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[2013] NSWSC 1713
Supreme Court of NSW
2013-11-08
Johnson J, Latham J
Original judgment source is linked above.
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.
Background to Application 5A chronology of events is required to place this application into context. 6On 20 October 2011, the Accused was charged with the murder of Jason Dixon. 7Committal proceedings took place on dates between November 2012 and January 2013, with the Accused being committed from the Parramatta Local Court on 21 January 2013 for trial in this Court. A Public Defender acted for the Accused at the committal proceedings. 8The Accused first appeared before this Court on 1 March 2013. 9The Court has been informed that Ms Danieli, solicitor, was instructed on 15 March 2013 to act for the Accused on a legally aided basis. 10On 5 April 2013, Ms Danieli appeared before Latham J in the Arraignments List and indicated that counsel had not yet been retained. The matter was adjourned to 3 May 2013. 11Counsel from the private Bar was briefed to appear at the trial. The Court does not know why a Public Defender was not briefed as trial counsel. 12On 3 May 2013, counsel then appearing for the Accused appeared before Latham J in the Arraignments List, and a trial date of 4 November 2013 was fixed with a two-week estimate. 13I pause to observe that the present proceedings are governed by the case management provisions in the Criminal Procedure Act 1986 as enacted by the Criminal Procedure Amendment (Case Management) Act 2009 ("the 2009 Amending Act"): Clause 79(2), Sch 2, Criminal Procedure Act 1986. The case management regime enacted by the Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013 ("the 2013 Amending Act") applies only in respect of proceedings in which the indictment was presented or filed on or after 1 September 2013: Clause 79(1), Sch 2, Criminal Procedure Act 1986. 14Accordingly, Supreme Court Practice Note SC CL 2 (issued on 13 August 2010) ("the 2010 Practice Note") applies to this case. Supreme Court Practice Note SC CL 2 (issued on 20 September 2013) ("the 2013 Practice Note") relates to proceedings caught by the 2013 Amending Act. 15The Crown filed a Notice of the Prosecution Case for the purpose of s.137 Criminal Procedure Act 1986 on 23 September 2013. 16The defence was required to respond to the prosecution notice in compliance with s.138 Criminal Procedure Act 1986, no later than four weeks before the trial date: Clause 10, 2010 Practice Note. 17Clause 12 of the 2010 Practice Note stated: "By the date set for the trial, the matter must be ready to proceed. If there is an unavoidable problem or change to the conduct or length of the trial, legal practitioners are to notify the criminal registry or the criminal list judge at the earliest possible stage to avoid inconvenience to jurors and witnesses. An application to vacate a trial date is to be made by way of Notice of Motion with a supporting affidavit, setting out the grounds for the application." 18In circumstances revealed in my judgment of 15 October 2013 (refusing an earlier application to vacate the trial date), Ms Danieli was informed on 2 October 2013 that it would be necessary for her to brief other counsel as the selected counsel was not a member of the Legal Aid NSW Specialist Barrister Panel (Complex Criminal Law). 19On 9 October 2013, Ms Danieli briefed Mr Carroll of counsel who accepted the brief. 20As already mentioned, on 15 October 2013, I refused to vacate the trial, fixing the matter for further mention on 28 October 2013, in advance of the trial fixed for 4 November 2013. That application to vacate was based upon the Accused's concern that there may not be time for new counsel to prepare for trial. It was not submitted on that application that the counsel and solicitor for the Accused did not consider there was time to prepare for trial. 21By 28 October 2013, a Notice of Defence Response had not been provided to the Crown in accordance with s.138 Criminal Procedure Act 1986. 22On 28 October 2013, Mr Carroll appeared on the mention of the trial and indicated that he was required to appear for an accused at a trial at the Parramatta District Court, where the jury had been discharged and where the trial was to commence again that afternoon. 23On that day, a defence Notice of Motion was filed indicating three areas of evidence which were sought to be excluded. 24Not without some misgivings, I agreed to defer the commencement of the trial, with the jury panel to attend on 11 November 2013 for the trial proper to commence. To meet the convenience of defence counsel, I listed the pre-trial application in the Notice of Motion for hearing on 7 and 8 November 2013. 25After it had been confirmed that day that no s.138 Defence Notice had been served on the Crown, I made clear that such a notice was to be provided. 26There was no mention on 28 October 2013 (or before then) that any issue of substantial mental impairment may arise in this trial. In an attempt to understand the trial issues, I enquired of counsel whether there would be any expert evidence adduced in the defence case and he replied, "There may be" (T6.3, 28 October 2013). 27Counsel indicated that contact had been made with a neurologist for advice to be provided concerning the possible impact upon the Accused's cognitive function, as a result of a blow to the head which (it was common ground) had occurred on the afternoon that the Accused allegedly murdered the deceased. It was the Crown case that the deceased had struck the Accused to the head earlier that day and that the events giving rise to the murder charge were said to have involved an act of revenge for the earlier incident. 28Defence counsel sought leave to issue a subpoena directed to Justice Health, to obtain records concerning the treatment of the Accused in custody. I abridged time for issue of such a subpoena, made returnable before me on 1 November 2013. 29On 1 November 2013, on the return of subpoena directed to Justice Health, Ms Danieli handed up in Court (and provided to the Crown) a s.138 Notice. The document was singularly uninformative. Apart from identification of Mr Carroll as trial counsel instructed by Ms Danieli, the notice stated: "The issue as to substantial impairment is currently being investigated. The defence is not in a position to file a notice at this stage." 30I stood the matter over to 6 November 2013, on which occasion Ms Danieli sought leave to file in Court the Notice of Motion seeking to vacate the trial date, supported by an affidavit sworn by herself on 5 November 2013. Annexed to the affidavit was a short report of Dr Peter Ashkar, psychologist, who suggested various lines of investigation with respect to the Accused.
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
R
Hunter