R v Hunter

Supreme Court of NSW|2013-11-08|Before: Johnson J, Latham J

Judgment 1JOHNSON J: The Accused, Paul Andrew Hunter, is charged with the murder of Jason Dixon at Dharruk on 23 June 2011.

The Present Application 2The trial of the Accused was fixed to commence on 4 November 2013. On 28 October 2013, on the application of the Accused, I varied the trial listing by fixing for hearing on 7 and 8 November 2013 a Notice of Motion seeking the exclusion of certain evidence, with the trial to commence before a jury on 11 November 2013. 3By Notice of Motion filed on 6 November 2013, the Accused applied to vacate the jury trial then fixed for 11 November 2013. The vacation application proceeded to a hearing on 8 November 2013. 4At the conclusion of that hearing, I made an order vacating the trial and stated that I would give reasons for this decision on 13 November 2013. This judgment contains my reasons for vacating the trial.

Substantial Mental Impairment 31I pause at this stage to make a number of observations. 32If an accused person intends to adduce evidence of substantial mental impairment at a trial for murder, the Accused cannot do so without the leave of the Court, unless notice has been given to the Crown at least 35 days before the commencement date of the trial: s.151(1) Criminal Procedure Act 1986; Clause 20 Criminal Procedure Regulation 2010. 33This Court should be entitled to approach listed murder trials upon the basis that the legal representatives instructed on the trial will have turned their minds to a possible issue of substantial mental impairment before a trial date is fixed. Information of this type is essential for the purpose of identifying the issues at trial, and providing an accurate estimate for the duration of the trial. 34In any event, if substantial mental impairment is to be raised, there is a statutory requirement for notice. It has been accepted that a flexible approach ought be taken by the Court where leave is sought under s.151, to rely upon the partial defence of substantial mental impairment after the time prescribed by statute: R v Kaewklom (No. 1) [2012] NSWSC 1103 at [29]-[30]. 35This does not mean, however, that the legal representatives for an accused person may delay such a process, in the expectation that leave will always be granted, or that a trial date will be vacated where a belated suggestion is made that substantial mental impairment is being explored.

Some Factual Matters 36It is appropriate to refer briefly to some factual matters. It has always been part of the Crown case, communicated to the legal representatives for the Accused, that the deceased, on the afternoon of 20 June 2011, hit the Accused on the back of the head with an implement, thereby causing the Accused to make verbal threats to the deceased. 37It is the Crown case that the Accused later that day entered the premises of the deceased, in the company of others, where the deceased was struck to the head with fatal consequences. 38The Crown case against the Accused is put on two alternative bases, namely, that the Accused is guilty by reason of his own act in striking the deceased in his house, or that he is guilty by reason of having acted in concert with his brother and cousin, Wade Hunter and Gary Hunter (who are said to have been present), to at least intentionally inflict grievous bodily harm on the deceased, in retribution for the deceased's earlier assault on the Accused. 39There is some material in the statements of Crown witnesses that indicate that the Accused had been consuming alcohol and/or drugs on that day. There is material, as well, which indicates that the Accused attended the Mt Druitt Hospital on the evening of 20 June 2011, where he was seen by nursing staff. A lump was observed on the head of the Accused, but no blood was seen. The Accused did not remain to be examined by a medical practitioner. 40The Crown brief contains a statement from Michael Fanous, a pharmacist, who states that at about 5.50 pm that day, the Accused attended his pharmacy and was administered his methadone dose for that day. Mr Fanous observed that the Accused was moving somewhat slowly. On arrival later at Mt Druitt Hospital, the Accused appeared unsteady on his feet and was stumbling.

The Basis of the Application 41The thrust of the application to vacate the trial date was that the legal representatives for the Accused needed an opportunity to explore the possibility of a partial defence of substantial mental impairment, arising from a possible head injury to the Accused sustained on 20 June 2011 in combination with the impact of drug and alcohol consumption that day. 42Reliance was placed as well upon an entry in the Accused's Justice Health records which indicate that, whilst he was in custody at an earlier time (on 2 May 2001), a booking had been made for him to attend Westmead Hospital for a CT scan which appeared to relate to the Accused's head. The Justice Health records did not disclose the results of this CT scan. 43In addition, the Justice Health clinical notes record the Accused, on 26 February 2012, complaining of headaches and slightly blurry vision. A nurse noted a lump on the head of the Accused. 44Mr Carroll submitted that the scenario which might present itself in this case may have certain similarities to that referred to by Fullerton J in R v Kennedy [2008] NSWSC 703, in particular at [31]ff. 45In support of the application, it was submitted that the blow to the head of the Accused and evidence concerning his apparent intoxication by alcohol and/or drugs, would be important issues in the trial. It was submitted that the defence wished to have further investigations carried out of a neurological type, to determine whether there is evidence of any neurological injury which may bear upon the state of the Accused on 20 June 2011. 46The affidavit of Ms Danieli sworn 6 November 2013 reveals that the Accused admits to being present when the deceased was struck to the head, but the Accused says that the blows were delivered by his now deceased brother, Wade Hunter. 47The legal representatives for the Accused made arrangements for Dr Olav Nielssen, forensic psychiatrist, to examine the Accused on 7 November 2013. The Court was informed that Dr Nielssen had provided a report to the legal representatives for the Accused which indicated that substantial mental impairment (on psychiatric grounds) was not available to the Accused. Dr Nielssen's report has not been served on the Crown or provided to the Court. 48The Crown noted that it had prepared for a trial upon a basis different to that now raised for the Accused. If the Accused sought to raise the blow to his head and consumption of alcohol and/or drugs as trial issues, then the Crown may not be in a position to meet them at this time.

Determination of Application 49I was and remain concerned at the way in which this application unfolded. The factual matters relied upon are all contained in the prosecution brief, with the additional reference in the Justice Health records to a proposed CT scan in 2001, and certain matters raised by the Accused on 26 February 2012 (having apparently been in custody on other matters since 21 June 2011). Apart from that, Dr Ashkar (who has not examined the Accused) has raised a number of suggestions for enquiry, from a psychological perspective. As I have said, Dr Nielssen does not support a partial defence of substantial mental impairment. 50I have kept in mind, as well, that this is not a case, such as R v Kennedy, where the Accused admits that he struck the fatal blow to the head of the deceased. This places some distance between the Accused and the normal scenario where substantial mental impairment is raised. Mr Carroll submits that substantial mental impairment may arise, as well, in a scenario such as this. 51I have significant misgivings as to whether the delay in the trial will furnish any further evidence which may bear upon the guilt of the Accused. However, the Accused is to stand trial for murder. Where application is made to adjourn a trial upon the basis that the defence seeks to explore an issue which may constitute a defence or partial defence at trial, then the Court should adopt a cautious approach before shutting the Accused out from taking those steps. It has been said that an accused should be given a reasonable chance to present his case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it: R v Alexandroaia (1995) 81 A Crim R 286 at 289. 52At the same time, as also acknowledged in R v Alexandroaia at 291, there is a strong public interest in a criminal trial, once fixed for hearing upon the basis that the parties were ready to proceed, ordinarily proceeding with expedition. The Court of Criminal Appeal has observed that the significance of this consideration (expressed in R v Alexandroaia in 1995) has been reinforced by the case management provisions contained in the 2009 Amending Act: Slotboom v R [2013] NSWCCA 18 at [36]. 53I am conscious that a last-minute application to vacate a trial date will have a likely adverse effect upon witnesses in the trial, and persons interested in the trial, including the family of the deceased. I am conscious, as well, of the disruptive effect upon the Court's administrative arrangements where a trial is vacated at the last minute, in the manner in which has occurred in this case. This is not a course to be taken lightly. 54However, In all the circumstances, I formed the view that the appropriate order was to vacate the trial date and an order to that effect was made on 8 November 2013. 55Before concluding this judgment, I wish to make two observations. Firstly, as I have noted, this trial is not caught by the recent provisions for mandatory defence disclosure contained in the 2013 Amending Act. Implementation of those provisions should guard against repetition of what has happened in this case. That said, this trial was subject to the case-management provisions enacted by the 2009 Amending Act. Defence compliance with those provisions, and the statutory requirement for notice where substantial mental impairment may be raised, should have seen this issue being explored by the legal representatives for the Accused at a much earlier time. 56Secondly, the fact that the Court made an order vacating the trial should not be interpreted as the Court desiring or requesting that the further enquiries foreshadowed by the legal representatives for the Accused should be undertaken. All the Court has done is provide time for this issue to be considered, by vacating the trial date. 57Following the pre-trial hearing which is to proceed today, I will make an order placing the proceedings in the next Arraignments List on 6 December 2013.

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 September 2014

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