HER HONOUR: Joshua Homann stands charged with the murder of Kirralee-Ann Paepaerei.
Yesterday (the day his trial was due to commence), Mr Homann applied for an order that he be tried by a judge alone. As the application was brought fewer than 28 days before the date fixed for the trial, it required leave under s 132A of the Criminal Procedure Act 1986 (NSW). Leave was not opposed by the Crown and was granted at the outset of the hearing of the application.
This morning, I refused the application. This judgment states my reasons for that decision.
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Principles to be applied
The application is brought under s 132 of the Criminal Procedure Act. That section provides that, where an accused person applies to be tried by a judge alone and the prosecutor agrees to that course, the court must make the order. However, where (as here) the prosecutor does not agree, the court has discretionary power to make the order "if it considers it is in the interests of justice to do so": s 132(4).
The exercise of that discretion is guided by s 132(5), which provides:
"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."
The approach that should be taken in making the assessment required by the section has been discussed in a number of cases. However, as acknowledged by Mr Lange, who appears for the accused, decisions in this field usually turn on their own facts. Any attempt to distil statements of principle from such decisions requires caution.
Mr Lange relied on a collection of seven "broad principles" stated by Button J in R v Adams (No 2) [2016] NSWSC 1359 at [33]-[39]. While it is not an issue that arises in the present case, the decision having been cited as providing a collection of the applicable principles, there is one I feel I must respectfully seek to qualify, concerning my decision in R v Gittany [2013] NSWSC 1503. Justice Button said (at [36]):
"Fourthly, it is true that impecuniosity and resultant lack of representation played a role in the decision of McCallum J in R v Gittany. Having said that, that factor has not been given prominence in other decisions at first instance, or in the New South Wales Court of Criminal Appeal."
The statement contends, as a matter of "broad principle", that "impecuniosity and resultant lack of representation" are not ordinarily given prominence. With respect, that illustrates the vice of seeking to formulate broad rules in a field in which a statute confers a guided judicial discretion. Impecuniosity and the prospect that the accused might be unrepresented had a particular significance in Gittany. The evidence established that the accused did not have the funds to retain his existing legal team for the length of a jury trial, raising the prospect of an adjournment. However, a key eye witness had informed the Crown that, if the trial was adjourned, he may not be available to give evidence as he was about to move overseas. For that reason, the Crown had indicated that, whilst the application for trial by a judge alone was formally opposed, the Crown would prefer that course to a lengthy adjournment (Gittany at [39]-[40]).
With great respect to Button J, I do not think a generalisation as to whether impecuniosity and the prospect of lack of representation has been "given prominence" can helpfully be articulated as a principle of general application. The danger of attempting to distil a collection of principles from fact-specific cases is that they might be perceived as hard rules the application of which might cloud the exercise of the broad discretion conferred by the statute.
The first principle stated by Button J is that there is no "default position" of trial by jury (at [33]). As explained in Gittany at [7] - [8], the origin of that proposition was a statement by McClellan CJ at CL in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 with which the other two members of the Court did not appear to agree. However, as I noted in Gittany, Justice McClellan's remarks in Belghar at [96] have since been cited by the Court of Criminal Appeal 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": R v Stanley [2013] NSWCCA 124 at [42] per Barr AJ; Macfarlan JA and Campbell J agreeing at [1] and [2] respectively. Accordingly, the Chief Judge's statement in that case must now be taken to be a binding statement of principle.
An alternative expression of what I would understand to be the same proposition is that adopted by Martin CJ in Arthurs v The State Of Western Australia [2007] WASC 182 at [85] where his Honour explained that the court is required to start from "a position of neutrality" and to inquire whether there are any factors in the interests of justice pointing in favour of trial by jury and whether there are factors pointing in favour of a trial by a judge alone.
Separately, it has been accepted that the assessment of the interests of justice in any particular case must be founded on evidence but that is not an onerous requirement in the circumstances of the present application. The tender of the Crown case statement and the expert reports relied upon by each party was sufficient to establish an evidentiary basis for the grounds relied upon by the applicant in making the application.
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The Crown case
The case the Crown will seek to make may be summarised briefly. The deceased and the accused had been in a de facto relationship for about two years. She was pregnant with his child. Both had been regular users of methylamphetamine but the deceased had stopped using drugs a few months earlier because she was pregnant. On the evening of 21 September 2015 (a Monday) they were at home together. The deceased's son Jamaine, who was aged 16 years, was at home with a friend, Jayden Cuthbert. They left the home at about 9:30pm to visit Jamaine's girlfriend.
The Crown case is that the accused murdered the deceased shortly before midnight that night. There is no eyewitness to the events that led to her death. Apart from the accused, it appears the last person to see her alive was her nephew, Jaiden Paepaerei, who came to the house later in the evening looking for Jamaine. Jaiden saw the deceased and the accused at the main bedroom window and waved at them. He then knocked on the front door and the deceased came downstairs to let him in. He said he wanted to see Jamaine. The deceased called out for Jamaine but there was no answer. She said he must have gone out. At that time the accused was at the top of the stairs wearing a white singlet. Jaiden Paepaerei heard the accused say "shut the fucking door" and continue swearing. He says the accused was ranting and raving. Jaiden told the deceased he would come back later.
Jamaine returned home shortly before midnight with Jayden Cuthbert. The house was in darkness. They got themselves a glass of water from the kitchen and were about to go to sleep in the lounge room when they heard a loud banging noise from upstairs followed by the sound of breaking glass and the accused's car alarm sounding. They went to the front door and saw the accused's car being reversed at speed out of the driveway. Thinking the car had been stolen, Jamaine ran upstairs to tell the accused. When he turned on the light he saw the deceased lying on the ground and realised he was standing in blood. They called the police.
It was the accused who had taken the car after jumping out of the upstairs bedroom window. He drove to Mount Druitt Police Station where he left the car facing in the wrong direction with the door open. He went to the front counter and started yelling "you need to get someone to Chester Street, someone broke into my house and tried to stab me. My partner is at home. You need to make sure she is ok." The accused had blood on his head and arms. Detectives were called and took him into an interview room where his physical state rapidly deteriorated. His breathing was laboured and he was shaking and trembling uncontrollably. He was given some water which he spilled before starting to slip off the chair. He had to be held up. At some point, he bit off a section of the polystyrene foam cup he was drinking from and ate it. He became unresponsive to questions and appeared "distressed and paranoid". An ambulance was called. When the ambulance officers arrived, the accused repeatedly grasped one of the officers by the arm, trying to hold his hand and asking to be protected.
The accused was not fit to be interviewed at that stage and later declined to be interviewed by police. His response to the Crown case is revealed in his statement pursuant to s 142 of the Criminal Procedure Act. The statement indicates that it will not be in issue at the trial that it was the accused who stabbed the deceased. The statement gives notice of the following issues to be raised at trial:
1. self-defence;
2. alternatively, the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW);
3. alternatively, the defence of mental illness on the basis that the accused was suffering from a "defect of reason" at the time of the commission of the alleged offence.
In support of the defences of mental illness and substantial impairment, the accused intends to rely on the opinion of Dr Stephen Allnutt, a forensic psychiatrist. It is not necessary for present purposes to set out the detail of the history taken by Dr Allnutt from the accused. In short, the accused recounted a lengthy history of substance abuse, notably culminating in his turning to methamphetamines from about the age of 33. The accused told Dr Allnutt that, after he started using methamphetamines, "things went downhill". However, he also recounted a lengthy history of auditory hallucinations and paranoid ideas starting at about the age of 30, before he started using methamphetamines.
The history given by the accused, if accepted, thus raises the prospect of a diagnosis of schizophrenia in addition to the obvious possibility of drug-induced psychosis caused by amphetamines. Dr Allnutt noted that it can be difficult to distinguish between the two, "as the symptoms of an amphetamine-induced psychosis can mimic schizophrenia and because symptoms can be relatively more persistent than other forms of substance-induced psychosis." On the strength of the full history obtained, Dr Allnutt ultimately preferred the diagnosis of a chronic psychotic disorder, saying:
"Based on the information available to me, on balance your client, suffers from a chronic psychotic disorder. He describes the onset of auditory and paranoid ideation sometime around age 30, prior to commencing methamphetamine but after commencing cannabis use. Psychotic symptoms persisted in the form of auditory hallucinations at the time I saw him, despite oral and intramuscular anti-psychotic medication and despite abstinence from substances over a period of two years. This sort of history, even though psychosis has occurred concomitant with the use of substances argues in favour of a chronic psychotic disorder rather than a primary drug induced psychosis. That is that he likely has an underlying chronic psychotic disorder aggravated by the substances, such as schizophrenia."
Dr Allnutt then set out a careful analysis of the accused's mental state at the material time of the alleged offending. He concluded that it is unlikely the accused would have been so mentally unwell that he would not have known the nature and quality of his actions at that time. However, he considered that there were manifestations of impairment in the accused's capacity to reason about his actions with a moderate degree of sense and composure. On that basis, it was his opinion that the accused could raise a defence of mental illness on the basis that the accused was suffering from a "defect of reason".
Alternatively, Dr Allnutt considered that the accused could raise a defence of substantial impairment on the basis that he would be regarded as having an impaired capacity to understand events and an impaired capacity to judge right from wrong. Dr Allnutt considered that the accused would also have been "vulnerable to reacting with a loss of control in response to a perceived threat".
Dr Allnutt concluded his report as follows:
"Whether he will achieve a defence of mental illness, substantial impairment or self-defence is a legal determination to be made by the court. In my view, overall the symptoms he described, deriving from his underlying mental illness, would have contributed to the alleged offending in a significant way, reasonably raising these defences, and I believe that one of these defences is applicable to him."
Mr Lange identified five principal reasons why it would be in the interests of justice for the accused to be tried by a judge alone. The first was the complexity of the medical question as to the accused's mental state and the complexity of the legal issues raised by that question. Mr Lange accepted that a jury is taken to be capable of determining such issues. However, noting the absence of any presumption in favour of trial by jury, he submitted that the variety of defences raised by the evidence in the present case and their "interplay" with intoxication would more appropriately be analysed by "a professional tribunal of fact".
That is a mixed consideration in the present case. I accept that the issues in the case, particularly those foreshadowed by way of defence, entail a measure of legal complexity the analysis of which should fall comfortably within the experience of a judge and perhaps less so within the experience of at least some jurors. A jury cannot include lawyers: Jury Act 1977 (NSW), Schedule 1, cl 5A. I accept that the existence of issues involving particular legal complexity might be a factor pointing in favour of a trial by a judge alone. The insider trading provisions of the Corporations Act 2001 (Cth) would provide an example, but for the constitutional provision for trial by jury in the case of Commonwealth offences. In the present case, legal complexity is a factor pointing in favour of the accused's application but it is a weak factor.
Conversely, the question of self-defence and the positive defences raised involve issues of the kind falling within squarely within s 132(5), that is, factual issues that require the application of objective community standards. That issue is considered further below in my consideration of the Crown's submissions.
Secondly, as an aspect of the first reason, Mr Lange noted that the verdict in the case of a trial by a judge alone is required to be supported by published reasons. He submitted that the provision of reasons would be an important protection for the accused in the present case, given the complexity of the issues outlined above. I accept that is a relatively compelling consideration in the present case, for the reasons stated by Martin CJ in Arthurs at [74]-[76] and [89]. In particular, his Honour noted that the obligation to provide reasons disciplines the decision-maker and also provides "a transparency and capacity for evaluation which the community has come to expect" (at [75]).
Thirdly, Mr Lange submitted that aspects of the evidence in the present case are such as would be likely to prompt an emotional response on the part of the jury. In particular, he noted that the deceased was the mother of a number of children (one of whom is a key witness in the Crown case) and further that she was pregnant at the time of the alleged offence. Mr Lange submitted that the evidence revealing those circumstances would be likely to illicit a strong emotional reaction from any juror.
Mr Lange's submission as to the benefit of having a statement of reasons for the verdict also carries some weight in this context. In Arthurs, Martin CJ said at [89]:
"Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict."
In the (different) circumstances of that case, Martin CJ considered that consideration lent "weighty support" to the proposition that trial by a judge alone was in the interests of justice.
If the likely emotive nature of the evidence is a factor pointing in favour of a trial by a judge alone in this case, I think it is a weak factor. The facts are certainly upsetting (whatever the appropriate verdict) but that is a common feature of murder trials. I am not persuaded that the evidence will be such as to render it impossible for any juror to be impartial. To the extent that one can judge such matters, it has been my experience that juries appear to attend conscientiously to the direction to put aside emotion and to act as they would expect any judge to act, that is, with impartiality.
Fourthly, Mr Lange relied on the fact that the evidence that must necessarily be adduced to support the defences will prove unlawful conduct on the part of the accused. The submission was based primarily on the evidence of the accused's history of using illicit drugs and, to a lesser extent, the fact that his delusional thoughts often exhibit fear of "bikies", introducing the prospect of his having had a prior association with outlaw motorcycle gangs. Mr Lange submitted that those matters, particularly the evidence of the accused's voluntary use of illicit drugs, are likely to excite an emotional response on the part of jurors.
As with the first reason, that is a mixed consideration in the present case since it squarely attracts s 132(5). That issue is considered below.
Finally, Mr Lange noted that, by making the application, the accused has implicitly expressed a preference for a trial by a judge alone. That is a matter to be taken into account in the manner explained by Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [58] - [60]. In short, the accused has no right to demand a trial by a judge alone but his decision to relinquish his right to a jury trial is a matter to be weighed in determining where the interest of justice lie.
The Crown identified two features of the case which he submitted militate in favour of refusing the application. First, he relied on the guidance provided by s 132(5). As noted by the Crown, two of the defences to be raised in the present case raise factual questions that fall squarely within that section. The first concerns the issue of self-defence, which requires the Crown to prove beyond reasonable doubt that the accused's conduct was not a reasonable response in the circumstances as the accused perceived them. The reasonableness of the response is plainly an issue calling for the application of objective community standards.
Secondly, the Crown relied on the fact that the defence of substantial impairment raises a question of objective community standards in its second element, which requires consideration as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Mr Lange accepted that analysis and accepted that it was a relevant consideration. At least three judges of this Court have come to the same conclusion: see R v Bretherton [2013] NSWSC 1036 at [25] (Harrison J); approved in R v Villalon [2013] NSWSC 1516 at [35] (Bellew J); R v Haydar [2017] NSWSC 127 at [36] (Garling J).
The requirement to apply objective community standards in assessing the defences is a powerful factor pointing to the desirability of a trial by jury in the present case. It is almost a truism to say that the assessment of objective community standards is best undertaken by a group of members of the community. Even if that is not right, it can at least confidently be said that s 132(5) reflects a clear intention that the court will treat that as a factor pointing in favour of a trial by jury.
Further, in my assessment, there is some abiding force in the traditional conception that, of necessity due to the volume and nature of the work, judges live relatively isolated lives and may be less well placed to determine current community standards. That is a consideration of perhaps less weight but still relevant.
As to the emotive nature of the evidence, the Crown submitted that any prejudicial effect of the evidence concerning the fact that the deceased was a mother and was pregnant at the time of her death and the accused's use of drugs could be addressed appropriately by giving appropriate warnings to the panel before a jury is struck and with appropriate directions to the jury during the trial and in the summing up. The Crown also indicated that he did not intend to tender any photographs that might unduly excite emotion or sympathy.
Finally, the Crown submitted that there is in the present case a particular likely benefit of a jury, since the consideration of the defences will require an assessment of the accused's credit. The Crown noted that the accused has, at least to some extent, given inconsistent histories of his psychiatric symptoms to different experts. He submitted that is an issue as to which 12 minds are better than one. Mr Lange for his part took issue with that submission, suggesting that the assessment of defences of the kind raised here is well within the experience of the Court. That is true. However, there is in my view a real strength in having 12 people consider factual issues, particularly where there is a challenge to credit.
Starting (as I must) from a neutral position, while I accept that there are factors pointing in favour of a trial by a judge alone in the present case, in my assessment those factors are significantly outweighed by factors pointing strongly in favour of a trial by jury.
For those reasons, I concluded that the interests of justice favoured a trial by jury in the present case.
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Decision last updated: 25 February 2020