Criminal law - Procedure - Application for trial by judge alone - Charges of wilful murder or murder - Issues arising at trial - Insanity - Factors for consideration

Criminal Procedure Act 2004 (WA), s 118

Criminal Procedure Rules 2005 (WA), r 28

Evidence Act 1906 (WA), s 32

Arthurs v The State of Western Australia [2007] WASC 182

Hone v The State of Western Australia [2007] WASCA 283

Mickelberg v The Queen (No 3) (1992) 8 WAR 236; (1992) A Crim R 288

The State of Western Australia v Martinez & Ors [2006] WASC 25

The State of Western Australia v Yeskovich [2005] WADC 111

TVM v The State of Western Australia [2007] WASC 299

1 EM HEENAN J: The accused, Brett David McDonald, is charged with the unlawful homicide of Steven David Petersen. The indictment presented against him by the Director of Public Prosecutions for Western Australia (the DPP) alleges that:

(1) On a date unknown between 31 August 2004 and 1 January 2005 at Munster, [he] wilfully murdered Steven David Petersen.

(2) In the alternate to count (1), between 31 August 2004 and 1 January 2005 at Munster, [he] murdered Steven David Petersen.

2 The trial of this charge has been listed for a period of 10 days in November 2010 before me sitting with a jury. However, Mr McDonald now applies for:

(1) Leave to vacate the allocated trial date;

(2) Leave to apply for a trial by a judge alone; and

(3) An order pursuant to section 118 of the Criminal Procedure Act 2004 (WA) for a trial by Judge alone without a jury.

3 As required by r 28 of the Criminal Procedure Rules 2005 (WA), the accused's application is supported by an affidavit which sets out the matters required by that rule.

4 The trial of indictable offences by a judge sitting without a jury has relatively recent application in Western Australia. It was first established by s 651A of the Criminal Code, which was repealed when s 118 of the Criminal Procedure Act 2004 (WA) came into force. Section 118 of the Criminal Procedure Act provides:

1. Trial by judge alone without a jury may be ordered

(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

(2) Any such application must be made before the identity of the trial judge is known to the parties.

(3) On such an application, the court may inform itself in any way it thinks fit.

(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

(5) Without limiting subsection (4), the court may make the order if it considers -

(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

(6) Without limiting subsection (4), the court may refuse to make the order 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.

(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.

(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.

(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.

5 Rule 28 of the Criminal Procedure Rules requires:

1. Trial by judge alone, application for (CPA s 118)

An application for an order under the CPA section 118 must be supported by an affidavit that -

(a) identifies the charge which the applicant wants to be tried by a judge alone;

(b) identifies all accused who are jointly charged with the charge and, if known, says whether each such accused will consent to being tried on the charge by a judge alone;

(c) says that the applicant does not know the identity of the trial judge; and

(d) if the applicant is the accused, says that the accused intends to plead not guilty to that charge.

6 Detailed submissions in support of the accused's application have been provided by the solicitors for the accused. This application is neither opposed, nor consented to by the DPP. However, the DPP has accepted the legal propositions and factual admissions outlined in these submissions.

7 Section 118(2) requires that any application of this kind must be made before the identity of the trial judge is know to the parties. Parliament's intent in including this provision is to prevent a practice commonly know as 'judge shopping': Arthurs v The State of Western Australia [2007] WASC 182 [52] (Martin CJ). It appears that Mr McDonald's application may not have been brought within the time specified by this subsection because the court had already published the listing arrangements for this trial. Consequently, counsel for the accused has applied for leave to vacate the allocated trial dates. An affidavit in support of this application has also been filed by the solicitor acting for Mr McDonald. In that affidavit the solicitor sets out the reasons why the accused's application pursuant to s 118 of the Criminal Procedure Act was not made prior to the court publishing the trial judge's identity. The solicitor asserts that the identity of the trial judge was not known to the parties at the time of the decision to make this application and annexes email correspondence between the solicitors for the accused (Legal Aid) and the DPP bearing that out. In addition, the solicitor deposes that he was waiting on instructions from the accused and from counsel retained for the trial as to the desirability and availability of a trial by judge alone. I will grant the accused's application to vacate the trial dates and, in any event, accept that the identity of the listed trial judge was unknown to the parties at the time the decision to apply was made.

8 Counsel for the accused submitted, and counsel for the prosecution accepted, that a pattern is emerging in cases where applications for trial by judge alone have been considered appropriate. These are cases where the accused's mental capacity is the central issue for determination at trial. In TVM v The State of Western Australia [2007] WASC 299, his Honour, McKechnie J observed [6]:

Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone.

9 In addition, Martin CJ observed in Arthurs [59]:

My researches have only identified three decisions dealing with the section. Two of those, The State of Western Australia v Tarau [2005] WASC 290 and The State of Western Australia v Iley [2006] WASC 107, were cases in which the application was granted on the ground that the essential issue for determination was whether the accused person was not guilty by reason of insanity. Because that issue will obviously turn largely upon the evaluation of expert evidence in each of those cases it was considered appropriate to grant the application.

10 Counsel for the accused submitted that the accused intends to raise the defence of insanity pursuant to s 27(2) of the Criminal Code, which provides:

(2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

11 Two independent psychiatrics have assessed the mental state of the accused and have prepared reports detailing their findings. Although I have not seen either of these reports, it was submitted by counsel for the accused, and accepted by the prosecution, that both psychiatrists concluded that the accused is suffering from a serious mental illness. This means that the central issue for determination in the present case will be the accused's mental capacity at the time of the alleged offence. This will be determined primarily on the basis of expert evidence, being the psychiatric evidence.

12 The accused also intends to admit numerous facts pursuant to s 32 of the Evidence Act 1906 (WA). These include:

(a) On a day between September and December 2004 he struck Steven David Petersen to the head with an axe;

(b) This occurred at 707 Rockingham Road in Munster, Western Australia at approximately 9 pm;

(c) This blow to the head caused Steven David Petersen's death;

(d) Following the blow to the head, he dismembered Steven David Petersen's body and buried the body parts on the property belonging to 'Cockburn Cement' situated at 242 Russell Road East, Munster, Western Australia

(e) The bones found at the Cockburn Cement property are those of Steven David Petersen; and

(f) That he was the person who caused Steven David Petersen's death.

13 In light of these admissions made by the accused, the prosecution agrees, and I accept, that the only real issue at trial is the accused's mental capacity at the time of the alleged offence. It is for this reason that I accept that this is an appropriate case for a trial by judge alone.

14 Sections 118(4) and (5) set out the ambit of the court's discretion to grant an application for a trial by judge alone. The decision with respect to the manner of trial in the court must be made 'in the interests of justice'. Although this phrase is not expressly defined in the Criminal Procedure Act, there has been some judicial discussion of its meaning. In regards to criminal proceedings, Malcolm CJ referred to the phrase in Mickelberg v The Queen (No 3) (1992) 8 WAR 236, 251; (1992) A Crim R 288:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice.

15 In TVM McKechnie J referred to the above passage and also to The State of Western Australia v Yeskovich [2005] WADC 111, and commented at [29] that both cases:

Pointed to the importance of a fair trial and it is undoubted that the fairness of a trial will be an important component of the interests of justice. It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone.

16 Considering that the facts will not be in dispute due to the proposed admissions by the accused, the central issue for determination will be Mr McDonald's state of mind at the time of the alleged offence. Counsel for the accused submitted that the interests of justice dictate that this issue should be decided by a Judge alone, rather than by a jury. This submission was again based on the significance of expert evidence in this case. In Hone v The State of Western Australia [2007] WASCA 283, Miller JA held [18]:

The psychiatric evidence to be led in the case was likely to be more properly determined by a judge alone than by a jury. This was because the psychiatric evidence was to be directed to the question whether or not the accused was of unsound mind at the time of the commission of the offences: s 27 Criminal Code.

[There is] the danger of rejecting the reasoning of an expert (psychiatric) witness by reference to the reasoning of lay people, who use commonsense based on their experience of sane, rather than mentally ill, people

18 As stated previously, it now appears that the main witnesses will be independent psychiatrists. The determination of the accused's mental capacity will turn largely upon the evidence of these experts. In light of the observations made in the cases cited, I consider that the expert evidence will be more properly considered by a judge sitting alone without a jury.

19 Section 118(6) provides a number of circumstances which may lead to the court refusing to grant the order for trial by judge alone; namely, if the court considers that the trial will involve factual issues that require the application of 'objective community standards' such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness. In The State of Western Australia v Martinez & Ors [2006] WASC 25, I observed [6]:

Each of the five abstract categories or standards mentioned in this non-exclusive list involves, to a greater or lesser extent, the formation of a value judgment reflecting general community standards at the time or times in question. In particular, they involve a formation of a value judgment concerning standards upon which there can be expected to be some variations of opinion within the community and, hence, the judgment of a number of persons selected from the community at random (a jury empanelled in accordance with law) is likely to be a better indication of the prevailing community standard or standards applicable to the particular case than the value judgment of one person alone - even an experienced Judge.

20 Since my decision in Martinez the Chief Justice considered that the five categories outlined above, in his opinion, would not usually apply to a charge of murder. His Honour held [65]:

It is difficult for me to see how concepts of that kind can have any application to charges of homicide except perhaps cases involving manslaughter by negligent conduct, or possibly cases involving self-defence or provocation. In cases of intentional homicide no questions of objective community standards commonly arise because, of course, all reasonable members of our community oppose the taking of human life.

21 I agree that may often be the case but every case may have its own special features. In this case I accept that such abstract values are unlikely to arise. It is clear that, given the admissions that the accused intends to make, it is unlikely that the jury will need to make any factual findings on such issues as applicable community standards. Instead, the central issue will be the mental state of Mr McDonald at the time of the offence. As a result, I accept that this is an appropriate case for a trial by judge alone.

22 For these reasons I consider that the appropriate orders should be:

1. The trial be adjourned to a date to be fixed.
2. The accused's application for a trial by judge alone be granted.
3. I direct that:

(a) the trial be listed for hearing at the soonest available possibility; and

(b) the parties and my Associate do notify criminal listings and attempt to utilise the allocated trial dates in November.