Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)
File Number(s): 2021/216116
[2]
JUDGMENT
HIS HONOUR: The accused was first arraigned in the Supreme Court on 9 December 2022 on two counts; first, that on 28 July 2021, at South West Rocks and elsewhere in the State of New South Wales, he did intimidate Gregory Hunt with the intention of causing the said Gregory Hunt to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and second, that on the same date, at South West Rocks he murdered Mark Tozer, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
The accused was arrested on 28 July 2021 and has been on remand since then. The matter was initially listed for trial, with a four-week estimate, to commence on 20 November 2023. That date was vacated when it became apparent that the trial estimate was likely to be exceeded, due to a large volume of additional material that was served by the Crown.
On 25 October 2023, Wilson J fixed the trial to commence in this Court on 23 September 2024 at Newcastle, with an estimated length of 10 weeks. On 22 July 2024, the parties were advised that I was to be the trial judge. I advised the parties that there would be a trial readiness hearing on 21 August 2024. It was apparent that, essentially, the accused would not be contesting the physical acts that caused the death of Mr Tozer; and the issues would be whether the partial defences of excessive self-defence, and/or substantial impairment (s 23A of the Crimes Act) were made out. At the trial readiness hearing, neither party raised the prospect of an application for a trial by judge alone.
R v Fuller [2024] NSWSC 1206 | Case summary | Zoe
On 4 September 2024, the defence filed an application for the trial to proceed by way of judge alone, pursuant to ss 132(1) and 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act). The parties were notified that I would hear the application on 11 September 2024.
On that date, following a short hearing, I made the orders sought. The application was not opposed by the Crown. These are my reasons for so doing.
Sections 132 and 132A of the Act, insofar as they are relevant to this application, are as follows:
"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.
…
(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.
…
132A Applications for trial by judge alone in criminal proceedings
(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.
…
(4) Rules of court may be made with respect to applications under section 132 or this section."
The basis of the application was, essentially, issues that counsel for the defence (Mr King) and his instructing solicitor (Ms Knowles) had encountered in the process of obtaining instructions from, and giving advice to, the accused, following the readiness hearing on 21 August 2024.
An affidavit by Ms Knowles was read at the hearing of the application without objection, which provided the background for the application. It stated that the accused had been examined by Dr Gerald Chew, forensic psychiatrist who was retained by the defence, on 2 June 2022, and had been diagnosed, by Dr Chew, of having a borderline personality disorder and a substance use disorder. The Crown retained Dr Kerri Eagle to examine the accused, which she did on 6 January 2023, concluding that the accused "most likely had a personality disorder with borderline and antisocial traits", which was:
"… complicated by his substance use disorder which can also cause and exacerbate emotional problems, impulsivity, impaired judgment, paranoia and anger … [The accused's] presentation, behaviour, mood and mental state appear to fluctuate considerably in the context of his circumstances …"
In a further report dated 27 September 2023, Dr Chew said:
"His mental health impairment means that he is more impulsive (less able to control himself) and less likely to be able to reason about the nature and consequences of his actions. I note that Borderline Personality Disorder often presents with impulsivity and stress-related paranoia which both appear to have been present at the time of the alleged offending impacting his thinking and behaviour."
Ms Knowles stated that she arranged a series of rolling AVL conferences to occur from the week commencing 19 August 2024. She said:
"I have noticed a number of changes in the accused's physical presentation. Notably, he has had a large tattoo placed on his forehead in the name of his daughter … He has had a teardrop tattoo put onto his cheek and his [sic] had prominent 'FTP' tattoos put onto his hands. Whilst I understand that he has taken these actions of his own volition, I am concerned about his appearance.
Generally, but not always, the accused initially presented to me at each visit as a congenial client. However, once the business of his court matter was discussed, he became quick to become over emotional, over excited and overwhelmed. He raised his voice trying to get his voice across and spoke over the top of me and his counsel when he was present with us.
I also observed that the accused became very upset, apologetic, cried and spoke tangentially. At times he would raise his jumper over his face and cease all communication.
As the trial date has come closer, I have observed the accused's mood and emotions to become considerably less and less stable. It has been increasingly difficult to obtain the detailed instructions necessary to mount arguments in response to the proposed tendency evidence relied on by the crown.
The accused was preoccupied at times with the advice that he had received from inmates in the gaol. He advised me that different inmates had told him to do this and or do that.
The accused told me that was becoming increasingly unable to manage in gaol and placed himself in protection citing fear and a feeling of being overwhelmed.
…
At an AVL conference with the accused on 27th of August 2024, it became more obvious to myself and counsel that the accused's mental state had deteriorated to the point that we both formed a view that it might well be impossible for the accused to conduct himself in an appropriate manner during a lengthy jury trial. My concern was, and is, that the high pressure environment of such a trial, when the accused is consistently under the gaze and observation of the jury would result in him acting out, perhaps shouting at witnesses, or the legal practitioners, all of which would be prejudicial to him, even if, perhaps a problem somewhat of his own making, but possibly also somewhat beyond his control.
I am aware that the events which led to the prosecution occurred over three years ago, and that the trial of the accused has already been adjourned on one prior occasion for reasons not of his making. Were the matter to not proceed to a verdict on this occasion it would result in a further lengthy delay Such a result is against the interests of both the accused and more importantly the family of Mr Tozer.
It was in the context of the deteriorating mental state of the accused that myself and counsel raised the possibility of the matter proceeding by way of a judge alone trial."
Ms Knowles noted that communications ensued with the Crown, culminating in advice being received from the Crown on 4 September 2024 that an application for a judge alone trial would not be opposed. At the hearing of the application, the Crown was content to not tender any evidence on the issue.
The immediate issue for determination was whether it was appropriate to grant leave to the accused to make the application, as required by s 132A(1) of the Act. If leave was to be granted, the Court was obliged to make the trial by judge order sought in view of s 132(2) of the Act.
A relevant consideration on the issue of leave, in my view, is whether the grounds for the application justified granting the orders sought in the interests of justice, in a situation which was not unlike that which was before this Court in R v Hadler [2018] NSWSC 1151. In that case, Wilson J heard an application by the accused for a judge alone trial that was brought within time, but which was opposed by the Crown. Her Honour determined that it was, in the terms of s 132(4) of the Act, "in the interests of justice" to proceed by way of trial by judge alone because of "the issue of the risk of the accused descending into florid illness during the course of a jury trial, and a consequential state of unfitness".
A further relevant consideration with respect to the issue of leave is the purpose of s 132A, which is partly to avoid parties engaging in making an application with foreknowledge of the identity of the trial judge. However, had the concerns as to the accused's behaviour arisen before the 28-day cut-off period, even though the parties knew then the identity of the trial judge, the Court would have been obliged to make the order, given that the application was consented to by the Crown.
A matter of concern was the fact that the accused proposed to rely upon the partial defence of substantial impairment, which involves an application of community standards pursuant to s 23A(1)(b) of the Crimes Act. This is a matter that usually mitigates against a trial by jury, since a jury is better placed to make the determination required by to s 23A(1)(b) (see s 132(5) of the Act). In Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229, the Court of Criminal Appeal per Johnson J (McClellan CJ at CL and Fullerton J agreeing) observed at [33] that the terms of s 23A(1)(b) of the Crimes Act "involv[es] a value judgment by the jury representing the community". However, I note that, in spite of the partial defence of substantial impairment being an issue in the trial, had the application been made in time, the Court would have had no power to oppose it, pursuant to s 132(2) of the Act.
Accordingly, I was satisfied that it was appropriate to grant leave to the accused to make the application, which had the effect that I was obliged to make the order sought, pursuant to s 132(2) of the Act.
Following my determination, the defence indicated that it would obtain a fitness report to ensure that, even on the basis of a trial by judge alone, there was no issue, so far as the defence was concerned, of the accused's fitness. A report by Dr Chew dated 18 September 2024 was handed up on the first day of the trial (23 September 2024). Dr Chew was of the opinion that the accused was unfit to be tried if the trial proceeded by jury, but fit if it was by judge alone.
[3]
Orders
I made the following orders on 11 September 2024:
(1) Pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW), grant leave to the accused to apply for an order that he be tried by judge alone;
(2) Pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW), order that the accused be tried by judge alone.
[4]
Amendments
04 October 2024 - Decision date corrected
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Decision last updated: 04 October 2024