R v Hadler

The Statutory Framework

1. By the operation of s. 131 of the Criminal Procedure Act 1986 (NSW) [the Act] the ordinary mode of trial in New South Wales is trial by jury. That position is displaced only where a party makes an application for a trial by judge order pursuant to s.132 of the Act, and such an order is made.
2. Section 132 provides, 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.
3. Section 132A of the Act imposes time limitations on the making of an application pursuant to s 132, but that provision poses no barrier to this application.
4. The test to be applied to the question of the making of the order in circumstances where, as here, the prosecution opposes a judge alone order, is that set out by s.132(4) of the Act. To make an order, the Court has to "consider" that it is "in the interests of justice" that the trial be heard by a judge sitting alone.
5. What is mean by "the interests of justice" is not the subject of explanation in the Act.

The Submissions of the Parties

1. The accused submits that it is in the interests of justice that he be tried by a judge sitting alone for a number of reasons which, particularly when taken together, militate in favour of such a conclusion. He refers to his lengthy history of mental illness, involving numerous admissions to psychiatric facilities and a complex treatment history. He does not dispute that he stabbed and killed Mr Hamilton, and asserts that the availability of the special verdict will be the issue for the tribunal of fact to determine.
2. His history is such that there are real concerns as to his continuing capacity to participate in his trial if it is heard before a jury, having regard to the typically greater length of a jury trial than one which proceeds before a judge alone, and the lesser flexibility that attends the conduct of a trial before a jury.
3. The issue to be determined is confined to the question of the accused's capacity at the relevant time to fully comprehend the moral wrongfulness of his act; this involves the application of a test which is both factual and legal, and which is not one quintessentially for a jury. There are no issues to which the application of community standards will be relevant; there are no issues that will turn on the assessment of the credibility of individual witnesses.
4. Finally, the accused has expressed concern that a jury may find his use of illicit drugs at around the relevant time, and his failure to adhere to prescribed treatment, to be blameworthy, thus leading to potential prejudice against him.
5. The applicant concedes that, should the tribunal of fact not accept that he was mentally ill at the time of Mr Hamilton's death, he will advance the partial defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW), a defence that does involve the application of community standards. He argues, however, that this is simply one of the factors to be considered by the Court in determining the application.
6. In opposing the application, the Crown principally points to the question of the availability to the accused of the alternative partial defence of substantial impairment, submitting that, should it be necessary for the tribunal of fact to determine this issue, it will be necessary to apply community standards. Section 132(5) of the Act provides that a court may refuse an application for a trial by judge alone because there are issues of fact to be determined by application of objective community standards. The Crown contends that the collective wisdom of a jury is of considerable value in determining such a question.
7. That wisdom is also of relevance in the Crown's submission to the principal issue for determination, the availability to the accused of the defence of mental illness. The Crown contends that it will be necessary for the tribunal of fact to assess evidence of the accused's conduct at the material time, and draw inferences from that evidence as to his state of functioning, and comprehension of the moral wrongfulness of his acts. The collective life experience of a jury of twelve would be a valuable resource in this task.
8. The Crown does not concede that any issue of prejudice arises in this matter, particularly having regard to the presumed capacity of jurors to follow instructions from the trial judge.

Consideration

1. A trial by jury has historically been held to be one with significant advantages to an accused person. Those advantages were considered in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, a decision which drew upon the observations of Lord Devlin in Trial by Jury (1966, revised edition). Although some might regard the phrase as hyperbolic, Lord Devlin had there described jury trials as the "lamp that shows that freedom lives" (at 164).
2. The advantages included the supposed superiority of a jury in assessing defence points, including those which might be unreasonable or muddleheaded; a jury's asserted superiority in assessing issues of credibility; its capacity to "stretch" the law, something not open to judges; and its capacity to bring in a perverse verdict, also being a course not open to a judge.
3. Conversely, it has been observed that many jurors may be unused to tasks requiring intellectual rigour, and be unable to follow and recall evidence given over an extended period, and apply complex directions of law to that evidence. Further, unlike a judge, who must give comprehensive reasons for his or her decisions, thus facilitating appellate review, the verdict of a jury is entirely inscrutable.
4. The presumed advantages and disadvantages of a jury trial as compared to a judge alone trial were considered at length by McLellan CJ at CL in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86.
5. In circumstances where there is a single issue in dispute, as here, many of what might be regarded as the usual advantages and disadvantages of a trial by jury as opposed to a judge alone trial take on lesser significance.
6. Here, the accused does not dispute having committed the physical acts which led to the tragic death of Mr Hamilton, and will take no issue with evidence going to that aspect of the matter; the only issues for the tribunal of fact will be those associated with the accused's mental state, and its relevance to his conduct.
7. The accused has made plain his intention to assert that he is not guilty by reason of mental illness. That will give rise to the question of the availability to him of the special verdict provided for by s 38(1) of the Mental Health (Forensic Provisions) Act 2010. The section is in these terms: 38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.
8. The defence is frequently referred to as a "M'Naghten defence", nomenclature derived from the statement by Lord Tindal in R v M'Naghten (1843) 10 Cl & Fin 200; 8 ER 718 at 722, 723 of the nature of a defence on the basis of insanity. His Lordship there said: "... to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
9. A "disease of the mind" comprehends some illness, disorder or disturbance of the mind, but excludes transient states such as high passion or intoxication, including intoxication from the use of illicit drugs. In The Queen v Falconer (1990) 171 CLR 30 at 52, Mason CJ, Brennan and McHugh JJ quoted from the decision of Radford v The Queen (1985) 42 SASR 266 wherein it was stated that disease, disorder and disturbance of the mind is synonymous with mental illness. King CJ said in Radford, "The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'effect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly terms mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms."
10. In Radford, schizophrenia was recognised as a disease of the mind.
11. Whilst each of Drs Dayalan, Adams, and Furst have opined that the accused was suffering from a disease of the mind at the time of the commission of the alleged offence, the question of whether the accused's state was such that he falls within the concept of mental illness will be a matter for the tribunal of fact, and not for the psychiatrists, to determine. As Johnson J said in R v Fang (No 3) [2017] NSWSC 28, at [62], The definition of what constitutes a mental illness is a matter of law: The Queen v Falconer at 49; Woodbridge v R [2010] NSWCCA 185; 208 A Crim R 503 at 530 [86]. What will constitute a "disease of the mind" is a matter to be determined by law, not psychiatry: R v Kemp [1957] QB 399 at 406.
12. Plainly, that determination will be significantly informed by the psychiatric evidence which is placed before the Court.
13. To comprehend the wrongfulness of an act the accused must understand that it is morally wrong according to the ordinary principles of reasonable people, and not that the law decreed it to be wrong: The King v Porter [1933] HCA 1; 55 CLR 182, at 189-190; Stapleton v The Queen [1952] HCA 56; 86 CLR 358 at 367-368.
14. It will be necessary for the tribunal of fact to consider whether the accused knew at the time that his act was morally wrong in that sense. That will involve consideration of the medical evidence, but also the evidence that relates to the accused's conduct, and what his conduct may say about his state of mind.
15. Since there is no issue taken with witness accounts of the accused's conduct, there will be no questions of credit to be resolved.
16. Whilst the assessment of the issues in contention here will involve the consideration of witness accounts of the accused's conduct, together with consideration of the evidence of expert witnesses, I accept that determination of whether or not an accused person had a mental illness at the relevant time is not one which involves the application of community standards, and not one quintessentially for a jury.
17. Although there is likely to be some complexity to questions of this kind, I do not regard them as being beyond the capacity of a properly instructed jury to understand and decide.
18. The potential role of self-induced intoxication may well feature in the question of the accused's state of mind at the time, since there is evidence that he was using illicit drugs at around the time of the relevant events, and this could have had a role to play in his mental state. It is submitted by the accused that this aspect of the case, together with his non-compliance with a treatment regime, could lead to a jury being prejudiced against him.
19. Whilst that may be so, it seems to me to be largely speculative. As was observed in Belghar, The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995 s 144), is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial (at [101] - [102] per McClellan CJ at CL, Hidden and Hislop J agreeing on that issue).
20. Concerns of prejudice also disregard measures available to a trial judge to counter potential prejudice. The Jury Act 1977 (NSW) incorporates a number of provisions which operate to ensure that jurors are drawn from a wide cross section of the general community (ss. 9 and 12) and that their selection for service is completely random (ss. 12, 25, and 38(1)). Section 38 gives wide powers to the Sheriff and to the court for potential jurors to be excused. By virtue of s.38(7) of the Jury Act 1977, any court empanelling a jury to hear a criminal case must direct the Crown to give the jury an outline of the nature of the charge, and call on the members of the jury panel to apply to be excused if they cannot bring an impartial mind to bear on the issues.
21. There is a significant measure of protection afforded to the parties in a criminal trial by these provisions, and the strong likelihood is that any potential juror offended or dismayed by the nature of the conduct alleged against the accused or unable for some other reason (such as prejudice against drug users) to consider the issues in the trial objectively and impartially will be identified and excused.
22. It would be open to the trial judge to articulate that feature of the trial to the jury panel present at empanelment, and ask any person who could not bring an unbiased mind to bear upon the issues in light of that anticipated evidence, to identify him or herself, with a view to excusing such persons from the ballot. The trial judge will, as a matter of course, give directions to the jury as to the requirement for each juror to act impartially, without emotion, prejudice, or bias.
23. I do not regard this matter raised by the accused to be one of any real significance in determining the application.
24. The question of the availability of the partial defence of substantial impairment does involve the application of community standards and, ordinarily, is one best suited to determination by a jury drawn from members of the community. That is not, however, determinative of the application made by the accused; it is simply one of the matters to be considered.
25. It is undoubtedly the case that a trial without a jury can be heard more quickly and efficiently, and with more procedural flexibility than is so for a jury trial. That might be regarded as a feature common to all applications for a trial by judge alone. It is not of itself a matter militating in favour of a trial by judge, but it is a relevant consideration.
26. The phrase "in the interests of justice" is one which imports a wide and likely open-ended sweep of issues. The phrase is commonly used, and may comprehend many factors: State of Western Australia v Rayney [2011] WASC 326. It has been regarded as undesirable to attempt to define it: O'Hare v DPP [2000] NSWSC 430. In the present context, the interests of justice must comprehend the interests of the accused, the Crown, and the community, as well as other wider considerations of justice. What may be in the interests of justice in a particular case will depend on all of the facts and circumstances pertaining to that matter.
27. Many of the issues raised by the accused in support of his application are matters which do not, in my view, militate in favour of his trial being conducted before a judge sitting without a jury. Whilst a judge may more readily comprehend forensic medical evidence than can a jury, and more quickly interpret that evidence in light of factual matters, the task is by not one which is beyond a jury. This is not a matter in which highly complex or technical evidence will be given; forensic medical evidence is sophisticated, but not incapable of comprehension by the average lay person.
28. The question of substantial impairment is one which, arguably, is best determined by representatives of the community applying the standards of ordinary reasonable people. This may well be an issue in which the collective wisdom of twelve ordinary citizens is a better resource to bring to bear on the resolution of a question of this nature, than a single, legally trained, mind.
29. I do not consider that there is any real risk that a jury would be incapable of setting aside feelings of prejudice that might arise as a consequence of the accused's drug taking, and his failure to conform to his treatment regime, as a judge routinely must in the course of his or her duties. The criminal justice system rests on the notion that jurors will do as directed by the trial judge; amongst the directions standard to a jury trial is the requirement for the members of the jury to set aside all emotion and prejudice and determine the issues on the basis of the evidence, without bias.
30. It must be assumed that jurors will follow the directions of law given to them by the trial judge: Gilbert v The Queen (2000) 201 CLR 414 at [31]; R v Milat NSWCCA 26.2.1998 unreported; R v Bell NSWCCA 8.10.1998 unreported; Long v R (2002) 128 A Crim R 11; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko (2002) 132 A Crim R 371; R v D'Arcy (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 336; R v Jamal (2008) 72 NSWLR 258; (2008) 191 A Crim R 1.
31. In my conclusion, none of these features of this matter support a conclusion that it is in the interests of justice to grant the accused's application.
32. However, there is one feature that of itself suggests that it is in the interests of justice to proceed by way of trial by judge alone: that is 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.
33. Each of Dr Dayalan and Dr Adams considered the accused's fitness to be tried; each concluded that he was fit.
34. Dr Dayalan observed that, with the benefit of consistent medical treatment in custody, the accused's mental state had improved. He was able to maintain concentration during his two hour interview with Dr Dayalan, and retain information that was given to him. The doctor concluded that the accused would be able to adequately participate in his trial. However, he observed that, although the risk could be reduced by a continuation of abstinence from illicit drugs and the maintenance of a proper medication regime, The stress of the trial may have an adverse effect on his mental state and it would be difficult to predict with certainty if Mr Hadler would have a relapse of acute psychosis during the course of the trial.
35. The "trial" to which Dr Dayalan referred seems to have been a jury trial.
36. Concern was also expressed by the accused's solicitor, who has found in her dealings with him that he exhibits high levels of anxiety about the legal proceedings against him, and that his anxiety appears to have an adverse impact upon his comprehension and retention of information.
37. This evidence, not challenged by the Crown, gives rise to a concern that the stressful nature of the forthcoming trial could lead to the accused becoming floridly ill, and potentially unfit to be tried. Were that to happen during the course of the trial one can readily foresee the situation arising where the jury would be discharged without verdict and the matter would proceed to a fitness inquiry: ss 9 and 10 of the Mental Health (Forensic Provisions) Act. If that were to occur, the finalisation of the question of whether the Crown can prove the accused's guilt of the charge to the requisite standard would be delayed, and potentially delayed for a lengthy period.
38. Although any such delay would, in those circumstances, be necessary, a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome.
39. Any criminal trial must be highly stressful for an accused person (as well as for others involved in the process). I do not think it is controversial, however, that a trial before a jury is more stressful than a trial before a judge alone. A jury trial is necessarily longer than is a trial before a judge alone because of the differing nature of procedure that applies in each. There is a greater level of formality, and a lesser capacity for flexibility when sitting with a jury. These features of a jury trial all tend to heighten the anxiety associated with a criminal trial.
40. On that basis, it is in my view in the interests of justice to proceed with the accused's trial in the most efficient and flexible way possible, so as to minimise the prospect that any trial would not be able to be completed due to the risk noted by Dr Dayalan manifesting, with the accused becoming unfit to be tried.
41. For that reason, I propose to grant the accused's application for his trial to be conducted by a judge sitting alone.

orders 1. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) I order that the trial of Michael Hadler for the murder of Brian Hamilton, on 23 September 2016, at Bass Hill in the State of New South Wales, be tried by judge alone.

Amendments 03 August 2018 - Reformatted some cases and legislation into italics. [59] "real any" amended to read "any real" 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: 03 August 2018