LFG v The State of Western Australia [2016] HCATrans 20 (12 February 2016)

Last Updated: 16 February 2016

[2016] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P24 of 2015

B e t w e e n -

LFG

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 FEBRUARY 2016, AT 11.57 AM

Copyright in the High Court of Australia

MS K.J. FARLEY, SC: If it please your Honours, I appear for the applicant in this matter with my friend, MS N.R SINTON. (instructed by Legal Aid Western Australia)

MR J. MCGRATH, SC: If it please the Court, I appear with my learned friend, MS K.C. COOK for the respondent. (instructed by Director of Public Prosecutions (WA))

KIEFEL J: Yes, Ms Farley.

MS FARLEY: Your Honours, the right of an accused to a trial by jury is a well understood and revered icon of the criminal justice system. However, for some accused persons the option of an alternate finder of fact in the form of a judicial officer sitting alone becomes, in the interests of justice, a far more preferable form of trial. This is such a case.

Your Honours, this application comes before you from a split decision of the West Australian Court of Appeal which considered, amongst other grounds not the subject to this application, a decision of the then Chief Judge of the District Court as to the merits of an application made pursuant to section 118 of the Criminal Procedure Act (WA) for a trial of 33 charges of indecent dealings and aggravated sexual penetrations, alleged to have been committed against an 11 to 14-year-old boy, to be heard by a judge alone without a jury.

The majority of the Court of Appeal upheld the Chief Justice’s decision that it was not in the interests of justice to make such an order. The applicant, however, respectfully adopts and relies upon not only his written submissions but also upon the reasoning and the decision of the Chief Justice of Western Australia whose dissenting judgment appears at pages 131 to 194 of the application book for the purposes of this application.

The applicant submits that contrary to the view of the majority it was in the interests of justice in this case for an audit to have been made for his charges to be heard for a judge sitting alone. His contention is on the basis that the circumstances of his case lead inevitably to such a conclusion.

Until 1994 in Western Australia all indictable trials were heard by judge and jury. In 1994 section 651 of the Criminal Code was introduced providing an accused person the right to elect trial by judge alone with prosecutorial consent. There are some jurisdictions in Australia that still have a similar provision. However, following a review of criminal and civil justice systems by the Law Reform Commission of WA in 1999, the Criminal Procedure Act was brought in in 2004, repealing section 651 of the Code and enacting section 118, which now provides for an application to be made either by an accused person or by the prosecutor before the identity of the trial judge is known by the parties.

Unlike section 651A, section 118 of the Criminal Procedure Act gives the court a discretion to determine whether such an order should be made to be exercised in the interests of justice provided that it should not be made on an application by the prosecution unless the accused consents to the making of the order.

KIEFEL J: The question here is whether or not the discretion miscarried. You say that the question or questions involved in what are in the interests of justice were not addressed by the Chief Judge - I think that is the way in which you put it - that there were some essential questions or considerations which the Chief Judge failed to have regard to. Is that essentially your point?

MS FARLEY: Yes, it was. The Chief Judge found that there was an affirmative obligation on the part of the accused person to show that the application should be made in the interests of justice. The Chief Judge referred to a preliminary decision of Judge Stevenson of the District Court relating to an application pursuant to section 31A of the Evidence Act, which is the Western Australian propensity and relationship evidence section.

That also arose in this case because the difficulty that the applicant had was that he had previously been convicted after a trial by jury of seven counts of offending of a sexual nature against boys of a similar age. An application was made before Judge Stevenson in the District Court to allow that evidence in. That evidence was admitted and the application for trial by judge sitting alone came after that decision was made.

In the course of Judge Stevenson’s decision he found that the prejudice to the applicant of the evidence being led could be overcome by a suitably robust judicial direction to the jury that a jury would be able to understand and rely upon appropriately. On that basis the evidence was admitted and that then led to the application for a trial by judge alone. In his decision - - -

GORDON J: Having regard to that background, which you have outlined, what is missing from Chief Judge Martino’s analysis which is extracted, to the extent relevant it seems, at paragraph 30, on pages 136 and 137 of the application book or found, more appropriately, at pages 51 and following of the supplementary book?

MS FARLEY: What is missing is what the Chief Justice describes in his decision as the very real risk that, notwithstanding an appropriately robust judicial direction and the jury potentially understanding and acting upon that, there was a very real risk of an unfair trial in this matter, given the nature of the propensity evidence that was led.

GORDON J: Just so I am clear about that, does that mean that you take issue with a miscarrying of the discretion in lines 21 and 22 on page 137, that is, do you accept that his Honour considered those matters but you say failed to take them into account sufficiently or - - -

MS FARLEY: What we are saying is that there are two separate steps, that in considering the section 31A application, the question is whether to admit the evidence, whether it is reasonably probative or sufficiently probative as to overcome the prejudice to the accused of having admitted it. That decision is different from the decision to be made on section 118 of the Criminal Procedure Act in terms of what is in the interests of justice in terms of what form the trial should take.

What the error was argued that the Chief Judge of the District Court made was that he revisited in a sense, we say, the same question as had to be answered on the question of whether the propensity evidence should be entered and that there was a different question to be asked. If you look at the dichotomy of views between the Chief Justice in the court below and Justice Buss, you will see the difference quite clearly insofar as Justice Buss considers whether it is necessary or desirable to make an order under section 118, whereas the Chief Justice very firmly says the question is whether it advances or enhances the interests of justice, whether it is in the interests of justice.

So the argument in the court below went that the Chief Judge had erred in that effectively he limited the question to the incorrect question, and it is interesting, your Honours, because it was clear in the court below that all three judges, although Justice Mazza did not write any judgment as such but simply agreed with Justice Buss, that the starting point was that there should be a broad discussion and a broad interpretation of what the interests of justice may be. Then, in our respectful submission, Justice Buss, and with him Justice Mazza who agreed, then construed it narrowly by putting in a necessity question.

KIEFEL J: Is your point that what the Chief Judge said at page 137 at about line 25 in the quote there:

I reach the conclusion that it is not in the interests of justice for there to be a trial by judge alone –

shows that the question has been approached incorrectly because it is approached in a negative way rather than in a positive way?

MS FARLEY: Than in a positive way, yes, your Honour, I would agree with that.

KIEFEL J: But is that not simply to state that it is not considered that the interests of justice require there to be a trial by judge alone?

MS FARLEY: I am not sure that is the correct - - -

KIEFEL J: It just becomes semantics really, does it not?

MS FARLEY: Yes, and in the sense that the matter must be looked at broadly, then there may be any reason why the interests of justice may be served without the interests of justice requiring – my submission would be that there is a distinction in that and I think that is backed up by the decision of the Chief Justice in the court below when he said that notwithstanding that the process had been through as to the question of whether this propensity evidence would be overcome in terms of its prejudice, and it was particularly prejudicial.

It was similar fact. During the course of the trial it was referred to on numerous occasions, particularly by the prosecutor and also by the judge in his summing-up. It was proximate in time. It was a very short period of time between the two alleged offences, series of offences, and one series of offending prior in relation to one complainant was almost entirely similar. So it was extremely prejudicial, albeit also extremely probative.

KIEFEL J: Well, quite, but it could hardly be said that the Chief Judge of the District Court was not cognisant of the risk of prejudice. That was a matter his Honour directly addressed.

MS FARLEY: Yes.

KIEFEL J: But to return to the approach of the Chief Justice in the Court of Appeal - and I think your adoption of what his Honour says, namely that the question was not whether a jury was capable of putting aside prejudice, but whether an order for judge alone would advance or enhance the interests of justice - how do you say that an order for a judge alone trial would advance or enhance the interests of justice?

MS FARLEY: For the reasons decided by the Chief Justice primarily, but if I can put them in a different way? This was the trial of a man who had been previously found guilty of seven similar – it is accepted – offences quite proximate in time to the charges that he was facing at the time. He had consistently and persistently denied any wrongdoing towards any child. He consistently and persistently denied that throughout his first trial which was the subject of the application for propensity evidence. No admissions were ever made.

The trial went before the jury. He was disbelieved. When he was charged again, he made no admissions. He pleaded not guilty throughout. He maintains his innocence to this day. He had been through a system previously that had decided against him, that had decided that he was disbelieved. Before the jury it was put to him on numerous occasions in cross-examination that he had lied previously, that he had been found guilty by the jury, that he had been disbelieved - this was a system of justice in which he could have little faith.

His option was, under section 118, to apply for a trial by judge alone. That he did in the hope that an alternative type of trial may afford him with some justice. This is not just a subjective view of his. As the Chief Justice found at page 171 of the application book it was a very real risk that the findings of guilt against this man being admitted, notwithstanding any strong judicial directive by the judge to the jury and notwithstanding every jury’s best intention in accepting that directive, that justice would be seen to be done, or would be perceived to be done.

That is the nub, I think, of what the Chief Justice means when he says that the whole question should be looked at of the interests of justice in a broad sense, not whether it is necessary to prevent an unfair trial on the face of things, but the necessity to bring the citizens along with the process and to allow an option which is primarily the reason that section 118 is there – to protect the rights of the accused. That is backed up by the fact that if the prosecutor applies for a trial by judge alone that order will not be made unless the offender, or the accused person, consents.

So, it is a viable alternative form and for that reason it cannot be constrained to what is necessary to protect the right to a fair trial. It must be looked upon in its broader sense and what we say is that in cases of propensity which are arguably very prejudicial against the accused, albeit probative, then that is a matter that should be looked at very closely on any application under section 118.

We say that in this case it miscarried and that in terms of what comprises the interests of justice the views of the Chief Justice should be preferred to the views of the majority. This is a matter that will arise again. In Western Australia propensity evidence is commonplace. There may be some instances where the situation does not arise and accused people do not apply for a trial by judge alone lightly in my experience, your Honours, and for that reason a number of jurisdictions in Australia have the proviso that

prior to considering the matter a judge must satisfy himself or herself that a person has obtained legal advice in relation to the matter. A trial by jury is as of right in a default situation not one that is handed up lightly. In this case we say, and the Chief Justice found, there were very good reasons for applying that and that could only be serving the interests of justice.

In light of your Honour’s questions, I do not think I can take the matter any further, although I will say that in terms of the proviso, I simply apply and rely upon the comments of the Chief Justice in relation to the application for the proviso in this matter. I could not put it any more succinctly or appropriately than his Honour does in that part of the book. Unless there is anything further.

KIEFEL J: Yes, thank you, Ms Farley. We do not need to trouble you, Mr McGrath.

There is, in our view, insufficient reason to doubt the correctness of the decision of the court below. The interests of justice do not require the grant of special leave. Special leave is refused.

AT 12.15 PM THE MATTER WAS CONCLUDED