R v Kerollos

Judgment (4 paragraphs)

[1]

The application

Senior counsel for Mr Kerollos submitted that given the experts agree on the availability of the defence of mental illness, there is no issue requiring the application of community standards and therefore it is in the interests of justice to proceed by way of judge-alone.
The Crown opposes the application on the basis that there are significant issues of credit that are better left to a jury. The Crown suggests that Mr Kerollos lied to the psychiatrists about his symptoms and that in fact the killing was the horrific culmination of a jealous, angry and controlling relationship.
The Crown also submitted that the defence of substantial impairment is best left to a jury because it requires a value judgment involving consideration of objective community standards. The Crown cited decisions of Button J in support: R v Gokhan Eyuboglu [2019] NSWSC 181 and R v Flame [2020] NSWSC 1013.
Senior counsel for Mr Kerollos noted in reply that no issue of his credibility will arise because she does not intend to call him at trial. To the extent that there is any question of credit, it is neutral. In addition, reference was made to evidence that Mr Kerollos complained of symptoms prior to the offending and he had resisted any diagnosis, instead insisting he was sane.

Determination

At the outset it is appropriate to refer to what have been described as "collateral advantages of trial by jury". McClellan CJ at CL drew upon the judgment of Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7] in saying in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [97]: "In Swain, as I have previously identified, Gleeson CJ identified what he referred to as the collateral advantages of trial by jury. Two interests are commonly identified. First, the community has an interest in ensuring that, where relevant to the issues to be tried, serious criminal matters are determined in accordance with current community standards. Subsection (5) expressly acknowledges this matter. Second, the community has an interest in ensuring that there is public confidence in the criminal justice system. The jury, as a means by which the public may participate in the processes of criminal justice, has been accepted as having a role to play in legitimating the operation of the criminal law, thereby enhancing public confidence in the administration of justice. However, it must also be remembered that less than 3 percent of the criminal trials in this State now take place with a jury: (McClellan CJ at CL, "The future role of the judge - umpire, manager, mediator or service provider" p 2, 1 December 2011)."
Hidden J in the same case noted that "an accused cannot have a trial by judge alone for the asking": R v Belghar at [118].
In relation to the issue of the accused's credibility, the submissions for both parties included reference to the judgment of Hamill J in R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259, including at [81]-[82]: "[81] There may be cases where particular issues of credibility mean that the interests of justice favour a trial by jury. In R v Tasich [2012] NSWDC 96 Knox DCJ expressed the opinion that where there were attacks on the credibility of public officials and members of parliament 'it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury.' [82] I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis."
Whether it is in the interests of justice for credibility disputes to be determined by a jury is a matter to be assessed on a case by case basis. It is true that jury determination can be considered desirable. For example, that was the opinion expressed by Johnson J in R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 at [102] ("in my view this factor may operate in favour of a jury trial"). In R v Mackie (No 2) [2018] NSWSC 1654 at [25], Lonergan J expressed the view that "the general assessment of the credibility and reliability of the accused's representations to the undercover operative is more properly made using the collective wisdom of a jury of twelve, rather than a single judge". However, as Hamill J has noted, judges are perfectly capable of assessing credit when required, and do so on a daily basis.
The dispute as to the credibility of Mr Kerollos' accounts to the psychiatrists will entail the tribunal of fact assessing them on their own merit but also with comparison to the position before Mr Kerollos was charged with his wife's murder. It seems apparent from the document review helpfully included in the first report of Dr Allnutt that there is a reasonable amount of evidence from quite a number of witnesses that will bear upon the issue of Mr Kerollos' mental condition. Neither a jury nor judge is better qualified to determine this credibility issue.
The defence of mental illness will rise or fall on the question of whether the histories provided by Mr Kerollos to the experts are accepted as sufficiently credible. No issue of community standards arises.
The partial defence of substantial impairment raises an issue often thought of as giving rise to a consideration of community standards. In R v Flame [2020] NSWSC 1013, the experts disagreed on whether the accused's psychosis was a result of an underlying condition or of his drug usage. The accused contended that substantial impairment would not practically arise - either the jury would find that the psychosis was underlying and return a verdict of not guilty on the grounds of mental illness, or they would find it was external and therefore find that there was no abnormality of mind. They would never be required to consider the second limb of the partial defence.
Button J, noting that no one can definitively predict how a trial will run, held that since substantial impairment could not be ruled out the matter should go to a jury. [1] His Honour found that he, as a judge, would be poorly equipped to answer "the normative question" within substantial impairment because of his over-exposure to criminal law and the criminal justice system. He considered himself "anti-qualified"; his legal knowledge and practical experience in relation to the offence of homicide would be "a positive disadvantage". [2]
Judges do answer such questions when the need arises. In R v Hadler [2018] NSWSC 1151, Wilson J accepted that substantial impairment, "arguably", is best left to the collective wisdom of a jury. Nevertheless, her Honour granted a judge-alone application because of a risk the accused would become "floridly ill" and unfit to be tried during the trial, resulting in the discharge of the jury and consequential delay in the determination of the matter. [3]
Mr Kerollos differs from Mr Flame in that Dr Eagle and Dr Allnutt agree that both defences are available. The Crown suggests that he lied to the experts and was an abusive and jealous husband. If that was accepted, it is difficult to see how a finding of substantial impairment (which would be founded on the account Mr Kerollos gave to the psychiatrists) could then arise.
Ordinarily, the potential availability of a defence of substantial impairment might be persuasive in determining a contested application for a judge-alone trial. However, the coronavirus pandemic continues to disrupt and delay criminal jury trials by the need to wait for test results and by the reduced availability of suitable courts. The COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW) inserted s 365 into the Criminal Procedure Act, empowering the court to order judge alone trials on its own motion. It is notable that s 365 does not include any explicit reference to objective community standards as appears in s 132(5). Clearly, this was to enable more judge-alone trials to proceed until the pandemic is resolved. The present application, however, is for determination under s 132.
Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 at [30]-[31] aligned himself with a prior judicial pronouncement that "the interests of justice also extend to the public interest in the due administration of justice". He considered in the context of the case before him that the interests of justice include that "criminal trials should proceed with the least chance of interruption and delay during the current crisis". Regrettably, restrictions imposed because of the COVID-19 pandemic continue to apply. Notwithstanding some recent relaxations to various aspects of social interaction, this Court continues to have a substantially decreased capacity to list criminal trials and will continue to do so for the foreseeable future.
It is not only the potentially available trial dates for the present matter that are affected by the decision as to whether it proceeds with a jury or by judge-alone. Every trial in this Court that proceeds with a jury has an impact upon the available time for future trials to be listed. The Court presently has pending trials with accused persons who have been in custody for four years or more.
I am satisfied that the interests of justice in the present case extend also to the interests of everyone involved in seeing it proceed as soon as possible. In this regard, I have in mind those who grieve the loss of Ms Kerollos, witnesses who will be pressed for their best memory of events that occurred more than 18 months ago, and the accused himself. As Wilson J found in R v Hadler at [74], "a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome".
For these reasons I am satisfied that it is in the interests of justice that Mr Kerollos be tried by judge alone.

The mental illness defence

Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) recognises the longstanding availability of the defence of mental illness: 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. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.
The defence is not there defined. It derives from R v M'Naghten (1843) 8 ER 718 and applies if an accused person was suffering from a defect of reason from a disease of the mind such that the accused did not appreciate the nature and quality of the physical act, or that it was wrong.
A "defect of reason" is an inability to think rationally: R v Porter (1933) 55 CLR 182 at 189. A disease of the mind must be "an underlying pathological infirmity of the mind": Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 at [89]. The defence is not available where the accused's condition is the product of self-induced intoxication by alcohol or drugs: ample authority for this proposition is collected and discussed in Fang v R.
A person does not appreciate the nature and quality of their act if they do not know the physical nature of what they are doing, or the implications of it: R v Porter at 188. A person does not know that what is being done is wrong if they do not know it is wrong according to ordinary standards of right and wrong adopted by reasonable persons, or where the person cannot reason with some moderate degree of calmness in relation to the moral quality of what they are doing: Stapleton v The Queen (1952) 86 CLR 358 at 367; Sodeman v The Queen (1936) 55 CLR 192 at 202 (Latham CJ), 215 (Dixon J).

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Judgment (4 paragraphs)

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Legislation Cited (4)

Cases Cited (16)

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