JOHNSON J: By Notice of Motion filed in Court on 17 August 2017, the Accused, Stephen James Boyd, seeks to have vacated his trial fixed to proceed in this Court commencing on 28 August 2017.
Several items of evidence have been placed before the Court at the hearing of this application to vacate the trial. Firstly, the affidavit of Ross Michael Hill (the Accused's solicitor) affirmed 16 August 2017 (which annexes two reports of Doctor Ilana Hepner dated 22 June 2017 and 14 August 2017), secondly, a report of Doctor Richard Furst dated 8 March 2017 (Exhibit A), thirdly, a statement of Daniel Boyd dated 11 May 2016 tendered by the Crown (Exhibit 1). The Crown also tenders a statement of James Gardner dated 29 April 2016 (Exhibit 2), a Tendency Notice dated 8 June 2017 served by the Crown (Exhibit 3) and the Crown Case Statement (Exhibit 4).
Submissions have been made in support of the application to vacate the trial date by Mr Brewer of counsel, who appears for the Accused. The Crown opposes the application to vacate the trial date.
The events giving rise to the charges against the Accused occurred on 24 and 25 April 2016. He was arrested and charged on the latter date. The Accused was committed for trial from the Local Court on 4 May 2017. He appeared in the Arraignments List before me on 2 June 2017 on which occasion the matter was stood over, on the application of the Accused, to 7 July 2017.
On 7 July 2017, the Accused was arraigned before RA Hulme J on four counts. The first count alleges the murder of Despina Kontozis at Bundeena on 24 April 2016. The second count alleges that, on 24 April 2016 at Bundeena, the Accused did wound his son, Daniel Boyd, with intent to cause grievous bodily harm. In the alternative to count two, the Accused is charged by count three that on 24 April 2016 at Bundeena he did assault Daniel Boyd thereby occasioning actual bodily harm to him. The fourth charge is that on 25 April 2016 at Mulloon (a place in the Goulburn district), he did drive a motor vehicle whilst he ought reasonably to have known that police officers were in pursuit of the vehicle and, that when he was required to stop the vehicle he did not stop and drove the vehicle in a manner dangerous to others.
A plea of not guilty was entered to each count.
RA Hulme J was informed by the Accused's then legal representative, in response to a question about the issues at trial, that it was "essentially provocation". After some discussion as to trial dates, the matter was fixed for trial commencing on 28 August 2017 with an estimate of two-to-three weeks. His Honour gave case management directions for the purpose of the filing and service of the prosecution and defence notices.
The solicitor then appearing for the Accused did ask his Honour for the latest possible date, but there was nothing said to his Honour at that time about any issue relating to a partial defence of substantial impairment.
When the matter was before me on 2 June 2017, a different legal representative for the Accused sought an adjournment, noting that a psychiatric report had been obtained and that there was a recommendation for a neuropsychological report. I allowed an adjournment to the next Arraignments List upon this basis. What occurred on the next date is what I have outlined as happening before RA Hulme J on 7 July 2017.
The matter has been allocated to Lonergan J as trial Judge and I understand there have been some mentions before her Honour.
The affidavit of Mr Hill reveals the history of the preparation of the matter to which I will return.
I should indicate at this stage something about the allegations against the Accused. The material tendered on behalf of the Crown is the source for what I am about to say. It is the Crown case that the Accused had, as at April 2016, a significant problem with alcohol which had given rise to earlier difficulties and that there was, in fact, an Apprehended Violence Order in force since July 2015 to protect his then partner, Despina Kontozis, and his son, the person mentioned in counts two and three.
The evidence upon which the Crown proposes to rely is that, on 23 April 2016 and the following day, the Accused had consumed a considerable quantity of alcohol. He was, in fact, at the residence owned by Ms Kontozis at Bundeena on 24 April. At some point in the afternoon, it is alleged that the Accused attacked Ms Kontozis, struck her to the head and stabbed her a number of times. Daniel Boyd, the son of Ms Kontozis and the Accused, came upon the scene and enquired of the Accused what he had done. The Accused then allegedly attacked Daniel Boyd, coming towards him with a bat in his hand which was in due course swung towards Daniel Boyd who is said to have suffered an injury and become unconscious momentarily.
It is then alleged that the Accused entered a Holden Commodore and drove off. It is alleged that he stopped at the Heathcote Bottle Shop later that afternoon.
Emergency personnel who attended the house at Bundeena found Ms Kontozis. She had suffered multiple sharp force injuries to the surface of her body, the head and neck and upper extremities and there were extensive skull and base of skull fractures. The police located a wooden bat and knives which were covered in blood.
The Crown case is that the Accused, having driven away from Bundeena, drove to the Goulburn area. It is alleged he purchased more alcohol at an alcohol outlet in Goulburn on the afternoon of 25 April 2016 and that he continued to drive in that area. The motor vehicle triggered a warning on the automated number plate recognition system. As a result, the police determined to stop his vehicle. It is alleged that the Accused drove his vehicle, reaching speeds of between 150 and 165 kilometres per hour with the pursuit taking place over 26 kilometres. It is alleged the Accused lost control of the vehicle whilst attempting to overtake a slower moving vehicle, and collided with a drainage channel causing his vehicle to become airborne before coming to rest. The police at that time arrested him. A subsequent blood test revealed a blood alcohol level in the Accused of .177 grams of alcohol in 100 millilitres of blood.
It will be apparent from those allegations, and indeed from the statements of Daniel Boyd and James Gardner and the statements made in 2015 by Ms Kontozis and Daniel Boyd which form part of the tendency evidence, that the Accused had a very significant problem with alcohol at the time of these events, although it would seem that it was not such as to inhibit his ability to drive the significant distance from Bundeena to Goulburn before he was ultimately stopped by police in the manner I have described.
The application to vacate the trial date is based upon an indication that the legal representatives for the Accused are still exploring the availability of the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900. I pause immediately to note that that partial defence, even if it was available, could only apply to the murder count. It can have no application to the other counts.
To the extent that, on 7 July 2017, RA Hulme J was informed that provocation was said to play a role in the trial, counsel for the Accused has made clear today that the Accused is not to rely upon the partial defence of extreme provocation, so that issue can be put to one side.
The application involves some recital of examinations undertaken of the Accused at the request of his legal representatives. Dr Richard Furst, psychiatrist, assessed the Accused by interview on 24 August 2016. Dr Furst provided a detailed report dated 8 March 2017. He expressed the opinion that the Accused was fit to be tried. He expressed the opinion that the Accused did not have a mental illness defence available to him.
Dr Furst then turned to substantial impairment. He noted there was no indication that the Accused was psychotic at the time of the events in April 2016. Dr Furst expressed the opinion that the Accused "was aware of his actions and was also aware of the wrongfulness of his actions, being driven by anger and possibly intoxication".
Dr Furst then referred to previous head injuries, of which the Accused had informed him. He said:
"His previous head injuries and the presence or absence of significant cognitive impairment from such acquired head injuries, if present, would appear to be the only clinical basis for an 'abnormality of mind' on the basis that he may have lacked the capacity to control himself."
Dr Furst said:
"Neuropsychological testing would be of assistance in clarifying the extent of cognitive impairment, if any."
Dr Furst noted the history, and that some documentation had been made available to him with respect to what had been said to be earlier incidents. It was noted that a CT scan, conducted in 2014 at the time of an episode at a beach, indicated "no acute intracranial pathology such as a fracture or bleed on the brain".
The legal representatives for the Accused made arrangements for him to be examined by Dr Ilana Hepner, a clinical neuropsychologist. In her first report of 22 June 2017, Dr Hepner recounted aspects of the history. She had not discussed with the Accused the events giving rise to the charges, because "he did not want to discuss his legal matter" with her.
As in Dr Furst's report, there are frequent references to the Accused's alcohol dependence and history of significant alcohol abuse in the report of Dr Hepner.
Dr Hepner undertook a number of neuropsychological tests, the details of which are referred to in the report. With respect to the symptom validity check, Dr Hepner noted that "several measures were administered to assess [the Accused's] motivation on tests of memory and cognition" and that "he performed poorly on most of these tasks, reflective of inadequate test taking effort".
Dr Hepner noted that the Accused, a 52-year old man, had a history of heavy alcohol use. She said:
"13.3 Findings of current assessment reveal that Mr Boyd is a man of estimated Average pre-morbid function, with no evidence of impairment in areas of perceptual reasoning, basic attention, visual memory and several aspects of frontal executive function.
13.4 Further testing reveals deficits in areas of verbal reasoning, verbal learning and memory, speed of information processing and areas of frontal executive function involving verbal reasoning, planning and organisation.
13.5 However, Mr Boyd also performs poorly on several measures of test taking effort, and this renders the results of the above mentioned cognitive tests invalid and uninterpretable.
13.6 As such, it is not possible to say whether Mr Boyd has any evidence of cognitive impairment on the basis of possible acquired brain injury."
That was the report available at the time when the trial date was taken on 7 July 2017. In light of that report, it is not surprising that no mention was made of this topic to RA Hulme J on that day.
The solicitor for the Accused approached Dr Hepner again and a supplementary report of 14 August 2017 was provided. Once again, Dr Hepner referred to the Accused's "long history of heavy alcohol use" and other incidents involving the Accused. She repeated her earlier statement that:
"[O]n formal testing, Mr Boyd performed poorly on several measures of test taking effort, which rendered the results of cognitive testing invalid and uninterpretable. As such, I opined that it was not possible to say whether Mr Boyd has any evidence of cognitive impairment on the basis of possible acquired brain injury."
Dr Hepner suggested that another set of tests should be administered at a period which best practice suggests would be 12 months after the first tests (that is, June 2018), to see indeed whether there is any evidence of cognitive impairment on the basis of possible acquired brain injury.
The application effectively is that the trial date should be vacated to allow the Accused, at some time it would seem on the other side of 22 June 2018, to have another set of tests administered by Dr Hepner, in the hope that they may overcome in some way the shortcomings of what was produced in the tests carried out two months ago.
I note that the evidence available says that there is no issue as to fitness to be tried. There is no evidence to support a defence of mental illness and, with respect to a partial defence of substantial impairment, Dr Furst seems to be emphasising the role of anger and intoxication, although he leaves open the possibility of some issue of cognitive impairment which should be the subject of neuropsychological testing.
The neuropsychological testing by Ms Hepner is as I have indicated. It in fact leads to the position that at present it is not possible to say whether there is any evidence of cognitive impairment on the basis of possible acquired brain injury.
At this point, it is necessary to refer to the terms of s.23A Crimes Act 1900. That provision makes clear that the partial defence of substantial impairment, which can apply to a murder charge only, involves an examination of the Accused at the time of the acts giving rise to the charge of murder. Importantly, s.23A(3) says:
"If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section."
There is abundant evidence that the Accused had consumed alcohol prior to the events giving rise to the charge of murder. Any assessment of whether there was an arguable partial defence of substantial impairment would have to put entirely to one side the effect of self-induced intoxication. Dr Furst of course has not entered into that consideration. Dr Furst refers to the possible role of intoxication.
The question then is: Is there any evidence at this point that would suggest that a possible viable partial defence of substantial impairment might become available to the Accused at some time in the future, if the proceedings were to be adjourned for what would involve a period of a year or more before a further trial would take place?
Right now, there is no evidence before the Court to support a partial defence of substantial impairment. The neuropsychological testing says there is no evidence to support it. Part of the problem seems to be the approach of the Accused himself at the time of testing, as described in the report of Dr Hepner. It would seem to be speculative in the extreme to attempt to project what might happen in a further test in the middle of next year, depending upon how the Accused chooses to approach that test. That, I think, accurately summarises where things are up to for the purpose of this application.
The Accused is to face trial for very serious charges, including murder. Where application is made to adjourn a murder trial upon the basis that the defence seeks to explore an issue which may give rise to a defence or partial defence, the Court should be cautious before shutting the Accused out from taking such a step. It has been said that an Accused person should have a reasonable opportunity to prepare his or her case before being called upon to present it: R v Alexandroaia (1995) 81 A Crim R 286 at 289.
At the same time, as was also acknowledged in R v Alexandroaia at 291, there is a strong public interest in a criminal trial, once fixed for hearing upon the basis that the parties were ready to proceed, ordinarily proceeding with expedition. The Court of Criminal Appeal has observed that the significance of that consideration, as expressed in R v Alexandroaia, has been reinforced by the case management provisions which have, since R v Alexandroaia, been placed in the Criminal Procedure Act 1986: Slotboom v The Queen [2013] NSWCCA 18 at [36].
The Crown has approached this application by accepting, appropriately, that if there was a possibility of a viable partial defence of substantial impairment being available, then the Court would adjourn the trial to allow that aspect to be fully explored. I have approached this application with that approach in mind.
I bear in mind that the focus of attention for the purpose of the partial defence of substantial impairment is what the evidence says about the relevant state of mind of the Accused as at 24 April 2016. The neuropsychological testing carried out in June 2017, and which is suggested may be carried out again in June 2018, seems to me to be increasingly remote from that critical timeframe.
There is, as well, the very powerful evidence of self-induced intoxication of the Accused, which would seem to result in the position that, even if some further testing may suggest that there is something that might operate in favour of the Accused, on the current state of the evidence (and, I would think, the inevitable final state of the evidence), that issue would be overwhelmed by the evidence of self-induced intoxication which in the past had given rise to anger and aggression on the part of the Accused towards Ms Kontozis.
I have considered the evidence put before the Court and the arguments which have been advanced. I am conscious that, if the trial was vacated, there would be persons who are witnesses in that trial who will be, the Court may assume, adversely affected by a further period of delay.
I have taken into account the interests of the Accused as well, in the manner which I have outlined.
In my view, there is no proper basis on the evidence to make an order vacating the trial date. I dismiss the Notice of Motion filed in Court on 17 August 2017.
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Decision last updated: 17 April 2018