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[2014] NSWSC 1781
Supreme Court of NSW
2014-12-05
Rothman J
Original judgment source is linked above.
Judgment 1HIS HONOUR: By Motion, notice of which was filed and served on 30 October 2014, the accused, Colin Maxwell Farrow (the applicant) applies for an order that the trial allocated to me for hearing be heard by a judge alone and not by jury. The Crown opposes that course. 2The applicant is charged with murder, said to have been committed at Wollongong on 11 April 2013. 3The applicant relies upon the affidavit of Joanne Harris, solicitor. The trial is due to commence on 2 February 2015. 4The affidavit states that the sole issue for determination at trial is limited to whether the applicant has available to him a defence of mental illness. There are psychiatric reports filed and upon which each of the Crown and the applicant relies. 5The applicant relies upon four reports of Dr Westmore dated 16 September 2013, 29 March 2014, 23 August 2014 and 15 November 2014. The Crown relies upon the reports of Professor Greenberg dated 26 April 2014 and 7 September 2014. 6It is necessary to set out the facts as the Crown alleges them, at least in summary form, for the purpose of revealing the nature of the trial and the evidence that may need to be adduced.
Facts 7In the early afternoon of Thursday 11 April 2013, members of the public called the police reporting a motor vehicle being driven erratically in the Tarrawanna area. The vehicle was described and its behaviour described. 8Shortly after the calls were received, a witness took a number of photographs of a male who exited the car after mounting a nature strip, entering a grass reserve and careering down a grass hill stopping just before the creek. 9Police attended, viewed the photographs and the vehicle, which was locked and secured. The front passenger tyre of the vehicle had disintegrated. 10At about 5.20pm on 11 April 2013, police attended at the address of the owner of the vehicle. On arrival, a neighbour approached the police with concerns for the welfare of the resident, because she had not collected her son from school that afternoon. 11While at the address, police observed a red substance, believed to be blood, on the carpet outside the unit and in common areas. Police forced entry into the unit with the assistance of fire brigade personnel that had been contacted. Inside the residence police observed further amounts of red substance believed to be blood and what looked like drag marks. 12Police then returned to the reserve and the motor vehicle, opened the boot of the motor vehicle and found the naked body of a deceased female. It was wrapped in bedding linen. The female's hands were bound at the rear; she was gagged with gaffe tape and tied up with rope. The victim had multiple stab wounds, predominately around the chest and neck area, and her head was covered with a pair of boxer shorts. 13Police identified the victim by use of finger prints and, on examination of the interior of the vehicle located a mobile phone that was later identified as belonging to the applicant. Police also discovered a pick and shovel on the backseat of the vehicle and a number of bags containing various items. The applicant purchased the pick and shovel from Bunning's Warehouse in Wollongong earlier that day. 14The applicant and the deceased were known to each other, having been introduced by mutual friends some 6 to 9 months earlier. Apparently, the applicant and another visited the deceased to obtain drugs. 15The evidence establishes a link between the applicant and the gaffe tape, electrical tape and rope similar to or identical to the items used on the deceased and other equipment found in the motor vehicle. Evidence also establishes that the applicant had sought to withdraw money from his bank account but there were insufficient funds. 16Within a couple of days of the discovery of the body, police executed a search warrant on the premises at which the applicant resided and discovered in a common area, downstairs from the room occupied, what they believed to be trail of blood. In the room rented by the applicant, police located various documents bearing the applicant's name with sharpening stone, further lengths of gaffe tape, various knives and other implements. 17Also located in the room occupied by the applicant was a handwritten note, containing details of what police suggest are three different person, one of which is the deceased, with notations suggesting the advantages and disadvantages of causing harm to each or all of them. There was also a handwritten list of items being mask, gaffe tape, gloves, pliers, garbage bags, hacksaw and blades, spades/entrenching tool and a bottle of ammonia. The list finishes off with "Be THOROUGH, Be METHODICAL and most of all, BE CAREFUL". 18The aforesaid list and note are, it is said by the Crown, matters that go to pre-meditation and planning by the accused. 19The accused was arrested on 17 April 2013. 20The affidavit of Ms Harris, read on the Motion, and uncontested, attests to the fact that the only issue in the proceedings and the sole issue for determination at trial is whether the applicant has available to him a defence of mental illness. 21As earlier noted, there is a difference of opinion between the experts. Dr Westmore, I am informed, has significant availability issues associated with the trial, which availability issues are not of his own making and relate to certain health issues. It is unnecessary to detail the health aspects of which the Court has been informed. 22The Crown, most appropriately and reasonably, made it clear that they would, in any jury trial, accommodate those availability questions. The attitude of the Crown is to be commended and applauded. It is necessary for me to determine the matter on the basis of principle.
Principles to be Applied 23An application of this kind is governed by the provision of s 132(4) of the Criminal Procedure Act 1986. Section 132 of the Criminal Procedure Act is in the following terms: "s 132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order) (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means." 24As stated earlier, the Crown does not agree to the applicant being tried by judge alone, as a consequence of which the Court must consider whether "it is in the interests of justice" for the trial to be conducted by judge alone. The principles were discussed by the Court of Criminal Appeal in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 (see also R v King [2013] NSWSC 448; (2013) 228 A Crim R 406; R v Dean [2013] NSWSC 661; R v Stanley [2013] NSWCCA 124; R v Villalon [2013] NSWSC 1516; R v McKnight [2014] NSWSC 398; and R v Gittany [2013] NSWSC 1503). 25In R v Gittany, McCallum J summarised the principles in the following passage: "[5] Section 132(5) provides: (5) Without limiting subsection (4), the Court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. [6] In the decision of the Court of Criminal Appeal in R v Belghar [2012] NSWCCA 86; (2012) A Crim R 1, McClellan CJ at CL expressed the view (at [96]) that s 131 does not have the effect of creating a presumption that a criminal trial should be with a jury, casting a burden of proof on an accused person to establish otherwise. The extent to which those particular remarks carried the agreement of the other two members of the court is unclear. Each agreed with his Honour that the primary judge had fallen into error but preferred to express no concluded view as to 'the wider issues raised by the question of whether a trial should be by jury or by judge alone': at [117] per Hidden J; at [122] per Hislop J. [7] In a short statement of additional remarks, Hidden J thought it unhelpful to speak about presumption or an onus, noting that the scheme of the statute is to require the accused to raise material leading to the conclusion that it is in the interests of justice to depart from that mode of trial. His Honour also noted that, whilst the institution of trial by jury has historically been for the protection of the accused, the statute recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. In that context, his Honour adopted the remarks of Chesterman JA in R v Fardon [2010] QCA 317 at [81] that an accused cannot have a trial by judge alone 'for the asking'. [8] However, in R v Stanley [2013] NSWCCA 124, a unanimous Court of Criminal Appeal cited the judgment of McClellan CJ at CL in Belghar at [96] as authority for the proposition that 'the interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made': per Barr AJ at [42]; Macfarlan JA and Campbell J agreeing at [1] and [2] respectively; and see R v Dean [2013] NSWSC 661 at [52] per Latham J. Accordingly, that must now be taken to be a binding statement of principle. [9] It is acknowledged that the accused does bear an evidentiary burden: see Stanley at [42] and Dean at [52]." 26As is made clear from the foregoing, the provisions of s 132(4) relating to the considerations of the "interests of justice" are qualified by the consideration that the trial will involve a factual issue that requires the application of objective community standards including reasonableness, negligence, indecency, obscenity or dangerousness. 27None of the issues for determination in this trial require aspects of reasonableness, negligence, indecency, obscenity or dangerousness or issues of that kind. Nevertheless, the Crown submits that an examination of the expert reports shows that the determination of the mental illness defence will depend not only on the reconciliation of or preference for one or more of the experts, but the determination of the genuineness or disingenuous of the applicant's purported psychiatric symptoms.
Consideration 28There is no doubt that a judge alone trial will be more expeditiously determined (at least measured by the time taken to adduce the evidence) than would be the determination of a jury. At the moment there are potentially 155 witnesses of the Crown. 29If the matter were to proceed by judge alone, it is likely that most, if not all, of the evidence relating to objective facts can be adduced by the calling of no more than 10 witnesses. Such a process is unlikely if the matter were to be conducted as a jury trial. 30Nevertheless, the importance of the jury in the finalisation of and determination of criminal guilt is an important factor. I do not suggest that judge alone trials must be exceptional, but a jury trial not only involves a degree of finality recognised by the law, it also involves the involvement of the community in the determination of criminal conduct. That latter aspect is important to the interests of justice and the administration of justice. That factor must be weighed into the equation in an issue of this kind. 31The objective facts (i.e. the facts other than the issues related to the mental health of the applicant) involve a number of matters that create issues in the jury trial. First, it involves an extremely violent and seemingly confronting offence, even by murder standards. 32Secondly, it involves evidence as to the use of drugs and the process of dealing in drugs by the applicant and the deceased. 33Thirdly, one of the defences of the applicant (as it applies to the previously mentioned note), which remains a matter even on the issue of mental illness, is the prior criminal conduct of the accused and his tendency and life as a "thief". 34All of the foregoing are matters that are and will be the subject of jury trials from time to time. Further, most of the foregoing are matters that may be the subject of a criminal trial, even if they were all to combine in one trial, as is the case in these proceedings. 35The question of the duration of the trial, while a matter for the administration of justice, in my view ought not, by itself, be given great weight in the balance or weighing exercise that must be involved in determining the issues under s 132 of the Criminal Procedure Act. Otherwise, all trials would be by judge alone. 36Notoriously, a jury trial takes longer because counsel cannot assume an experience in the issues to be tried that can be assumed when the matter is being dealt with by judge alone. 37As the Crown correctly asserts, the question of whether the applicant is, in this case, genuine in his statement of symptoms is a matter in which juries are invariably involved in criminal trials. It is not a matter which peculiarly, or even preferably, should be determined by a trial judge. 38Nevertheless, it seems that the most crucial issue to be determined is the resolution of the different opinions expressed by the expert witnesses. While that may be determined on the basis of a finding of disingenuousness in the applicant; it may not. 39In a matter such as this, where the crucial matter is the mental illness of the applicant and there is competing expert evidence involving, to some extent, acceptance of the genuineness of the symptoms, a jury verdict will not provide the basis for the finding of guilt, if guilt were to be found, which may, itself, in a case such as this, render the process unfair to the applicant and otherwise than in the interests of justice. 40Of itself, such a factor would not satisfy me that a judge alone trial should be conducted. However, where the issue may fall to be determined on the basis of which of two experts is to be preferred and one of those experts, even with the cooperation of the Crown, will have serious availability issues and may, if common experience can be utilised, be under some serious inconvenience during the giving of evidence, there is a real danger that the jury will determine the matter not on the basis of the expert evidence, but on the basis of the ability of one or other of the experts to give evidence that is more compelling or convincing in an irrelevant sense. 41My preference, in criminal trials, is for guilt to be determined by a jury and not by a judge sitting alone. Nevertheless, in the circumstances of these proceedings, which include the fact that no issue is to be determined, other than the mental illness of the applicant, and the indisposition of the expert witness qualified by the applicant I am satisfied that it is in the interests of justice that the matter be heard by judge alone. While some aspects of the factual issues may require the application of objective community standards, I do not, as a consequence thereof, refuse to make an order of the kind required by that satisfaction. 42The Court makes the following orders and directions: (1)The trial of Colin Maxwell Farrow on the charge of murdering Linda Jane Stevens be heard and determined by judge alone, pursuant to the terms of s 132 of the Criminal Procedure Act 1986; (2)The Crown and counsel for the accused confer as to the most convenient course for adducing evidence of facts not to be controverted in the course of the proceedings; (3)The trial of Colin Maxwell Farrow, for the aforesaid charge, be heard commencing 10am 3 February 2015; (4)The parties have liberty to apply on 3 days' notice.
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R
Colin Maxwell Farrow