R v Belghar: judge alone or jury and the “interests of justice”

Section 132 of the Criminal Procedure Act NSW provides that an accused charged with an indictable offence tried in the District or Supreme Court of NSW can ask for an order from the presiding judge that they be tried before a judge sitting alone (ie. no jury). The judge is to consider the “interests of justice” in deciding whether to make the order.

The section also provides that the judge may refuse the application if the trial involves the resolution a factual issue requiring the application of objective community standards (eg. reasonableness or dangerousness), which a jury would embody,  or if there is a substantial risk of jury interference that cannot reasonably be mitigated.

In R v Belghar [2012] NSWCCA 86 the accused successfully applied for an order under section 132 at first instance. The basis upon which the application was granted was that the trial would bring before the Court the religious and cultural circumstances of the accused as a Muslim person and in the words of the trial judge, “in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs….[the accused] may not receive a fair trial.”

The prosecution appealed the order.

After  a lengthy review of other decisions on this issue (and the jury system per se) the NSW Court of Criminal Appeal (CCA) decided that because there was no evidence before the trial judge as to how and where such prejudices lay and the extent to which they would conceivably operate to affect the receipt of a fair trial by the accused, the trial judge’s decision should be quashed. It was also found that these were not matters of which a judge could take judicial notice under s144 of the Evidence Act.

The Court contrasted this matter with the decision in Arthurs v The State of Western Australia [2007] WASC 182 in which a judge alone trial was ordered based on evidence given by the solicitor for the accused of the considerable prior media attention that case had received. Therefore, there was a real rather than simply perceived, likelihood that a fair trial would not be received if heard by a jury.

The Chief Judge did acknowledge there may be “some people in the Australian community [who] 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” [107].

However, he said there are also sufficient protections afforded by virtue of a juror’s stated undertaking to exercise an impartial mind and the standard trial judge’s directions that the jury must decide the case according to the evidence and not based of any inherent prejudice they may harbour.

The decision is also notable for the following comments by McLellan CJ about the meaning of “interests of justice” in section 132:

(i)        the “interests of justice” is not informed by considerations of efficiency in the overall running of the trial before a judge sitting alone [111]; and

(ii)       if the matter will involve a decision on a complex technical issue, the “interests of justice” may be promoted by the obligation for a judge to give reasons, as opposed to the inscrutability of a jury’s decision [112].

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Filed under Crime, jury vs judge alone trials

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