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[2013] NSWSC 661
Supreme Court of NSW
2013-05-17
Latham J
Original judgment source is linked above.
Judgment 1The accused, Roger Dean, applies for a trial by judge alone pursuant to s 132 of the Criminal Procedure Act 1986 by way of notice of motion and supporting affidavit filed on 29 April 2013. The application is opposed by the Crown, although to the extent that the accused requires leave to make the application, leave is not opposed. 2The accused is charged with 11 counts of murder and 8 counts of recklessly inflict grievous bodily harm arising out of the setting of a fire at the nursing home where he worked on 18 November 2011. An additional charge of recklessly inflict grievous bodily harm is charged in the alternative to a murder count. The trial is to commence on 27 May 2013. 3Much of the Crown case is not in dispute. It is anticipated that the accused will make formal admissions pursuant to s 184 of the Evidence Act 1995 to the following facts. 4The accused was employed between May 1997 and July 2007 as a registered nurse in various nursing positions with New South Wales Health. He commenced employment at the Quakers Hill nursing home as a registered nurse in September 2011. He worked night shifts on Wednesday and Thursday nights. 5The nursing home is an aged care facility catering for high care residents requiring full assistance with daily living activities. The home consists of 35 separate rooms each containing a number of beds. The building is a large "H" shape and divided into two wings, A wing and B wing. Those wings were further divided into four sections, namely A1, A2, B1 and B2. The rooms in sections A1 (8 rooms), B1 (6 rooms) and most of B2 (6 rooms) each contained four beds. One room in B2 was a double room. A2 has a mix of single (8) and double (2) rooms, As at 18 November 2011 there were 89 residents. 6The external doors including the main entrance to the nursing home were kept closed. Admission required a pin number entry on a keypad. The day code was available to staff and some relatives. At 8 pm each night, the code changed for security reasons and the night code was available only to members of staff. 7There were 16 CCTV cameras installed internally and externally around the nursing home. The cameras were motion activated and on each occasion that the camera was activated or deactivated, the time was recorded on the CCTV hard drive. 8In the event of fire and within 15 seconds of the installed thermal or smoke detectors being activated, the fire alarm system would send a message via telephone lines to the contracted security firm and the emergency services. Simultaneously it caused the fire doors to close. The fire doors separated the nursing home into five zones, namely the central foyer area and the four wings. The fire doors did not lock and access could be gained through them by pushing them after which they would automatically swing closed. 9On 6 September 2011 a fire station officer delivered a training course entitled "Fire Safety in Healthcare Facilities" to staff at the nursing home. The accused attended that course which included a walk around the nursing home indicating the location of all installed fire fighting equipment and the fire and smoke doors, as well as the differences between them and how they function. There was also an explanation as to the purpose of the fire indicator panel and the emergency warning system. 10The drugs of addiction known as Schedule 8 drugs (S8) were stored and dispensed in accordance with strict protocols. The S8 drugs were stored in the treatment room in the central part of B wing between B1 and B2. The room was not used as a treatment room and the door was kept locked. The S8 drugs were kept in a locked cupboard. The door to the room could only be opened by a key on a blue lanyard while the cupboard could only be opened by a key on a red lanyard. The night shift registered nurse was in possession of both keys, but the protocol required both the registered nurse and an assistant nurse to be present in order to dispense the S8 drugs. Each time an S8 drug was dispensed, a drug register kept for that purpose was completed with the details of the patient's name, the date, the time, the type of drug and the quantity. Both the registered nurse and the assistant nurse who were booking out the S8 drugs were required to sign the drug register. Each day the two registered nurses on the afternoon shift were required to conduct an audit of those drugs. 11At about 8pm on 16 November 2011, an audit of the S8 drugs was carried out by the nursing staff on duty. All drugs were accounted for. 12The accused was in charge of the night shift on the nights of 16 to 17 November and 17 to 18 November 2011. On 16 November 2011, the accused started his shift at 10:30pm. Between that time and the end of his shift at 7 am on 17 November, the accused stole 237 Endone tablets and one Kapanol tablet from the treatment room. Both were S8 drugs that were commonly used as pain medication. During the shift, the accused left a note for the facility manager, offering to provide staff clinical supervision sessions to more junior staff. 13On 17 November 2011 at about 7:30 pm the nursing staff conducting the audit of the S8 medications discovered that medication was missing. The clinical manager was contacted. She travelled to the nursing home and conducted a re-audit of the S8 drugs, confirming the missing drugs. At about 10 pm she rang the Quakers Hill police station to report the theft of the drugs. 14At 10:23 pm on 17 November the accused started his shift. During the briefing on the handover of the shift, the accused was told of the missing drugs. Shortly after midnight, two police officers attended the nursing home and were met by the accused who took them to the manager's office in the central administration area. 15The police commenced a preliminary investigation into the theft of the drugs but left after 17 minutes in order to attend to an unrelated urgent incident. 16The clinical manager left the nursing home at 3:43 am, leaving the manager's office locked. There were only two keys to the manager's office, one kept by the clinical manager and the other kept by the facility manager. The paper and computer records relating to the theft and the complaints to police were inside the manager's office. It remained locked until it was opened by a police officer after the fire. 17Shortly after 4:53 am, the accused set fire to a bed in room 19 in A2 wing using a cigarette lighter which had been left in the kitchen by a staff member. At 4:53 am the fire sensors detected the fire in room 19 and activated the alarm. The alarm caused the siren to activate within the nursing home and an automatic message was sent to the Fire Brigade. All the fire doors throughout the nursing home closed and activated the fire alarm panel in the foyer. 18As the fire door closed, the accused walked from A2 wing towards the A1 wing entrance. Between 4:53 am and 5:02 am the accused lit a second fire on the sheet of an unoccupied bed in room 3 in A1 wing, using the same cigarette lighter. Two occupants of this room were immobile and incapable of moving from their beds without assistance. The accused then disposed of the cigarette lighter in a sanitary bin in the A1 wing bathroom. 19At 4:59 am the first Fire Brigade officers arrived at the nursing home. The officers were directed by staff to the fire in room 19 in A2 wing. They extinguished that fire. 20Meanwhile, a resident in room 4 of A wing walked to the door of her room that leads to the hallway on hearing the fire alarm. The patient could not see or smell smoke so she returned to her bed. The accused came to her and said "Come on darling, we've got to get out, we've got to evacuate." The patient objected but the accused started to walk her from the room and up the hallway towards the front door. The patient looked into room 3 where the second fire lit by the accused had taken hold in an unoccupied bed. The patient broke free from the accused and ran into the room saying "We've got to get them out, we've got to get them out." The accused grabbed her and started moving her from the room saying "Don't worry Helen just leave them. We've got to get out. People are on their way to get them." 21At 5:02 am the accused came out of A1 wing. He then moved between the A wing foyer and B wing. In B wing he assisted in the evacuation of some of the residents. He did not tell any Fire Brigade officer or anyone else of the second fire that he had lit in A1 wing. 22At 5:08 am the accused was outside the front entrance doors being directed by firemen to move away from the entrance area. Over the next 10 minutes he remained outside, moving residents away from the entrance to the building. 23At 5:15 am Fire Brigade officers discovered the second fire which was already partially breaching the roof of the nursing home. It had been burning for at least 13 minutes. 24Between 5:20 am and 6:10 am, the accused made three concerted efforts to enter the nursing home through the front doors. On each occasion he was rebuffed by a Fire Brigade officer or police officer. On the last occasion the accused said to a Fire Brigade officer "I need to go inside to get the drug books, I need to get in there." The accused showed a Fire Brigade officer the two lanyards that operated locks to the treatment room and the cabinet. The accused was given permission to enter the building and retrieve the drug books. 25The accused accompanied two fire fighters into the building and went with them to the treatment room. He gave the keys to one of the officers, explained the location of the cabinet and described the two books. He said "We need them. We need to get these out." 26The accused remained in the corridor away from the treatment room and outside the scope of the CCTV cameras. When the Fire officers were unable to open the door they invited the accused to assist. The accused appeared reluctant and complained that he was an asthmatic. He ultimately approached and unlocked the door to the treatment room, entered the room and unlocked the S8 drug cabinet. He removed two drug register books, put them into a yellow shoulder bag and left the building. He said "I need to go home, I need to get Ventolin. I live close by and I really need my Ventolin." 27As the accused was leaving the nursing home, a reporter ran in front of the accused and began filming him. He asked what was happening. Other cameramen came over and there followed a brief interview. In part the accused said "Hi, I am Roger, I am one of the nurses, just there was a fire and I just quickly just did what I can get everyone out and the smoke is just overwhelming, but we got a lot of people out so that's the main thing." In this interview, the accused is coherent, alert and responsive. 28The accused then travelled on foot to his home in xxxxxxxxx. The accused tore up the two S8 registers, placed the remains in a grey plastic shopping bag and then was driven by his flatmate to the vicinity of Douglas Road Quakers Hill. The accused formerly worked at the cheesecake shop in Douglas Road, operated by the accused's flatmate, Mr French. The accused disposed of the grey plastic shopping bag and its contents in a dumpster bin and then returned to the nursing home. 29At about noon, the accused was taken by ambulance to Mt Druitt Hospital. His condition was noted as "presented with sooty residue on his face and clothes, pale skin, and generally distressed." 30At about 2 pm the accused was taken from Mt Druitt Hospital to Mt Druitt police station where he made a written statement. In that statement he described his movements throughout the evening but made no admissions. At about 7:15 pm he was told by police that he was regarded as a suspect. 31Between 6:47 pm and 8:15 pm the accused made a number of calls and sent a number of text messages that were intercepted pursuant to a warrant. In those calls the accused spoke to Mr French and informed him of the police investigation and the fact that he was regarded as a suspect. 32Shortly after 7:50 pm the accused was arrested and cautioned. At 9:50 pm the accused entered into a record of interview in which he admitted lighting the fires. The interview extends over two hours and consists of about 350 questions. The accused provided lucid, rationale responses to all of these questions, including informing the police that he had taken an antidepressant, an antacid and a blood pressure tablet just before the interview. The accused agreed that he had requested to speak to two friends before the interview, that he had been given that opportunity and that he understood that he was under no obligation to speak further with police. 33The accused provided a quite detailed account of his movements throughout the night and the order of events. He was provided with a map of the nursing home and indicated the rooms on the map where he lit the fires. His explanation for lighting the fires was that he had been having quite severe nightmares, he had been suffering from depression for two years and he had attempted suicide "by taking a lot of medication all at once". He had turned to the church and he believed that Satan had urged him to light the fires. 34The accused was asked what medications he had taken. He nominated Aropax, then Lovan and Seroquel. He said he had only been taking Lovan before the night of the fires. He provided the name of his treating doctor. 35He did not think either of the fires would burn out of control and he made no attempt to extinguish them. He described the lighter and how he came to take it from the kitchen and place it in his left pocket. He agreed that he knew of the missing drugs. The accused denied that he had lit the fires in retaliation for dissatisfaction on the part of some staff members over the accused's method of distributing medication. 36Notwithstanding the content of the police interview, the accused now admits that his intention in lighting the fires was to create a distraction to deflect management from further enquiring into the theft of the medication. Moreover, the accused now maintains that he only thought to retrieve the S8 registers from the treatment room after the attendance of the fire fighters and that he destroyed the registers to remove evidence of the missing drugs.
The Issues at Trial 37The Crown case on the murder counts rests on proof of the accused's reckless indifference to human life at the time of lighting the fires and more particularly, at the time of lighting the second fire. The deaths of the victims primarily occurred as a result of the second fire being lit in a ward where the patients were immobile, coupled with the fact that there was a delay of about 13 minutes before it was discovered. 38The circumstances of one of the deaths gives rise to an issue of causation. Two medical practitioners will give evidence at trial directed to that issue. 39Proof that the accused foresaw or realised that lighting the fires would probably cause the death of the deceased but that he did so regardless of that consequence, depends upon the drawing of that inference from a consideration of the accused's conduct before, during and after the lighting of the fires. The Crown contends that that is the only reasonable inference that is available when one has regard to the accused's words, deeds and omissions, from the time of his arrival to commence his shift until the end of the police interview. 40The defence seeks to undermine that inference by reliance upon, in particular, the evidence of a consultant pharmacologist, Professor Christie, to whom the accused has provided instructions concerning his consumption of medication in the days, weeks and months preceding 18 November 2011. In short, the accused contends that the quantity and type of medication he ingested precluded any foresight on his part of the probability of death arising out of the acts of lighting the fires. 41The accused's instructions provided to this expert witness assert that the accused only came to appreciate what he had done as he recovered in prison from the effects of the ingestion of pharmaceuticals. 42It is not necessary or practicable to review the whole of the expert opinion of Professor Christie for the purposes of this application. His report (dated 15 January 2013) and 35 pages of instructions from the accused with respect to the type and quantity of pharmaceuticals he regularly ingested (dated 20 September 2012) are Annexures "A" and "B" respectively to the affidavit in support of the notice of motion. 43It is relevant to note that Prof Christie observes that the accused appears to have been prescribed various psychoactive medications for bipolar disorder, both to stabilise mood and relieve depression, anxiety disorder and insomnia, and that the accused believed he was addicted to benzodiazepines, antidepressants and opioids. Prof Christie describes the accused's "pattern of prescription and consumption of a large range sedatives benzodiazepines and related drugs, sedative antihistamines, opioids and antidepressants prior to and shortly before the fire [as] remarkable in its diversity, the high doses and potential functional drug interactions that may have affected his reasoning and normal function during that time." 44Prof Christie goes on to discuss the effects of benzodiazepines (and other closely related drugs), other sedatives, opioids, anticonvulsants, anti-psychotics and antidepressants. 45Most relevantly, Prof Christie opines that "it is very likely that consumption of these drugs alone (namely, very large doses of benzodiazepines, zolpidem and other sedatives during 17 November) would have diminished his clarity of thought and insight into the significance of his actions. These drugs were combined with a very large dose of opioids which might have, if anything, exacerbated the sedative and cognitive impairing effects of the sedative drugs he consumed. [The accused] also consumed larger than usual doses of antidepressants and mixed several classes of these drugs together that may have interacted adversely with zolpidem or produced distorted ideation themselves. He also consumed large doses of anti-cholinergic drugs (sedative antihistamines, clomipriamine and mebeverine) sufficient to produce a high likelihood of disturbed reasoning and memory. These drugs alone or in combination with the other medications may also have triggered hallucinations or delusional thinking." This opinion is qualified to the extent that Prof Christie cannot rule out the effects of tolerance to these drugs. 46In response to this proposed evidence, the Crown has provided a report under the hand of Judith Perl, forensic pharmacologist, dated 9 May 2013. Dr Perl agrees with Prof Christie's account of the potential effects of the ingested drugs and the development of tolerance to excessive use of some of those drugs. Furthermore, she agrees that many of the drugs ingested could very likely diminish clarity of thought and insight. The point of departure resides in Dr Perl's view that the quantity and type of drugs said to have been ingested by the accused would lead to a fatal outcome (notwithstanding any tolerance) or at the least, there would have been such a profound impairment of his cognitive and motor functions that one would expect to see some overt signs of significant intoxication on the CCTV footage taken from the nursing home, the accused's interview by the press and his later interview with police. 47In the light of no significant symptoms of cognitive or physical impairment in the course of the accused's activities over 17 and 18 November, and in the light of no obvious impairment of cognitive or motor functions or obvious signs of significant benzodiazepine and opiod withdrawal in police custody records and Justice Health records, Dr Perl disputes that there was any medication or drug use of the order claimed by the accused that could have diminished his cognitive functions to the extent that his reasoning and insight would have been impaired. 48A further report under the hand of Dr Michael Diamond, consultant psychiatrist, dated 13 May 2013 notes that "the quantity of medication purported to have been consumed is not consistent with the observable (visual records) or the witness statements about the accused" at the relevant times. Dr Diamond observes that the accused's interview with police shows "purposeful, rational, attentive, considered interaction in the course of an interview lasting over 90 min". The account of medications taken, both in quantity and in type, is considered inaccurate on the basis that the accused was capable of conducting himself appropriately, forming judgments and interpreting his environment without any significant impairment to his mental functioning. 49It is tolerably clear from these competing reports that a significant factual issue at trial will be the truth and accuracy of the accused's instructions to his legal representatives concerning the extent of his abuse of pharmaceutical drugs.
The Basis of the Application 50The affidavit in support of the application submits that "much of the evidence is of a highly technical nature and is therefore appropriate for trial by judge alone. " It is further submitted that the determination of the issue of foresight of the probability of death does not call for the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness. 51On the hearing of the application the basis was somewhat broadened by the Senior Public Defender. It was submitted that when the highly technical nature of the expert evidence is combined with the natural prejudice arising out of the deaths of 11 elderly people in a nursing home, the interests of justice required trial by judge alone.
Consideration 52The overriding consideration in determining the application is whether it is in the interests of justice to grant it. There is no onus, other than evidentiary, upon the accused to justify the grant of a separate trial : R v Belghar [2012] NSWCCA 86. 53The legislation stipulates some grounds for refusal, namely, where the trial involves factual issues that require the application of objective community standards, including such standards as reasonableness, negligence, indecency, obscenity or dangerousness. These are by no means exhaustive. 54What is in the interests of justice in any given case does not readily lend itself to definition. At the very least, it involves the facts and circumstances giving rise to the charges, the nature of the charges, the complexity and number of issues at trial, and the interests of the accused and the Crown in a trial conducted according to law. 55In R v King [2013] NSWSC 448, Justice Bellew was confronted with an application for trial by judge alone in somewhat similar circumstances to the present case. The accused's capacity to form an intention to kill while under the influence of methylamphetamine and alcohol was the subject of expert pharmacological evidence. That opinion was contrasted with the objective evidence of the accused's conduct before and during the act causing death (beating, kicking and stomping the deceased). The primary basis of the application before Bellew J was that the issue of the accused's intention did not involve the application of objective community standards. 56In response to that submission, his Honour said :- 52 In determining whether there is an issue which requires the application of an objective community standard, the circumstances of the particular trial must be taken into account. The various matters to which I have referred all combine to form part of the circumstances in which the Crown will submit that the accused killed the deceased, intending to kill her, or intending to inflict grievous bodily harm upon her. Viewed in that way, the circumstances of the case put by the Crown, and the issue of intention in particular, will attract the application of objective community standards in the sense contemplated by Heydon J. In particular, the jury will be asked to have recourse to their shared values about the circumstances in which the accused's actions occurred, as well as the implications of those actions. In my view, the fact that in Belghar the issue was one of intention, and the fact that McClellan CJ at CL observed (at [100]) that such issue did not, in the circumstances of that case, require the application of community standards, does not lead to the conclusion that this will always be the case when an issue of intention is raised. 57The reference to Heydon J arises out of the decision of AK v The State of Western Australia [2008] HCA 8. At [95], Justice Heydon includes intention among those concepts that call for the application of objective community standards, on the basis that "shared values and assumptions about the implications of actions and the circumstances in which those actions occur may be a safer guide to culpability" than an analysis of the meaning of intention : see Buxton, "Some Simple Thoughts on Intention", [1988] Criminal Law Review 484 at 495. 58The Crown in King relied upon this aspect of Heydon J's judgment and the Crown relies upon it here. It is right to acknowledge that Justice Heydon's observation in this respect was not endorsed by any other member of that bench and that McClellan CJ at CL accepted that the issue of intention did not involve the application of community standards in the circumstances applying in Belghar. Like Bellew J, I am not persuaded that the issue of intention can never involve the application of objective community standards. I also note that the basis of the decision in Belghar was that the trial judge determined the application in the absence of appropriate evidence and without considering whether such prejudice as was found to exist could be neutralised by directions. 59The more compelling feature of the instant case is that the critical factual dispute relating to the extent of the accused's ingestion of drugs must be resolved to a large extent by an assessment of the accused's credibility and reliability. It is axiomatic that the accused will have to provide evidence of the scope of his drug-taking in order to ground the expert opinions. In that regard, the observations of Lord Devlin, to whom Heydon J referred in AK v The State of Western Australia at [94] bear repeating :- [T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers. 60Assuming that the accused's account at trial is rejected out of hand or that it is partially accepted, there is nonetheless evidence of the ingestion of some medications by the accused (for example, in the interview with police and from his flatmate) which call for expert pharmacological and psychiatric evidence. Disregarding for present purposes how that factual dispute is resolved, I would not embrace the description of the pharmacological evidence as "highly technical". I accept that it may be complex, in the sense that there are many drugs, the effects of which vary with dosage, frequency of use and their interaction with each other. However, the preparation of a schedule which lists each drug by name, identifies its active ingredient, its therapeutic purpose, the dosage and frequency reported by the accused, and the anticipated effects of that ingestion may go a long way towards aiding a jury's comprehension of that evidence. 61Providing aids towards juror comprehension is part and parcel of trial by jury. It allows the wider community to appreciate the basis of a verdict and thereby accept the result. The Crown points to the importance of the participation by the community at large, through the selection of a jury at random from their midst, in the administration of criminal justice in this State. That participation is generally in the interests of justice, in the sense explained by Deane J in Kingswell v The Queen [1985] HCA 72 ; 159 CLR 264 at 301 :- 51. Trial by jury also brings important practical benefits to the administration of criminal justice. A system of criminal law cannot be attuned to the needs of the people whom it exists to serve unless its administration, proceedings and judgments are comprehensible by both the accused and the general public and have the appearance, as well as the substance, of being impartial and just. In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings. Equally important, the presence and function of a jury in a criminal trial and the well-known tendency of jurors to identify and side with a fellow-citizen who is, in their view, being denied a "fair go" tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness. Few lawyers with practical experience in criminal matters would deny the importance of the institution of the jury to the maintenance of the appearance, as well as the substance, of impartial justice in criminal cases (cf. Knittel and Seiler, "The Merits of Trial by Jury", Cambridge Law Journal, vol. 30 (1972), 316 at pp.320-321). 52. The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, ............ and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob. 62Deane J went on to note that "contemporary circumstances have raised new questions about, and placed additional strains upon, the institution of the criminal trial by jury." His Honour accepted that there were areas of scientific and technical knowledge that ordinary members of the community may find challenging, although these comments were made in the context of the jury being deprived (as was then the case) of the transcript of evidence. Those reservations are neutralised to some extent by the provision of the transcript of expert evidence to juries. 63I do not regard the nature of the expert evidence in this case as so technical that it is beyond the appreciation of a jury or that its complexity would give rise to the risk that a properly instructed jury might fail to engage with the matters under discussion. 64It remains to consider whether the expert evidence in combination with the natural prejudice occasioned by the trial of the accused on 11 counts of murder warrants a judge alone trial. 65Unfortunately, trials for multiple murders are not unknown to the administration of criminal justice. Notorious trials such as that relating to the murder of 7 young tourists by Ivan Milat (R v Milat NSWCCA 26 February 1998) in circumstances far more heinous than the instant case have been conducted before a jury. It is accepted by the common law that juries follow instructions from the trial judge that impress upon them the importance of deciding the matter on the evidence in the trial and putting to one side any emotional responses they may have. Robust and repeated instructions to the jury panel that invite any prospective juror to disqualify himself or herself from the panel if unable to put prejudices aside are capable of markedly reducing the risk of bias. 66Moreover, the deaths of the victims in this case were not the product of a direct, deliberate and malicious assault upon them. The opprobrium towards an accused in those circumstances must naturally be greater than that engendered by a number of deaths indirectly brought about by the actions of the accused. 67It follows that the broader basis of the application also fails. 68Leave is granted to make the application out of time. The notice of motion is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2013
R
Dean