were in a de facto relationship for a period from approximately 2002 until 2005. The accused gave birth to a son on 6 February 2003. He died from sudden infant death syndrome on 23 March 2003 aged six weeks. The deceased was born on 22 April 2004.

5 On 4 July 2005 the deceased was admitted to Mt Druitt Hospital overnight for observation with a bite mark. The accused was subsequently charged with assault upon her and pleaded guilty. She was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for 12 months. The accused and Christopher Weippeart separated after this offence. The deceased went from hospital into the custody of Mr Weippeart and his mother, and then into the care of the Department of Community Services.

6 Following the separation, the accused formed a relationship with Robert Smith in 2006. He was introduced to the deceased during the course of DoCS approved visits. The deceased was returned to the care of the accused on 23 December 2006. Thereafter the accused and Smith lived together with the deceased in a unit at Mt Druitt. Christopher Weippeart had little involvement in raising the deceased. The accused and Smith had two children of their own born respectively on 9 February 2008 and 7 July 2010. The deceased occupied one bedroom of the unit while the accused and Smith shared the other bedroom with their two children.

7 On 1 August 2010 the accused called "000" to report that the deceased was missing from the home. An extensive police operation was undertaken in an attempt to locate her. On 22 April 2011 the accused and Smith were arrested leaving a site in bushland at Shalvey at which the buried remains of the deceased were subsequently discovered. The disappearance of the deceased had attracted considerable media attention and publicity in the meantime. That attention continued after the accused and Smith were arrested and charged, and has in fact continued right up until the present.

8 It is the contention of the accused that the media coverage and publicity, as well as the extensive dissemination of material on the Internet, have been so intense and so pervasive that no prospective juror is likely to have been uninfluenced by it and that any jurors who may be empanelled will be incapable of withstanding the temptation to refer to it. It is inherent in that contention that jury directions from me will not be adequate or sufficient either to prevent impermissible activity by jurors or to eradicate any preconceptions and prejudices that they may already have acquired. The accused is concerned that a fair trial by a jury cannot be achieved in the circumstances.

9 In that setting, the accused articulates in summary the following matters in support of her application. They are as follows:

1. It is likely that a member or members of the jury will have seen, and already formed an adverse view of the accused from, the extensive publicity this matter has received in all forms of the media and particularly the discussion sites on the Internet.

2. The circumstances of the alleged offence (including the burning and burial of the deceased's body) are likely to engender prejudicial feelings of revulsion and antipathy in the members of the jury towards the accused.

3. It is anticipated that the pathology evidence might give rise to emotive responses in lay people, so as to prejudice the ability of jury members to consider the weight of the evidence impartially.

4. It has been publicly revealed that the accused's first-born child died from SIDS and that a police investigation into the circumstances of that child's death was conducted after the death of the deceased.

5. Taking all of these matters into account, the accused does not think that she would be able to get a fair trial with a jury and she wishes to be tried by a judge alone.

The legislative framework

10 Section 132 commenced on 14 January 2011. It was introduced to remove the former veto power held by the prosecution. Under the new provision, if the prosecutor does not agree to an accused's request for a judge alone order, the Court may make the order "if it is in the interests of justice to do so". In his Second Reading Speech, the Attorney-General said this:

"The bill further amends the Criminal Procedure Act 1986 to implement a new system for determining when a trial should proceed before a judge sitting alone without a jury. Section 132 of the Criminal Procedure Act 1986 allows the accused person in criminal proceedings to be tried by a judge alone if the judge is satisfied that the accused has sought legal advice in relation to the election and the Director of Public Prosecutions consents to the making of the election. The Chief Judge of the District Court proposed in late 2009 that the Director of Public Prosecution's veto power be removed from s 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. Judge-alone trials are appropriate in a limited number of circumstances. For example, they may be appropriate where there are concerns that cannot be overcome regarding pre-trial publicity, or where the evidence of the trial is likely to be highly technical.''

11 Prior to the introduction of this legislation, if the prosecutor did not agree to the making of a judge alone order, an accused's only recourse was to apply for a permanent stay of the proceedings. This was rarely successful because the courts tended to be of the view that the prosecution's decision not to agree to an order being made was a matter of prosecutorial discretion with which the courts should not interfere. In R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 at [16], Spigelman CJ said:

"[16] This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell. (See Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D 'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)"

12 These authorities are now of limited assistance in the light of the particular terms of the new provisions.

13 The effect of the new provisions was considered at length by McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1. In that case, the Crown appealed against the decision of Solomon DCJ to grant a trial by judge order as a result of the possible prejudice flowing to the accused because he was Muslim, he was charged with an assault on a female family member and because the Crown asserted that he acted as he did because he held "antiquated" views about women. In allowing the Crown appeal, the Chief Judge considered the effect of the words "in the interests of justice" in the context of an application for a trial by judge order. His Honour referred to the decision in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, where the issue had been considered in respect of civil trials. The effect of the decision in Pambula Hospital was that, before a jury should be dispensed with in a civil trial, it was "necessary to show grounds which are particular to the case in hand." His Honour was of the opinion that the legislation did not create a presumption in favour of a trial by jury. His Honour said the following at [96]:

"[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."

14 In agreeing with the orders proposed by his Honour, Hidden J in Belghar commented as follows at [118]:

"[118] 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'."

15 There have been several other cases since Belghar both in New South Wales and elsewhere. These are referred to in some detail later in these reasons. It is important in advance of that, however, to consider at least some of the material to which the accused has directed attention and with respect to which she has raised her current concerns. The existence of this material, and its ready accessibility to members of the public both now and in the past, is not in dispute.

The offending material - some examples

16 The following material became part of the evidence before me in this application. It forms part of the several annexures to the first affidavit of the accused's solicitor.

17 Annexures "A", "B" and "C" to the affidavit contain newspaper articles and photographs from the www.news.com.au website. From this material, it is apparent that many articles about this matter have been published in hard copy in at least The Australian, The Daily Telegraph, The Sunday Telegraph, The Advertiser, The Sunday Mail, The Messenger, The Herald-Sun, Perth Now and The Courier Mail. These articles have been published between the time of the deceased's disappearance in August 2010 and May 2013. The same articles have appeared electronically on the www.news.com.au website. There are also 144 photographs posted on the www.news.com.au "Galleries" link.

18 Annexure "D" to the affidavit contains 96 newspaper articles published in hard copy in The Sydney Morning Herald (and other newspapers published by Fairfax Ltd). These are all available on the Internet. Annexures "E" and "F" to the affidavit contain articles, or news and radio items, from the ABC News website.

19 Annexure "G" to the affidavit contains the following:

1. A printout of the Facebook "RIP Kiesha Abrahams" site. As at 2 May 2013, there were 38,349 "Likes" and 90 people were "talking about this" [at that time on the Facebook site]. One subscriber, Marion Downing, responded to news that the accused had pleaded guilty to manslaughter on 2 May 2013 by saying, "She was trying to get herself a reduced sentence by admitting to manslaughter rather than being found guilty of murder. She continues to be self-serving."

2. A printout of the Facebook "Help Find Kiesha Abraham [sic] Organisation" site. As at 2 May 2013, it had 753 "Likes" and one person was "talking about this" [at that time on the Facebook site].

3. A printout of the Facebook "Where is Kiesha Abrahams?" site. As at 2 May 2013, it had 401 "Likes".

20 Annexure "H" to the affidavit contains a printout from the You Tube web site. Under the search for "Kristi Abrahams" there are 68 results. The first two pages of those results are annexed. The videos on those two pages of results have had over 60,000 "views".

21 Annexure "I" of the affidavit contains hundreds of comments posted on You Tube by subscribers who had viewed the videos posted. These comments include the following:

In response to an earlier post suggesting moderation, Aussie Land - "YOUR [sic] A COMPLETE IDIOT, THE FACTS ARE THERE IN BLACK AND WHITE THERE LIEING TRASH, THEY HAD AT LEAST 40 CHILD PROTECTIVE SERVICES COMPLAINTS ON ABUSE AGAINST THEM

'I prefer to have facts first before making any rash judgements'

GLAD ITS NOT YOU MAKING ANY SORT OF RATIONAL JUDGEMENT WILL ALL BE FUCKED!"

gmjuve - "Fucking filthy, lying, murdering bogan Mt Druitt scum. I hope you're both getting yours in jail for the rest of your life. Look at these two gutless pigs... lying and crying crocodile tears for the cameras. Vermin. RIP Kiesha"

sabee66 - "This bitch should be in the prison with all the rapist and murderers so they will teach her a lesson, fuckn cunts, should rott in the hell and him too with an iron bar in his ass full of spices"

bigGazal - "So much publicity will guarantee these scumbags safety in prison. It sux.

I am tired of the law protecting scum from real justice. This society protects the perpetrators full stop. Prison is not justice for these shits, its sanctuary. 36 complaints to DOCS/DOHS? when will our government fund what really matters instead of taxing us into poverty?"

pplofu - "Hope you get a broom shoved up your vagina in MULAWA you rotten mole!!!!

Perhaps when the splinters get picked out of your vagina cavity you will remember when you gave birth and how you took your child's life.

Burn IN Hell EVIL BITCH"

johnderek - "i have seen so many lying and ugly bitches acting it out, in front of judges even. i could just spit on such vermin"

71candygirl - "They should bring back the death penalty Kill the parents just the way they killed little Kiesha Come on Australia bring the death penalty back"

22 Annexure "J" to the affidavit contains a print-out of the first pages of a Google search dated 2 May 2013, summarised as follows:

1. With the search criteria "kristi Abrahams", there were about 174,000 results obtained in 0.24 seconds. As at 26 May 2013 there were 208,000 results obtained in 0.14 seconds.

2. With the search criteria "kiesha abrahams", there were about 62,300 results obtained in 0.25 seconds. As at 26 May 2013 there were about 88,000 obtained in 0.12 seconds.

3. With the search criteria "kiesha weippeart", there were about 5,690 results obtained in 0.2 seconds. As at 26 May 2013 there were about 40,100 results in 0.09 seconds.

(The updated figures are contained in the accused's solicitor's second affidavit).

23 Annexure "K" to the affidavit is a printout from the "Aussie Criminals and Crooks" website, containing posts from "Robbo". That particular contributor offers various opinions, including:

"The mother and stepfather charged with murdering Kiesha have said they want to leave jail to attend her funeral. How bloody dare they, they would not make it back alive. Do they realise how despised they are? Do they accept the position they are in? The evidence is overwhelming. These maggots need to die in jail, not leave it. For nothing, anytime, anywhere anyhow unless it is in a coffin!"

24 Annexure "L" to the affidavit is a printout from the "Child Abuse Pages - Kiesha Weippeart (Abrahams)" pages of the "ANGELIZD's Place" website. The pages contain multiple images of angels and love hearts, and photographs of the deceased, the bush site where her remains were found, memorials to her, her funeral and a photograph of her brother's headstone.

25 Annexure "M" is a printout from the "Bad Breeders" website. There is a photograph of the accused with the caption, "Kristi Abrahams is a foul cock-gobbler and a murderer". On the same page is a photograph of Robert Smith with the caption, "Robert Smith is a piece of shit child-killer". On the following page is a photograph of both the accused and Smith, with the caption, "Maggots crawling through dog shit. Both should be infected with choler"'. The website contains the following statement:

"The cunt-plug [Smith] was arrested that same month and charged with manslaughter and gross negligence in December 2011. His dickwarmer and Kiesha's incubator [the accused] was arrested and charged with manslaughter and being an accessory after the fact, as she knew her dildo had neglected Kiesha and knew damn well what had happened to her and where she was, but lied to the authorities to protect her toy penis. During her trial she chatted happily with her bedwarmer and had her neck tattoos clearly visible. This isn't a woman mourning the death of her child, this is a trampy bitch who couldn't give two shits about her child dying and who cares more about her pet penis! Both of them should be eaten by dingoes!"

26 Annexure "N" to the affidavit contains a printout from the annamaria.com.blog.spot website. It is a brief and basically accurate summary of newspaper reports.

27 Annexure "O" to the affidavit contains a 42 page printout from "The McCann Files" website (so named for the missing British child Madeleine McCann). It contains a collection of newspaper articles from 1 August 2010 to 24 April 2011, shortly after the arrests of the accused and Smith. The last article stated:

"Grim details of little Kiesha Abrahams' life in the care of her mother and stepfather have emerged following the discovery of her remains in bushland. Detectives are expected to include in their brief of evidence witness statements alleging that Kiesha was the subject of harsh, brutal discipline and was sometimes 'flogged'.

At other times, she was allegedly forced to put her hands on her head and stand in the comer of a room for hours. Police records show the Abrahams family had 36 complaints lodged with the police. No charges were laid."

28 Annexure "P" to the affidavit contains a 20-page printout from the "Psychic Tarot Insights: Kiesha Abrahams" page of the empathysinsights.blog.spot. It includes posts of tarot readings of the deceased's disappearance and possible whereabouts, including comments as to psychic "sightings" of her.

29 Annexure "Q" to the affidavit contains a 48-page printout from the blog.eyesforlies.com website. On the website, posts have been made by "Eyes". One such post is as follows:

"News outlets are reporting that police in Sydney are looking to find the source of six cash payments of $500 and $600 made to Kristi Abrahams and Robert Smith in the weeks leading up to Kiesha's disappearance. This is an interesting twist in the case. If the news stories are true, everyone will be questioning if Kiesha's mum and step-dad sold their daughter in exchange for money. Could she have been sold into the sex trade? It's horrible to think about."

30 Contributors have posted over 170 comments in response to posts by "Eyes", including comments such as the following:

CarlyQ - "Apparently it's been reported that before Kiesha there was a brother, Aiden, who died when he was six weeks old. The police are looking into that death again. This does not bode well for little Kiesha at all."

cate - "so sad this whole story.who many more stories of abused kids do we have to read? off topic- the number of abuse/neglect incidents towards young children has skyrocketed in oz since the baby bonus 'free money for babies' benefits were introduced.the government should not give bonuses to women/girls on welfare, their on welfare for a reason-duh!cos they cant look after themselves responsibly, also it has bn documented that unstable women have been pressured into getting pregnant by their bogan boyfriends to the $5000+ bonuses.its easier than getting a loan from a bank for them.the resulting kids often end up in foster care.shame on our p.c government for not limiting the bonus to non-welfare women, it's a social disaster..."

kate - "I couldn't watch it [a video posted on the site] all the way through because this woman makes me sick to the stomach. What an expletive."

31 Annexure "R" to the affidavit contains a 37 page printout of the 'Robert Smith and Kristi Abrahams' page of the "People You'll See in Hell" website. Posts include:

"Kiesha also had a brother Ayden born in 2003 but who died a few weeks after his birth. Mr Weippeart wanted the files from Ayden's death reopened but a coroner ruled the child died of SIDS so the file will not be reopened...

As for the sad excuse for a mother and her live-in penis, neither Abrahams nor Smith chose to appear in court or via a video link....

On April 24th Kristi Abrahams appeared in Penrith District court via video link claiming to be distressed by the situation which attracted an outraged crowd in support of the innocent little girl who was robbed of a future. I hope she enjoys prison; then again the outrage in the community the bitch is probably safer behind bars... This case left a mark on me.

I remember when Kiesha first went missing, seeing an innocent beautiful little girl missing from a suburb not far from mine, watching her mother plead for information.

Now we know that she knew where her little girl was and that she wasn't coming back. The fact that this vile creature took part in stuffing her own daughter into a suitcase and burying her in a shallow grave, even though the little girl was her own flesh and blood, makes me furious.

HOW DARE SHE? WHY SHOW ANY REMORSE OR GUILT AFTER SO LONG? Was that bitch so damn stupid it took 9 months for her to feel some kind of guilt or remorse? Seriously... WTF was through that bitches mind? IT'S TOO LITTLE TOO DAMN LATE!!!

I really wish the two sad excuses for humans decide to open up and admit to what they did so Kiesha's family can get some closure. Luckily our legal system here in NSW Australia is pretty good, we don't have the death penalty but they will probably get life in prison with a chance of parole in 25 years... hopefully they get a nice little note on their file saying never to be released.

But I'd personally prefer if they were both be stuffed in suitcases and buried alive to burn in hell for all eternity.

RIP little Kiesha, I hope you know how many people love you.

Do Robert Smith and Kristi Abrahams Deserve Hell?

Yes (97%, 684 Votes)

No (3%, 20 Votes)."

John - "Three words. Burn in Hell. What scum, leaving dirty marks on the history of the human race. Scratch that, they have no right to call themselves human. I am not a member of the same species as them, and I'm sure none of you want to either."

In response to a post from Rubadubadoobag, who expressed the opinion that Kiesha's death might have been "a tragic accident rather than a sadistic or wilful murder" (at p.796), aus57 wrote - "I disagree with what your saying Rubadubadoobag. When someone murders a child they automatically get a free pass to hell. With this situation it might have been an 'accident' [i highly doubt it] but they decided to lie and pretend like they were really distressed to the police, media and the public when all along they knew what had happened. I don't believe this is manslaughter. They lied and lied when they had so many chances to come clean, they hid her body in a suitcase and then set that alight to cover their tracks. They should go to prison for a really long time even just for the fact that they didn't give Kiesha the proper burial she deserved. A fist should never be raised to anyone let alone a child. They are the most defensless people in the world. They deserve love and attention."

Derek Prudence- "... Note, they are *both* charged with murder. We do not have the concept of 'counts' over here, so it is just one 'count', and it attracts life imprisonment. They were both party to (a) several beatings (b) ongoing maltreatment (c) severe punishment... which culminated in her death. Then there is the mother biting her so badly that she was hospitalised. All evidenced. So they should have no problem establishing intent (same as the link above). Now whether the specific event was *intended* to kill her, or the death unintended and a result of a bad beating, does not matter in the context of all the evidence provide. There are also issues with neglect, failing to provide protection for a child, which we will see added as the case progresses, but it doesn't matter right now. One way or the other, they are both responsible for dealing with a child criminally over a long period. Even it is proved that one did the killing, and the other stood by, and assisted with the disposition of the corpse, that other will end up getting 20 years instead of 25..."

Derek Prudence- "The police (not Weippeart) opened a new investigation into the death of the second child. It is not the coroners business, it is the polices (that SIDS death was not suspicious at the time so there was no inquest or autopsy). Our police are worthy of our trust. It does look like she murdered both of them, so that the 'new' family is exclusively Smith's. Kiesha was hospitalised for a very severe bite when she was little, and her mother was charged with assault. As I understand it, that was before the live-in bed-warmer came into the picture. This biting of children seems to be a thing that is very common with child murderers, at least from the stories on PYSIH. Infantile narcissists, all of them.

During the nine months, their were several opportunities for the mother to show she cared, in interviews and the like, and she came across as a narcissistic bitch every time. It was always about her, not the 'missing' child. Which of course galvanised the community and the police."

citysoup - "Kiesha's bio dad is dead... police wouldn't say much about his cause of death other than it was not suspicious. He was only 29 and IMO [in my opinion] he is yet another victim of these two scum bags. Robert Smith pleaded guilty last year and I can't seem to find an update on his sentence.

Kristi Abrahams...the incubator is due to stand trial June 17th 2013"

vcbecky -"... We're emotional here, the style of writing is emotional, but never does PYSIH [the People You'll See in Hell website] post deliberate lies. The stories are, to the best of the authors and editors research, accurate as to facts, circumstance, etc. The editor will correct an article and apologize if an error about a fact is proved. He's a person of great integrity is Max the Cat."

Submissions

32 The accused has expressed a desire to be tried by judge alone. She is of the opinion that her trial would be prejudiced if she were to be tried by a jury. Her opinion is one of the considerations to be taken into account in determining whether a "trial by judge" order should be made: R v Belghar at [99], [105] - [106]); Arthurs v The State of Western Australia [2007] WASC 182 at [79] - [80].

33 The accused has also submitted that it is likely that a member or members of the jury will have seen, and already formed an adverse view of the accused from, the extensive publicity this matter has received in all forms of the media and particularly the discussion sites on the Internet. The evidence relating to the number and nature of the Internet hits in respect of the accused and the death of the deceased is too voluminous to summarise. However, it is apparent from the samples of this material that the discussions on the Internet have a number of different (but all prejudicial) themes relating to the accused. They appear to be, or at least to include, the following:

1. The accused is guilty of murder.

2. The accused pleaded guilty to manslaughter only to get a reduced sentence.

3. Any distress the accused showed in response to the deceased's disappearance and death was self-serving.

4. The accused's character is evil.

5. The accused should receive the death penalty or she should be killed in gaol.

6. The accused subjected the deceased to a lifetime of abuse.

7. The accused sold the deceased for sexual services and in return received a number of payments of $500 and $600.

8. There were at least 40 complaints to the police about the accused's treatment of her children.

9. The police now think the accused's son did not die from SIDS and that the accused had most likely killed him as well.

10. The accused killed both of her children born of her relationship with Chris Weippeart because she only wanted the children born of Robert Smith.

11. The accused indirectly caused the death of Chris Weippeart.

34 Many of the discussion sites describe the accused in highly derogatory language. They also include vile and obscene references to her that are potentially if not actually inflammatory.

35 A perusal of the Internet and the websites establishes that there have been hundreds of thousands of items published about the deceased, the accused and Robert Smith. There have also been many thousands of hits on this material and comments made. It is apparent that these hits are not of purely historical interest, in the sense that they were confined to milestones such as the days after the deceased's so-called disappearance, the finding of her body or the charging of the accused and Robert Smith. The number of hits on the search criteria "kristi Abrahams", "kiesha Abrahams" and "kiesha weippeart" has increased very significantly in the 24 days from 2 May 2013 to 26 May 2013. The number of hits on the search criteria "kiesha weippeart" has increased by about 700 percent in just 24 days. The accused contends that one possible explanation for this is that the deceased, who was previously known publicly as Kiesha Abrahams, was named on the accused's indictment as Kiesha Weippeart. This is in the context of media reports of the accused being re-arraigned on 2 May 2013 and Smith being sentenced on 3 May 2013.

36 The greatly increased number of hits suggests that there is a very sizeable part of the community that is currently following the publicity surrounding the accused's trial, and that many thousands of people are following this publicity on the Internet. This material is still readily accessible to any potential juror with access to the Internet. Given the volume of the material, and the number of different websites involved, the accused contends that it is not reasonably possible for this Court to order that the material be removed. In any event, potential jurors are likely to have already seen or to have heard about some of it at least.

37 Although any jury would be given a direction as to improper use of the Internet in the context of this trial, the accused submitted that with the very considerable publicity the matter has already received, it is entirely foreseeable that at least one member of the jury might search the Internet looking for references to the accused and the offence contrary to that direction or in spite of it.

38 It therefore becomes correspondingly impossible for the accused properly to exercise her right to challenge potential jurors when there is no mechanism to ascertain whether they might actually have accessed any of the websites containing derogatory material about her, or whether they really do hold an adverse opinion about her. Although the panel of potential jurors will be asked to consider whether there is any reason why they might not bring an impartial mind to their deliberations, it is not difficult to see that a person on the panel might have his or her own reasons for not disclosing a prejudice against the accused.

39 Many of the comments posted on the Internet are based on nothing more than unfounded rumour or innuendo. It is anticipated that in the course of its deliberations, the jury would be asked to draw inferences as to the accused's behaviour towards the deceased. The jury should fairly draw those inferences only from the evidence at the trial. In light of the sheer volume of adverse public comment in this case, it is likely to be exceedingly difficult for a lay juror completely to ignore his or her own preconceptions of the accused's guilt and/or the nature of Internet comments they might have seen when considering the inferences that could fairly be drawn.

40 The accused submitted that the circumstances of the alleged offence, including evidence as to the burning and burial of the deceased's body, are likely to engender prejudicial feelings of revulsion and antipathy towards her in the members of a jury. The comments posted on the Internet about the circumstances of the alleged offence attest to the very intense and resoundingly negative reaction to the accused that has already been engendered in the community. These comments are found in the evidence. The number, nature and consistent tone of these comments demonstrate the extent to which a large part of the community already harbours and is prepared to express hateful and prejudicial feelings of revulsion and antipathy towards the accused.

41 It is also anticipated that the pathology evidence might give rise to emotive responses in laypeople, so as to prejudice the ability of jury members impartially to consider the weight of the evidence. It is anticipated that pathology evidence relating to the deceased's remains will be explored at the trial. It is the Crown's case that one or more of the deceased's teeth were probably broken during the course of the act that caused her death, so at the hands of the accused, and that she probably inflicted previous bone fractures on the deceased, which were at various stages of healing at the time of her death.

42 Examination and cross-examination in respect of these alleged injuries would necessarily involve the examination of post-mortem photographs of the deceased's skeletal remains. The Crown concedes so much. Some of the photographs of the bones show evidence of burning. These photographs are likely to induce a strong emotional reaction in the viewer, particularly in a layperson not accustomed to seeing depictions of what occurs during an autopsy, and particularly in the context of the other Crown evidence of the deceased's appearance prior to her death.

43 It has been publicly revealed that the accused's first-born child died from SIDS and that a police investigation into the circumstances of that child's death was conducted after the death of the deceased. Publicity concerning SIDS deaths has been abroad in the media for some considerable time. The accused contends that they are sometimes regarded with suspicion, perhaps because it is not possible by definition to identify an organic cause of death in such cases.

44 After the deceased was reported missing and before her body was found, articles were published in the main daily newspapers to the effect that the accused and Christopher Weippeart had a son, who died from SIDS at the age of six weeks. It was reported that the police had learned of his death during their investigation into the deceased's disappearance and had asked the Coroner to reopen the investigation into that child's death. The clear inference was that the police suspected the accused of also killing her son.

45 The way in which this death has been discussed on Internet discussion sites and linked to the deceased's death is referred to in the evidence. Evidence as to his death would be inadmissible at the trial. There is no evidence that he died from anything other than SIDS. There is no evidence whatsoever of any causal link between his death and that of the deceased. The Crown quite obviously does not rely on tendency evidence in this regard.

46 There have been reports in the mainstream media of the recent police investigation into this boy's death. Any knowledge held by a juror concerning that investigation would be likely to prejudice the accused's right to a fair trial. The unfair inference is likely to be drawn that the accused killed both of her children. There is no effective means for the accused or the Court to determine whether potential jurors are aware of this death or, if they are, what effect that might have on their ability to consider all of the evidence at the trial with an open mind.

47 There is also a reference in s 132(5) of the Act to "objective community standards". The accused has entered a plea of guilty to manslaughter on the dual bases that she committed an unlawful and dangerous act and that she failed to provide proper medical care to the deceased. Although the Crown rejected her guilty plea, it has served substantially to narrow the contested issues. It is anticipated that the accused's subjective intention at the time she committed the act of violence against the deceased and her failure to provide proper medical care will be the central issues at trial. The accused's subjective intention is not "a factual issue that requires the application of objective community standards". She has admitted by her manslaughter plea that what she did was wrong in the terms of "objective community standards". Essentially, the only question remaining for determination is, "What was the accused thinking when she did these things?"

48 The accused finally sought to place considerable emphasis upon the decision in Arthurs. The Crown has indicated that it will rely on the decision in R v Sean Lee King [2013] NSWSC 448. In that matter, one of the accused's grounds for his application of a trial by judge order was that pre-trial media coverage and online discussion that was widely available contained information that would be inadmissible at trial and/or might prejudice the trial. In support of this ground, King's solicitor produced links to a total of ten articles published on the Internet, of which five related to the charge against the accused. The accused in this case contended that the evidentiary basis of her application is quite unlike that in R v King.

49 Conceding that each application for a trial by judge order must be considered on its own facts, the accused sought to draw upon the similarity between her application and that considered in Arthurs. That case was considered and adopted by McClellan CJ at CL in R v Belghar. The Western Australian provisions relating to applications for judge alone trials are relevantly similar to those in this State.

50 Arthurs involved the sexual assault and killing of an 8-year-old girl in a shopping centre toilet on 26 June 2006. The accused was a 21-year-old male. He made an application for a trial by judge alone because of the extensive publicity and negative Internet activity the matter attracted pre-trial. The prosecution did not agree to the making of the order. In granting King's application, Martin CJ said:

"[38] As I have mentioned, the solicitor's affidavit refers in very general terms to the proposition that the circumstances of the offence are likely to engender feelings of revulsion and antipathy towards Mr Arthurs. I have reviewed the details of the alleged offence in the prosecution brief and of the evidence that might be led at trial. It is neither necessary nor appropriate for me to detail the circumstances which would be revealed by the evidence at this point in the proceedings, except to note 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.

...

[85]... There are, however, a number of factors which appear to me to support the proposition that a trial by Judge without jury is, in the circumstances of this case, in the interests of justice.

[86] Turning first to the pre-trial publicity, as I have mentioned, it is fair to categorise that publicity as extensive, continuous and in some respects extraordinary. Those extraordinary aspects include, perhaps most significantly, the continuing assertions of an extraordinary character made against Mr Arthurs from a variety of sources on the Internet and the television broadcast which has arguably prejudiced Mr Arthurs' ability to obtain a fair trial by jury.

[87] There are of course many cases dealing with the extent to which prejudice that might be occasioned by pre-trial publicity can be ameliorated by an appropriate warning and direction to the jury, and it is standard practice in Western Australia to direct juries that they should not make any access to the Internet to conduct any of their own inquiries in relation to any aspect of the case before them. However, there is, I think, room for doubt as to the efficacy of these processes, particularly in cases which have achieved the notoriety of this case. So in my opinion there is some weight in the proposition that there is a prospect that the fairness of Mr Arthurs' trial might be prejudiced by the extensive publicity to which I have referred if he is tried by a jury.

[88] The second factor which I take into account is the possible effect which the evidence as to the circumstances of the offence might have upon a jury. As I mentioned earlier, it is, I think, neither necessary nor appropriate for me to detail those circumstances other than to observe that the evidence is likely to test the emotional strength and fortitude of any person required to consider it in detail, whether juror or Judge.

[89] Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict. That consideration seems to me to lend weighty support in this case to the proposition that trial by Judge without jury is in the interests of justice.

[90] A third factor which I take into account is allied to the second in that it draws upon the significance of the obligation to provide reasons in the event of a trial by Judge without jury. While it could not be said that the complexity and length of this trial is such that it would be burdensome on a jury, there are more than 70 prosecution witnesses named on the indictment, although we do not yet know how many of those witnesses are to be called. The latest estimate as to the length of trial I have received is one of ten days.

[91] I am, however, told by defence counsel that there are likely to be issues requiring the detailed evaluation of expert evidence, including expert pathological and psychiatric evidence. I accept though that it is difficult to be certain as to precisely the extent of that evidence at this stage.

[92] I do not for one moment suggest that those are issues which are beyond the capacity of a jury and although this is not a factor upon which I would place considerable weight, from my review of the prosecution brief there do appear to be aspects of this case in respect of which the delivery of reasoned decisions for judgment would be in the interests of justice.

[93] Bringing all these considerations together, starting from a position of neutrality as to the mode of trial to be adopted, it does not seem to me that in the particular circumstances of this case there are any particular factors which would support trial by jury. On the other hand, there are in my opinion three factors which support the conclusion that it is in the interests of justice for Mr Arthurs to be tried by a Judge without a jury, and I so direct."

51 The accused submitted that in all of these circumstances it was in the interests of justice for a trial by judge order to be made. She submitted in summary that her concerns about pre-trial publicity could not otherwise appropriately be overcome.

Consideration

Pre-trial publicity

52 The uncontested evidence in this case shows that the events giving rise to the charges against the accused and Robert Smith have attracted considerable publicity. That has not been limited to the traditional news media outlets but has also extended to electronic publicity in the form of Internet posts and on-line exchanges. These questionable sources of (so-called) information thrive in circumstances and at a time in our development in which everybody must be taken to have unlimited access to them. They survive beyond the range of any appropriate regulation or monitoring capable of ensuring either their accuracy or their reliability. Their authors remain anonymous and unaccountable: their motives are unknown and often manifestly mischievous or malevolent. Regrettably in very many instances the ability of the authors of these questionable publications to express rational views about anything at all cannot be known or assessed and certainly cannot ever be assumed. The material referred to already in this case only serves to confirm and reinforce these concerns.

53 Mainstream media outlets have traditionally taken an interest in criminal trials. They attract publicity and they receive it. It is often difficult to determine whether or not it is only sensational cases that are reported or whether it is only the reported cases that become sensational. I make that observation in the context that very little, if anything, that falls for consideration by courts and juries in the criminal justice system is novel, surprising or unique. Each case may be different in detail but few cases ever break entirely new ground.

54 An appreciation of these matters is of importance in the present case. The accused is concerned that so much uncensored and inaccurate material has escaped into the public domain that she cannot be guaranteed a fair trial unless at least a trial by judge order is made. It is inherent in this proposition that it will not be possible to craft directions for jurors that will be adequate to eradicate or neutralise the possible but unknown consequences that might flow for the accused if any of this extraneous material is factored consciously or even unconsciously into their final decisions.

55 McHugh J referred to this in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425 as follows:

"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong'."

56 Ms Manuell SC for the accused cautions against placing any reliance upon these or similar remarks as they were made in a different factual and legislative context. Although I accept the accuracy of that submission, it seems to me that the applicability of his Honour's remarks is not accordingly constrained. The theory and practice must be that for as long as juries remain as part of the criminal justice system, their utility and reliability in general terms must be taken as given. Although some overseas jurisdictions take a somewhat different approach, there is no way of ever knowing whether or not a judge's directions have been followed by any or all jurors in a particular case, or even whether they have been understood. It follows as a matter of policy if not logic that, subject to rights of appeal, directions to juries by judges are taken to be adequate and sufficient to guide jurors to determine issues of fact in accordance with their oaths and according to law.

57 The Crown has submitted that any prejudice arising from the existence of the material referred to by the accused can and would be cured by judicial warning. It is inherent in that submission that some prejudice will or may flow from the existence of this material at large in the community in the ways that the accused has emphasised. Indeed, the Crown accepted in terms that some of the material was both damaging and unjustified. However, the Crown relies upon a line of authority, all predating s 132 of the Act, in support of its contention that any consequent prejudice can and should be cured by judicial direction: see, for example, Gilbert at 425; R v Milat (NSWCCA 26 February 1998, unreported); R v Bell (NSWCCA 8 October1998, unreported); Long v R [2002] QSC 054; (2002) 128 A Crim R 11; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185; R v Jamal.

58 These issues and the need constantly to monitor and refine directions that have traditionally been given to juries in such circumstances were helpfully referred to by Bellew J in R v King at [56] - [61] as follows:

"[56] The potential impact, upon a criminal trial, of articles published on the Internet has been the subject of judicial observation. In R v K (2003) 59 NSWLR 431 Wood CJ at CL said (at 448; [80]-[82]):

'The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology.

It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve.

It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the Courts to place effective restrictions on the publication of their own proceedings is severely limited...'

[57] Subsequently, in a paper entitled 'The Internet and the right to a fair trial' (2005) 29 Crim LJ 331 Spigelman CJ observed:

'The right to a fair trial is protected by numerous specific practices and rules that have developed over the course of centuries of practical experience involving adaptation to changing circumstances in accordance with the classic common law process. The internet is only the most recent technological challenge requiring a new course of pragmatic adaptation of our procedures.'

[58] Although, as Wood CJ at CL observed, the powers of the court to limit the availability of material published on the internet are minimal, some practices have been adopted which form part of the 'course of pragmatic adaptation' of the court's procedures to which Spigelman CJ referred. One is the practice of trial judges, at the commencement of any trial, to direct the jury that they are prohibited from undertaking any research, or making any enquiry, through the internet, in relation to any aspect of the trial, be it the identity of the accused, the identity of any person named in the course of the evidence, or a variety of other matters. In this regard Spigelman CJ said (at 334):

'Model instructions for the jury have long contained references to the jury not to conduct their own research. Many of them now contain express references to searching the internet as well as refraining from using other reference material such as dictionaries.'

[59] Needless to say, directions in these terms will be given to the jury at the commencement of the accused's trial.

[60] Further, and in light of the submission as to the publication, on the internet, of the fact that the accused was on bail for offences of violence at the material time, it is also relevant to note that in K (supra) Wood CJ at CL observed (at 446) that there have been instances in the past in which the fact that a jury member had knowledge of past convictions, or of alleged criminal behaviour on the part of an accused person, had not been regarded as being sufficient to establish bias (see R v Booth; R v Box [1964] 1 QB 430; R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56).

[61] Moreover, the Parliament has seen fit to enact s 68C of the Jury Act 1977 which renders it an offence for any juror to make an enquiry for the purpose of obtaining any information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions. A reference to the provisions of 68C will necessarily be incorporated in the directions to which I have referred which will be given to the jury at the commencement of the accused's trial. Such directions will also include a direction concerning the obligation of all members of the jury to decide the case solely on the evidence. All of these directions will be repeated at appropriate stages in the course of the trial, as well as in the summing up."

59 Perhaps one of the clearest statements of support for the integrity of juries that have been assailed by a barrage of offensive material leading up to the trial is to be found in observations made by Mason CJ and Toohey J in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603:

"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (1987) 164 CLR, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v The Queen, we stated (16) [1989] HCA 28; (1989) 167 CLR 94, at p 99; see also Reg v Von Einem (1990) 55 SASR 199, at p 211:

'But it is misleading to think that, because a juror has

heard something of the circumstances giving rise to the

trial, the accused has lost the opportunity of an

indifferent jury. The matter was put this way by the

Ontario Court of Appeal in Reg v Hubbert (1975) 29 CCC (2d) 279, at p 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.''

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge."

60 Statements such as these are both authoritative and persuasive.

61 A further matter of relevance in this case appears to me to flow from the particular nature of the material to which the accused understandably takes objection. It will be apparent that much of what appears on the Internet is so extreme and so vile that on one available view it says more about those who are responsible for the material than it does about the accused. The system within which we operate places great store in the intelligence and the common sense of jurors and in the importance of their individual and collective wisdom. No proper direction to a jury could ever be expected to draw attention to the particular articles and opinions that have been disseminated about the accused. However, general directions to juries that they must disregard anything and everything that they might have read or heard could permissibly be cast in terms that unequivocally and unambiguously denounced such material as dangerous and inflammatory. In the circumstances of this particular case, there is considerable scope for the parties' assistance and input into the width and content of any such directions. That is important because too much emphasis upon the nature of the material could create a curiosity that the direction is intended to discourage. I consider that appropriate directions can be crafted to accommodate the accused's concerns, appealing directly to the jury's assumed common sense and experience of life.

62 It will be apparent that I do not consider that it is in the interests of justice to make an order for a judge alone trial upon the basis of the potential for prejudice that exists as the result of pre-trial publicity or the potential for intra-trial access by jurors to such material. The interests of justice are not limited to alleviating the concerns of the accused. The interests of justice in the wider sense encompass, particularly in this case, the need to recognise the robustness of the system of trial by jury and its ability to withstand even the most irrational and suspect musings of faceless people intent on mischief.

63 The Crown contended that the interests of justice permitted me to examine whether or not the accused contributed to the nature and the extent of media coverage that developed. I need to make it clear that for my part I do not accept that the extent to which the accused may herself have contributed to the publicity and attention that her case has attracted is a relevant factor to be taken into account in assessing whether pre-trial publicity has diminished or eliminated the prospect of her receiving a fair trial. That argument was developed by the Crown in the following way.

64 The accused initially claimed that the deceased had disappeared from her home. That became a news story all of its own and attracted considerable media attention. Much has been written about the accused's distraught and emotional presentation in front of television cameras when this story broke. Her public appeals for the return of her daughter were given wide coverage in electronic and print media. The accused's initial false report to the police resulted in an extensive police investigation that included the involvement of volunteer members of the public in search of the deceased. There was an understandable public backlash when this presentation was eventually found to be false and the accused has endured the product of public disaffirmation of her duplicity ever since.

65 Whatever may be said about this conduct on the part of the accused, which the Crown wishes to characterise as false and misleading, it does not in my view reliably inform the question of whether or not it is in the interests of justice to proceed to a trial by judge alone. If it were otherwise the current inquiry would invite an examination of the truthfulness and reliability of everything that has been published or shown concerning the accused that she is fearful will poison any potential jury. That cannot have been intended. The preferable and only manageable approach is to treat all extra-curial publicity in the same way, whether true or false, and whatever may have been its cause or its source. It is inherent in the accused's application that she is harmed as much by lies as she is by truth. There is no benefit to be achieved in seeking out the difference. There is correspondingly no benefit to be achieved by ascribing blame for the publicity that is now a sad and irremediable fact of life in this case.

The potentially distressing nature of particular evidence

66 In my opinion the matters raised by the accused can be easily dealt with in ways that do not produce an injustice to the accused and without the risk of an unfair trial. These days perhaps more than at any time in the past, members of the public are subjected to distressing images and depictions of death and injury to all manner of individuals in domestic settings and as the result of military conflicts. The Internet is, quite apart from the subject matter of this case, replete with troubling and disturbing material. Although it is important not to burden or overburden jurors with distressing material, including photographs of autopsies or mistreated corpses, especially of children, I think it is a mistake to underestimate the capacity of modern adults to deal with such images. It has to be borne in mind that courts have always had to take account of the line between substantial probative value and potential prejudicial effect. That includes the need to filter all but the most salient and relevant aspects of otherwise troubling evidence.

67 As blunt as it may sound, the accused faces serious charges. The events that give rise to the charges involve a series of disturbing allegations. The accused has admitted that she caused the death of the deceased and that she was concerned in the disposal of her body. On one view that series of admissions may, and probably will, foreclose the need to examine material that might otherwise have been important. I specifically enquired of the Crown whether potentially disturbing material could be excluded altogether. His indication, which I do not criticise, was that it could not.

68 There will be a need in this case for the jury panel in waiting to be warned that the case may involve disturbing material that ultimately selected jurors will inevitably have to examine. Once again, the traditional methods of offering potential jurors the opportunity to raise any particular concerns that they may have at an early stage, in aid of a request to be excused from duty, will be adopted in this case. There have been many disturbing murder trials in this jurisdiction and elsewhere but that is unfortunately the nature of the process. If an objection is ultimately to be taken to the tender of specific evidence at the trial, upon the basis that its potential effect upon the jury adverse to the interests of the accused is disproportionate to its value as evidence proving or tending to prove a fact in issue, it can be dealt with on a case by case basis at the time.

69 I note that in forming my views about this aspect of the application I have not been asked to view any of the material that arguably falls into the category about which the accused complains.

The SIDS material

70 This material is no more or less than a sub-category of the wider set of publicised material. It is in a slightly different category to the extent that evidence concerning the death of the accused's son is specifically inadmissible. In my view any concerns about publicity attending the death of the accused's son, and the suggestion that his death was examined as potentially suspicious despite earlier conclusions that it was not, can and should where necessary be dealt with by an appropriate direction from me.

The potential for the application of objective community standards

71 Present indications are that, having regard to the fact that the accused has pleaded guilty to manslaughter, the central issue at the trial will be whether or not the accused performed the act that killed the deceased with either an intention to kill or to cause grievous bodily harm or with a reckless indifference to human life. According to the Crown, it will be central to this determination that the act committed by the accused that caused the death was different to and more damaging than the act to which the Crown anticipates the accused will admit. There is likely to be competing medical evidence in support of these different versions.

72 The Crown submits that if its evidence is to be considered properly by the tribunal of fact, it will involve an assessment of whether or not what the accused did evidences an intention or state of mind beyond that required for the crime of manslaughter. The tribunal of fact will necessarily be asked to consider the physical consequences for the deceased and to assess what was the relevant intent of the person who performed them. The Crown contends that such an exercise is very much an application of community standards and the ordinary experiences of life. The Crown submits, with particular reference to s 132(5) of the Act, that they are matters that are appropriate to be determined by a jury.

73 In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Heydon J considered that the question of whether or not an accused person had a particular intent was an example of an issue requiring for its determination the application of community standards. His Honour said this at [95]:

"...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."

74 The link between decisions concerning the existence or formation of a particular intent and the application of community standards was also discussed by Barr AJ in R v Stanley [2013] NSWCCA 124 at [56] - [59] with a conclusion as follows:

"[59] I accept that the fact alone that community standards must be applied in the resolution of factual issues does not mandate trial by jury but, as subs (5) makes clear, it is a circumstance in which the jury may be considered to be the superior tribunal of fact."

75 For my part I find it difficult immediately to accept that cases concerned with the assessment of whether or not a particular individual had formed or retained a particular intent allegedly relating to the commission of some charged act necessarily or even arguably "involve a factual issue that requires the application of objective community standards". The question, for example, of whether or not an act was committed with such force that it bespeaks or evinces a particular intention is undoubtedly a question of fact. The force of the suggestion that there is a corresponding and simultaneous requirement to apply some objective community standard in undertaking the assessment of that factual issue is not obvious to me. I note with some interest that the only citation provided by Heydon J for the proposition that "whether an accused person had a particular intention" was an example of a factual issue requiring the application of objective community standards was at note [86] to his Honour's judgment in these terms:

"[86] Buxton, 'Some Simple Thoughts on Intention', [1988] Criminal Law Review 484 at 495: '[R]ecourse to shared values and assumptions about the implications of actions and the circumstances in which those actions occur may be a safer guide to culpability than analytical deductions from a generalised verbal definition'."

76 In Belghar, McClellan CJ at CL expressed the view that the determination of intention in the particular circumstances of that case did not involve the application of community standards. Latham J referred to the competing views about it in R v Dean [2013] NSWSC 661 at [58] as follows:

"[58] The Crown in King relied upon this aspect of Heydon J's judgment and the Crown relies upon it here. It is right to acknowledge that Justice Heydon's observation in this respect was not endorsed by any other member of that bench and that McClellan CJ at CL accepted that the issue of intention did not involve the application of community standards in the circumstances applying in Belghar. Like Bellew J, I am not persuaded that the issue of intention can never involve the application of objective community standards. I also note that the basis of the decision in Belghar was that the trial judge determined the application in the absence of appropriate evidence and without considering whether such prejudice as was found to exist could be neutralised by directions."

77 Having regard to the view I have otherwise formed, it is strictly unnecessary to decide the point. I accept cautiously that it could not be said that the issue of intention could never involve the application of objective community standards. It does not, however, appear to me that this is such a case.

Conclusions

78 In my opinion it is not in the interests of justice to make the order sought by the accused. Accordingly the application for a trial by judge order should be dismissed.

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Decision last updated: 27 June 2013