CHIHA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASC 147 (23 April 2015)

4 Section 118 provides that where an accused is committed for trial to a superior court either the prosecutor or the accused may apply for an order that the trial be by judge alone without a jury. On such an application the court may inform itself in any way it thinks fit.

5 An order may be made if the court considers it is in the interests of justice to do so. Sections 118(5) and 118(6) provide circumstances in which an order may or may not be made. Those subsections are not exclusive and do not limit a court finding that in other circumstances it is in the interests of justice to make an order. Section 118(4) is of relevance, in that it provides that the court may refuse to make an order if it considers that the trial will involve factual issues that require the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness.

6 Having regard to s 118(4), it is important to give some consideration as to what the issues at trial will be. The prosecution case here is that the accused, on an evening at home, when his children were also at home, attacked his wife, following an altercation between them, with a knife, and that, in so doing, he also wounded his son, who came to the assistance of his mother.

7 There has been an exchange of psychiatric reports in respect of whether the accused was of sound mind at the time when the killing of the accused's wife occurred. The prosecution intends to call Dr Adam Brett, and he has produced a report which has been served and provided to the court. The defence intends to call Professor Paul Skerritt, who has produced three reports which have also been received by the court and served on the prosecution. Those reports are summarised in the written submissions that have been provided on this application.

8 Suffice it to say that Professor Skerritt is of the opinion that at the relevant time the accused lacked at least one of the capacities referred to in s 27 of the Criminal Code (WA). Professor Skerritt refers specifically to the accused lacking the capacity to understand what he was doing, but he also refers to automatism, and a lack of a capacity to control what he was doing at the time. Accordingly, it is likely to be a live issue at trial whether s 27 applies in the circumstances of this case.

9 I need only note in regard to Dr Brett that he is of a different opinion. He concludes that the accused is likely to have been suffering from a mental illness at the time of the incident, but he does not believe that the accused was psychotic or that he lacked any of the relevant capacities in s 27. It can be inferred from that that there will be a conflict in the evidence of those two experts at the trial.

10 The applicant seeks trial by judge alone, because it is said that one of the principle issue's at trial will be whether or not at the time of the alleged killing and wounding the accused was of unsound mind within the meaning of s 27. An alternative defence is that if the lack of those capacities is not established to the requisite standard it will be suggested that the accused lacked specific intent for the offence of murder.

11 The accused has provided a statement of admitted facts pursuant to s 32 of the Evidence Act 1906 (WA), in which he admits that on 29 April 2013 he stabbed the deceased with a knife, causing a penetrating wound to the chest and other injuries. It is further admitted that the knife used for that attack was a black handled kitchen knife which broke during the incident and that the deceased died as a direct result of being stabbed by the accused. Accordingly, issues of identity and causation are not going to arise. The factual issues that will need to be determined are whether the accused was or was not of sound mind, and if of sound mind, whether he had one of the specific intentions necessary to constitute murder.

12 It is clear on the authorities, and I refer in particular to Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500, that psychiatric evidence of mental illness can be relevant not only to the issue of sanity but also in determining the question of whether an accused had a specific intent. It can be assumed that even if insanity is not established to the requisite standard the psychiatric evidence will still be relied upon in arguing that it has not been established beyond reasonable doubt that the accused had the relevant specific intent to constitute murder. That is relevant because it goes to the issue of the complexity of the matters that might need to be determined by a jury.

13 There is a reference in the applicant's submissions to s 28 of the Code, but I understand that that is not an issue which is likely to be raised. Certainly, it is not an issue that is raised in the context of sanity, although it may be raised in the context of a specific intent.

14 The State opposes the application. Initially, that was done on the basis that it was premature, because the court was being asked to speculate as to what the issues would be, in the absence of factual admissions. That indeed was still the case until today, when I made it clear that in the absence of confirmation of the admissions I would not be willing to make any assumption that the factual issues would be confined. But, those admissions having now been made, that ground of objection falls away.

15 However, the State also submits that the resolution of conflicting psychiatric evidence is not something that historically has been a matter that juries have been incapable of resolving. It is an issue that has been resolved at jury trials in the past. It is also submitted that the seriousness of the charge does not weigh against a jury trial. Indeed, in some respects, it is suggested to make it more appropriate that this be a trial by a jury consisting of members of the community. It is said that the assessment of the facts underlying the expert opinions in this case depends on an assessment of human behaviour. That is said to be essentially a jury question, bringing to bear collective experience of members of the community from various walks of life. I do take all of those matters into account.

16 In Coates v The State of Western Australia [2009] WASCA 142, the Court of Appeal considered s 118 of the Criminal Procedure Act. Buss JA, with whom the Chief Justice and Owen JA agreed, said:

[T]he expression, 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. Those observations on the expression of 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury [104].

17 In TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 McKechnie J said:

[A]lthough there are a range of cases in which orders for trial by judge alone have been made, 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 [6].

18 The reason for that being that the only remaining issue in such cases involves the resolution of conflicting expert evidence, which might be thought to be a matter particularly suitable for determination by a judge with experience in such matters.

19 In Hone v The State of West Australia [2007] WASCA 283; (2007) 179 A Crim R 138, an order was made for trial by judge alone because the psychiatric evidence to be led in the case was likely to be more properly determined by a judge than by a jury. This was because the psychiatric evidence was directed to the question of whether or not the accused was of unsound mind at the time of the commission of the offences, pursuant to s 27 of the Criminal Code (WA). Whilst judges are not infallible in this regard and Hone was an example of that, there was no suggestion on the appeal that a trial judge alone in such circumstances was inappropriate.

20 In The State of Western Australia v Brown [No 2] [2013] WASC 280, the accused was also charged with murder and the issue was one of unsoundness of mind. Jenkins J said:

[T]hat the complexity of an insanity case borne from a combination of the accused's multidrug and substance abuse, expert opinion regarding interactions between those drugs and substances, differing psychiatric opinions and an involved factual background, may mean that it is in the interests of justice for the case to be tried by judge alone. This is because a judge is more experienced than lay persons in deciding cases requiring the application of legal principles, which in themselves are far from straightforward, to disputed and often complex expert evidence [26].

21 Whilst it is not clear to me to what extent intoxication and s 28 may be raised here in the context of intention, what her Honour said is also applicable where it is clear that the defence case is going to be that the accused, firstly lacked capacity under s 27, but in the alternative lacked a specific intention by reason of mental illness.

22 As to whether this is a case that is likely to raise community standards, such that it is more suitable to trial by judge alone, I refer to what the Chief Justice said in Arthurs v The State of Western Australia [2007] WASC 182 :

[I]t 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 selfdefence 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. The same observations appear to me to apply to the other charges against Mr Arthurs; that is charges of unlawful sexual penetration of a child under the age of 13 and unlawful detention [65].

23 That would seem to be relevant in the present case because there is no suggestion here that manslaughter by negligent conduct, selfdefence or provocation arise on the facts (accepting that provocation has very limited application in homicide cases in any event). In these circumstances it is unlikely that community standards will be to the fore in determining the issues at trial.

24 I am satisfied that the principal issues in this case will require a determination of conflicting psychiatric evidence. That may need to be done both at the stage of considering whether the accused is of unsound mind, which will be the first question to be addressed, but then also in considering whether the accused had a specific intention. The necessity to consider the psychiatric evidence in both of those contexts does raise a level of complexity. Not only will the finder of fact have to consider the conflicting psychiatric evidence in some detail to compare it and to consider how each of the psychiatrists have approached the question and reached their conclusions, it may then be necessary to consider that psychiatric evidence in two different contexts in which the onus and standard of proof is different. That is because the onus of proving a lack of mental capacity under s 27 is on the accused and the standard is the balance of probabilities, whereas the onus of proving a specific intent is on the prosecution and the standard is beyond reasonable doubt. That does raise an additional level of complexity that I do consider may be problematic for a jury. Bearing in mind that those are likely to be the only live issues at the trial and that the evidence will be limited to those issues, then in all of the circumstances I am satisfied that the interests of justice do justify making an order that this trial be a trial by judge alone. And I so order.