R v Mapp

Relevant legislation

1. In NSW serious criminal proceedings are usually tried by a jury: s 131 of the CP Act. Despite this, for trials in relation to State offences (such as the offence of murder contrary to s 19 of the Crimes Act 1900 (NSW), that default position can be displaced in the circumstances set out in s 132 of the CP Act. Section 132(1) of the CP Act provides that: (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. If both parties agree that a trial is to be by judge alone then the court must make an order to that effect: s 132(2). If the accused person does not agree to being tried by a judge alone, the court must not make a trial by judge order: s 132(3).
3. When the accused person makes application for his or her trial to be heard by a judge alone, but the Crown opposes the application, the relevant test for the Court is as set out in s 132(4) which is in these terms: (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. (Emphasis added.)
4. Relevantly to the present application, s 132(5) of the CP Act is in these terms: 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.
5. Further, s 132(6) provides that: 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.
6. As for the timing of any such application, s 132A of the CP Act provides that: (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless- (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. (3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury. (4) Rules of court may be made with respect to applications under section 132 or this section.

The Crown Case

1. In order to assess the question of where the interests of justice lie it is necessary to outline the Crown case. I have taken the following facts from the Crown Case Statement ("CCS").
2. The deceased was born on 5 January 1940 and was the accused's biological mother. She had two children, including the accused, and in the early 1970s, she separated from their father. A few years later, she married Kevin Wilson. In the early 1980s, the deceased and Mr Wilson built a house at 65 Eastern Road, Tumbi Umbi and the deceased remained living there until her death. Mr Wilson passed away in 2012.
3. In around 2011, the accused moved to the Central Coast. He lived with the deceased off and on. In 2021, she helped him rent a unit in Watanobbi. Despite this, the accused stayed at the deceased's house about three nights per week and she would often cook him meals.
4. The accused had a longstanding heroin addiction. Although he was on a methadone program at Wyong Hospital, he often regressed.
5. On 26 July 2022, the accused went to stay with his mother at her house at Tumbi Umbi after contracting Covid-19.
6. At 6:40am that day, the accused called the deceased's friend Lynette Perkin on her landline and left a message to call him. The previous week Ms Perkin had agreed to give the accused a job cleaning her external cement and tile areas of mould. About half an hour later, she called back. The accused told her he had no money to buy "smokes" or to afford to catch the bus. Ms Perkin agreed to give him $100 and when he had finished, they could negotiate any further money owing. The accused said he would be at Ms Perkin's house the next morning if the weather was fine.
7. At about 8:45am, the accused and the deceased arrived at Ms Perkin's house. Ms Perkin gave the accused $100. The accused and the deceased drove off.
8. At 4:49pm, Ms Perkin called the deceased. The deceased told her that the accused had Covid-19 and was shaking badly. She said she would get an ambulance in the morning if he was not feeling better.
9. At 10:06am on 27 July 2022, Ms Perkin spoke to the deceased by phone. Ms Perkin told her how to report the accused's status to the health authorities and how long to isolate for. She told the deceased that the accused could not come to her house as she and her partner were elderly and vulnerable to the disease. The deceased said that the accused was sitting out in the sun and was feeling a bit better.
10. At 6:41am on 28 July 2022, the accused called Ms Perkin on her mobile phone, but she did not answer.
11. At 6:42am, the accused called Mark Thuaux. During the call, Mr Thuaux asked the accused if he could "get on" and he told him he could get on at Wyong. The accused said he had a "raging habit and it's all about to come to a screaming halt today." Mr Thuaux asked "why", and the accused said, "because of a lack of funds."
12. At 6:51am, Ms Perkin called the accused back and he said, "I want to come round and do the work now." Ms Perkin said, "David, you can't, you have Covid, you must stay isolated. Sonia and I are both compromised, and we don't want you here. We'll think about the end of next week." The accused said, "Mum doesn't want me." Ms Perkin said, "Just talk to your mum David, because you must be isolated. Give me a call tonight and let me know how you are."
13. It is the Crown case that at about 7:00am the accused had an argument with the deceased. During the argument, the accused went outside and retrieved a pot plant. He returned inside with the pot plant and assaulted the deceased with the pot plant. The pot plant hit the deceased to the back of her head, causing blunt force head trauma with a large laceration to the left back of the scalp, with associated bruising to the area. The deceased fell to the ground. At around this time, the accused applied pressure to the deceased's neck.
14. After his mother died, the accused cleaned the scene and changed his clothes before leaving the house. This conduct will be relied on by the Crown as consciousness of guilt.
15. Sometime after the alleged murder of the deceased, the accused was depicted on CCTV footage at 9:36:16am walking along the footpath carrying a large television in his hands.
16. At 9:36:23, the accused entered the Long Jetty Pawn Brokers located at 391 The Entrance Road, Long Jetty and pawned his mother's television and whipper snipper. The entire transaction is captured on CCTV. Other CCTV footage depicts the accused later at a shopping centre. He met up with people and purchased and injected heroin.
17. At 4:02pm, Janice Fowler (the deceased's sister) called the deceased on her mobile phone but there was no answer. At 4:10pm, she telephoned the accused. His voice was slurred. He told her that the deceased must be down at the shops. He later told Rosalyn Rowley the same thing.
18. At 5:18pm, the accused called triple-0 and reported his mother's death. He gave an account that they had an argument, that his mother fell, and he tried to revive her. He also told them that she chased him with a knife and that he threw a pot plant at her to protect himself.
19. At 5:20pm, police arrived at the deceased's house. Police saw the deceased's body under a blanket and activated a body worn video ("BWV") camera. The deceased had a significant pool of coagulated blood around her head, and she had dried up blood coming from her ears. She was cold and stiff to the touch, and she had been clearly dead for a long period of time. There was a pile of soil or dirt around her body.
20. The accused was cautioned and gave an account to police captured by the BWV that his mother came at him with a knife, so he protected himself. When asked whether he threw the pot plant at his mother, he initially denied throwing it at her and said that he "missed". He also said that he held it "like a baby" and described throwing it in self-defence. He told police he had been sitting in the house all day, that he had tried CPR and that he was in shock.
21. The accused later participated in an ERISP in which he described the CPR he gave his mother. He was shown an image of himself at the pawn shop that day and told police "I pawned the TV after a while had gone by uh, I was distraught. Um, I had a heroin habit. I meant to go the hospital and get back on the methadone program uh, at least those three days I was also in, severe withdrawals as well as the Covid. Um, after seeing mum like that um, I just wanted to feel numb. Um, so I pawned the TV. Bought some heroin". (Q/A67-70).
22. The accused also told police that he drove his mother's car to the pawn brokers (Q/A73-74). He also told police that he used the $200 he received for the TV to buy heroin which he then used (Q/A82-84).

Subsequent versions provided by the accused to psychiatrists

Dr Olav Nielssen

1. The accused was interviewed by Dr Olav Nielssen on 1 November 2023 at the request of his lawyers. He gave an account of the events leading up to his mother's death. He recalled that he was suffering from heroin withdrawals and had not slept as he had argued with his mother throughout the night.
2. He told Dr Nielssen that he was hearing voices that told him his mother was going to harm him and "telling [him] to harm [her] before she harmed [him]". He recalled that around 7:30am or 8:00am his mother asked him to bring a pot plant inside the house. He did so and they continued to argue. He recalled that she said to him "don't come near me I will run this knife through you" and he stepped forward, grabbed her by the throat and pushed her back. He described grabbing the pot plant and recalled that he "sort of brushed it like that" and it struck her on the back of the head. The accused recalled the voices "laughing" at him as he shook his mother by the shoulders and saying, "we told you".
3. The accused told Dr Nielssen that he had used heroin and diazepam to suppress the voices in his head in the period before the offence but that "it wasn't enough" and the voices were still laughing at him. He said the voices told him to drive the car to the pawn shop and get money for heroin. He also told Dr Nielssen that he was not affected by any legal drug or medication at the time of the offence although he was withdrawing from opioids and affected by Covid symptoms.
4. In addition to giving the above version of the incident, the accused discussed his past history and mental health issues with Dr Nielssen. He told him that his father was a violent alcoholic, and that his brother is an alcoholic and a drug addict. He recalled that his childhood was marked by bouts of violence from his father whilst intoxicated. He reported being beaten and witnessing violence towards his mother and brother. He reported being sexual abused as a child (when he was 7 or 8 years old), and that this changed him and he began using marijuana at a young age and heroin at 12 or 13.
5. Dr Nielssen diagnosed the accused with a depressive illness, an anxiety disorder with features of post-traumatic stress disorder, and a substance abuse disorder. The diagnosis of a depressive illness arose from the a accused's self-reported symptoms including low mood, poor sleep, lack of energy and anxiety.
6. Dr Neilssen had regard to the Justice Health records which disclosed a period of self-harm and subsequent treatment with anti-depressants in 2013 following the accused's incarceration at that time.
7. Dr Nielssen observed the accused to appear depressed in the interview, a conclusion gleaned both from his demeanour and the quality of his responses. The diagnosis of an anxiety disorder arose from the accused's report of symptoms arising from sexual abuse whilst in institutional foster care "and from his attempted suffocation by a cell mate during a previous period of incarceration". The accused reported that he has consistently abused anxiety relieving sedatives.
8. In Dr Nielssen's opinion there were no objective features of a psychotic illness such as abnormal emotional reactions or a communication disorder in any of the recordings made around the time of the accused's arrest or in the notes of Justice Health psychiatrists and mental health nurses. A psychotic illness is defined by the presence of enduring delusional beliefs rather than the presence of perceptual disturbances. Although the accused described experiencing hallucinations of voices directing his actions, Dr Nielssen did not believe that he had a typical psychotic illness which would normally involve impaired emotional regulation, a communication disorder, a disturbance in the capacity for logical thinking and fixed emotional beliefs. Dr Nielssen also found it significant that the accused did not disclose the presence of hallucinations until some months following his incarceration, despite having been directly asked about hallucinations by several nurses and a conscientious psychiatrist.
9. Finally, Dr Nielssen opined that the accused's depressive illness is an underlying condition within the meaning of s 23A of the Crimes Act, which gave rise to an abnormal state of mind at the time of the offence. Dr Nielssen observed that his abnormal state of mind is likely to have had an impact on his perception of events and his capacity to control his actions. He noted that his negative perception of his situation and his mother's behaviour was likely worsened by the symptoms of Covid-19 and his opioid withdrawal.

Dr Yvonne Skinner

1. The accused was seen by Dr Yvonne Skinner on 5 March 2024 at the request of the Crown.
2. The accused reported to Dr Skinner that he has experienced anxiety most of his life and has never liked violence. He recalled that in the days prior to the offence he was very ill from Covid and was shaking, vomiting, unable to think clearly and experiencing a fever. He was also suffering symptoms of heroin withdrawal. The accused had Valium in his room sourced from the "dark web", but this was insufficient to control his withdrawal symptoms. The accused recalled that immediately prior to the offending he had been arguing with his mother, generally about him not being able to live independently like his mother wished. She expressed concern for his future. He recalled that they argued all night. He told Dr Skinner that at one point she chased him with a knife.
3. The accused reported experiencing auditory hallucinations, including voices saying "She's going to kill you Dave" when his mother came at him with the knife. He reported that he "brushed against" the pot plant which was placed on the breakfast bar, and it fell and struck her on the head. He then heard the voices say, "You've got her" and the sound of laughing. He recalled seeing a pool of blood. He told Dr Skinner that he attempted to shake his mother awake. He then took 10 Valium tablets and reported that he had no memory from that time until later in the afternoon when he recalled returning to look at his mother's body in the lounge room and answering her phone. He has been told that he spoke to a number of people but has no recall of those conversations. He also told Dr Skinner that he did not recall taking his mother's television to a money lender or buying heroin in the intervening period.
4. He reported that his next memory after taking the Valium tablets was waking on the lounge in the afternoon, seeing his mother's body, and thinking that the event had just happened. He reported that he attempted CPR, realised she was deceased, and called an ambulance.
5. Dr Skinner conducted a mental examination of the accused. While he spoke of experiencing auditory hallucinations, Dr Skinner noted that he did not display the characteristic signs of auditory hallucinations such as confusion, unusual behaviour or a preoccupation with internal thinking processes. He denied any other symptoms suggestive of psychosis. He did not present as delusional. He displayed no abnormal behaviours or mannerisms suggestive of psychosis.
6. Dr Skinner opined that whilst Dr Nielssen had diagnosed a depressive illness, she considered it difficult to diagnose any mood disorder because of the overlap in symptoms between substance abuse/withdrawal and a depressive disorder. She opined that there was no clear history of a major mood disorder and that the depressive symptoms he experienced appeared to be attributable to his situational context: at the time of the offences because he was unwell and finding it difficult to live independently, and at present because of his situation and incarceration.
7. Dr Skinner was unable to find any evidence of symptoms of a psychotic mental disorder. She noted that the accused did not mention auditory hallucinations to police at any point, nor was she able to find any reference to hallucinations prior to the records of his present term in custody. The accused experienced regular psychiatric review at the Mental Health Unit at Long Bay and no psychotic signs were observed, nor was a diagnosis of a psychotic mental disorder made.
8. In response to the question of whether the accused was suffering from any mental health impairment at the time of the incident, Dr Skinner opined that at the time of the offence the accused was suffering from drug withdrawal, the effects of Covid, a severe generalised anxiety disorder and a possible temporary depressive disorder in the context of his living situation and resulting conflict with his mother.
9. Dr Skinner also mentioned in her report that the accused was assaulted in custody and that he thought it was because he had not been sleeping and was pacing in the cell. Dr Skinner did not link that incident to his anxiety disorder nor include in her report the accused's recall of any further details of the assault.

The defence case at trial

1. The accused proposes to raise three defences/partial defences at trial.
2. First, he disputes that he intended to inflict grievous bodily harm or kill his mother.
3. Secondly, he relies on self-defence which raises two issues: whether he believed, at the time he did the act that caused his mother's death, his conduct was necessary to defend himself from his mother and whether that conduct was a reasonable response in the circumstances as he perceived them.
4. Thirdly, he relies on the partial defence of substantial impairment contained in s 23A(1) of the Crimes Act which provides that: (1) A person who would otherwise be guilty of murder is not to be convicted of murder if- (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
5. As the statutory language makes clear, there are two limbs to the test for substantial impairment in s 23A(1). The first limb is that set out in s 23A(1)(a), and the second limb is in s 23A(1)(b). The first limb requires the accused to establish that at the time of the offence his capacity to understand events, to judge whether his actions were right or wrong, or to control himself was substantially impaired by his mental health condition(s).
6. There are two questions to be determined as part of the first limb: does the accused have a mental health impairment and if so, was he substantially impaired by it in one of the ways set in s 23A(1)(a). Beech-Jones J (as his Honour then was) observed in R v Quinn (No 2) [2016] NSWSC 1244 at [24] that there are thus in fact three elements for the defence to establish on the balance of probabilities which are: 1. That at the time of committing the act the accused was subject to an abnormality of the mind arising from an underlying condition as defined in s 23A(8) of the Crimes Act; 2. That at the time of the stabbing his abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a) (to understand events, judge whether his actions were right or wrong, or to control himself); and 3. That the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Submissions on behalf of the accused

1. It was submitted on behalf of the accused that a combination of factors relevant to the interests of justice in this case favour the granting of an order for trial by judge alone: in particular, the impact of prejudicial material relevant to the expert evidence.
2. It was submitted that the accused, by filing this application, has indicated that he has received legal advice and has elected to pursue an order for trial by judge alone for a charge of murder. This is a relevant matter to be taken into account on the application: see R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 at [99] and Redman v R [2015] NSWCCA 110 at [13].

The expert evidence

1. As for the expert evidence, it was submitted that the aspects of the accused's history and background that will be explored at trial include the following: 1. He has a lifelong history of heroin abuse, commencing when he was in his early teenage years and a more recent history of abusing benzodiazepine medications obtained through the "dark web" (Skinner [12]; Nielssen pp 4-5). His attempts at drug rehabilitation have been unsuccessful (Skinner [17], [61]-[64]; Nielssen p 5). 2. He has not maintained employment during his life owing to his drug abuse (Skinner [16]; Nielssen p 5) and was incarcerated for a number of years for robbery and theft offences committed to obtain money for drugs (Skinner [20]). 3. Justice Health records from 2013 indicate a history of depression and drug use (Skinner [67]). 4. In his early thirties, he survived an attempted suffocation by a cell mate when he was in custody, which contributes to his anxiety disorder (Nielssen p 3). 5. Since being in custody, he has received varying levels of psychological/psychiatric treatment and different medications, including anti-psychotics. He attempted suicide when he first arrived in custody and was managed by the risk intervention team. He has been diagnosed by various psychiatrists within Justice Health with PTSD (Skinner [68]-[83]; Nielssen pp 6-7).
2. Dr Nielssen specifically states in his report at page 8 that the diagnosis of depressive illness is made from the symptoms described by the accused, the history of treatment for depression confirmed in the medical records including those of Justice Health in 2013, and aspects of his recent presentation. The diagnosis of an anxiety disorder with features of PTSD is linked with his sexual abuse as a child and an assault from a cell mate during a previous period of custody.
3. It was submitted that in exploring the expert evidence the following highly prejudicial classes of evidence arise: 1. Evidence of significant prior illegal drug sourcing and use; 2. Previous acts of dishonesty which are relevant to the accused's relationship with the deceased both on the Crown and defence cases; 3. Time in custody for previous offences during which he was physically assaulted by a cellmate and which bear on his diagnosis; and 4. Time in custody since the offending including psychiatric treatment obtained in custody and self-harm attempts which bear on his diagnosis.
4. It was submitted that this prejudicial evidence fundamentally underpins the opinions expressed by each expert and is therefore relevant for the purposes of understanding and assessing the expert opinions.

Lay witnesses

1. In the written submissions reliance was placed on the fact that the Crown proposed to call evidence from three witnesses that the accused previously stole items from the deceased and pawned them to obtain money for heroin and that the deceased did not trust her belongings around the accused due to previous incidents. These witnesses were Janice Fowler, Coral Kane and Noel Cawthorne.
2. The statement of Ms Fowler at [30], [31] and [33] is as follows: "About the start of July 2022 Colleen called me from her phone. She was screaming at me and very upset. Eventually I calmed her down and she said some things had just happened. She said David told her there was something slipping off the clothes-line. Colleen walked down the steps towards the clothes-line and she heard her car starting up. She was quite slow getting back up the steps. When she got inside, she saw David was gone, the car was gone, and the television was gone. David had tricker her into going into the back-yard so he could pawn her television and she was hysterical. She was swearing and calling him names and was very difficult to calm down. I think it was that afternoon I spoke to Colleen and she had calmed down a bit. She said, Noel, the man from across the road, told her that he saw David closing the boot of the car that morning. Colleen said she made David take her to where her television was. She got the television back but it had cost her $700 in a matter of three weeks to retrieve her television after he pawned it without her permission. … About this time, in early July 2022, Colleen and I spoke on the phone. During one of the calls Colleen said she had told David that she would cut him out of her will if he did not repay money that he owed her and especially me. During a phone call, Colleen also said she had to lock her doors when she went out, because she was afraid David would steal her possessions. She also mentioned if she went out, she would take David with her so that he was never alone in the house."
3. It was submitted that it is difficult to see how these witnesses will give their evidence without reference to this inadmissible opinion of the accused's character coming out in evidence, including multiple references by Ms Kane to the accused's previous time in prison (see Kane [21]; [13]).
4. There will also be evidence about the actions of the accused later in the day after the offending, including the ingestion of Valium obtained from the "black market", the pawning of items belonging to his mother to obtain money for heroin and the purchase and use of heroin (CCS [17]-[34]).

Further submissions

1. It was submitted on behalf of the accused at the hearing of the application that a fair trial is unlikely in this matter if the accused was to be tried by a jury because the above matters in combination present a picture to a jury of the accused being a person of significant bad character even though they are not admissible for that purpose.
2. In relation to Ms Fowler, it was submitted that one of the central issues will be the reliability of the accused's version of events. The defence wish to lead evidence which put into perspective the degree of anger and frustration that the deceased was feeling towards the accused. Over the years this caused her significant difficulties, both financially and in terms of her frustrations with him not being independent, effectively resulting in her having to care for him at different times.
3. It was submitted that the accused's assault in custody is relevant as one of the factors which grounded Dr Nielssen's opinion as to the accused's anxiety.
4. Overall, it was submitted that the accused wants to be able to fully explore these issues and make forensic decisions without having to be concerned about the prejudicial effect of that evidence in front of a jury.
5. It was submitted that the evidence has the capacity to be substantially prejudicial, particularly the evidence about his previous dishonesty in relation to his mother, which could be an overwhelming matter for a jury. It was submitted that it would be very difficult for a jury to separate out his prior dishonesty from an assessment of the credibility and reliability of his account of events and his history.

Crown submissions

1. The Crown submitted that in light of the issues raised by the accused the evidence at trial will focus on: 1. The nature of the relationship between the accused and deceased in July 2022 leading up to "the argument"; 2. The accused coming to stay with the deceased and, in particular, his phone calls in the early morning of 28 July 2022; 3. The accused's conduct subsequent to the argument and prior to contacting triple-0 at approximately 5:18pm (some of which is captured on CCTV and is unlikely to be in dispute); 4. The various accounts given by the accused about the argument; 5. Forensic examination of the crime scene; 6. Expert evidence as to the injuries to the deceased and cause of death; and 7. Expert evidence as to the issue of substantial impairment.
2. It was submitted that the Crown does not propose to call Coral Kane or Noel Cawthorne although portions of paragraphs [19] and [27] of Mr Cawthorne's statement may be read to the jury on application by the defence.
3. It was confirmed that Janice Fowler will be called by the Crown but that the deceased's hearsay representations are restricted to paragraphs [30], [31] and [33] of her statement, referable to an incident at the start of July 2022 when the accused "pawned" the deceased's television and the deceased's concern at that time about the accused stealing her possessions.
4. The Crown accepted that this evidence has the potential to cause some prejudice but that it could be ameliorated.
5. As for the evidence of the accused's drug use, there will necessarily be reference to him referencing a "raging habit" and seeking to "get on" in the early morning of 28 July 2022 (and then subsequent to the alleged offence purchasing and using heroin).
6. The Crown does not propose to lead any evidence from lay witnesses that the accused was previously in custody. The only references to prior custody which may be relevant are contained within the two expert reports and the Justice Health records from 2013.
7. The Crown concedes it is inevitable that time in custody after the incident will be raised in the trial, as relevant to the reports of Dr Nielssen and Dr Skinner. This includes the various treatment and assessments of the accused since his admission to custody and whilst bail refused.
8. The Crown relied on the assumption that jurors will follow the directions of the trial judge in relation to what use can be made of any evidence which carries a risk of prejudice to the accused's case.

Relevant authorities

1. As Wilson J recently observed in R v Niguidula [2023] NSWSC 290 at [23]-[24]: "Much has been written in the jurisprudence, including in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, and in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [23] - [38] about the historical background to the default position that criminal proceedings should be tried by jury. Although it is not necessary to add to the jurisprudence here, it is important to note that a jury trial is ordinarily seen as one that provides a greater likelihood of an accused securing an acquittal than is the case for a trial by judge alone, whilst involving the community in criminal proceedings. Jury trials bring that great advantage to the administration of the criminal justice system, involving the community through its members bearing responsibility for the most significant decisions required to be made, in determining questions of guilt. To reserve decisions concerning guilt to a judge sitting alone heightens the likelihood of the community coming to regard the criminal justice system as the preserve of an unrepresentative minority, and thus outside the community's scrutiny or input. The ultimate risk in that scenario is that the administration of the criminal justice system will lose the support of the community."
2. The principles relevant to an application of this nature are derived from a number of decisions from the High Court, Court of Criminal Appeal and single judge decisions in this court. Applications under s 132 usually turn on their own facts and the statute confers a broad discretion: R v Homann [2018] NSWSC 198 at [6], [9] per McCallum J (as her Honour then was).
3. As Gleeson CJ observed in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7], trial by jury "has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards".
4. In the case of R v Belghar, McClellan CJ at CL undertook a review of the relevant authorities and set out the principles applicable to applications for a trial by judge alone order. In R v Villalon [2013] NSWSC 1516, Bellew J summarised some of these principles as follows at [20]: "(i) although s 131 provides for trial by jury 'except as otherwise provided', the section does not have the effect of creating a presumption that the trial should be with a jury, thereby casting a burden of proof on an accused person (at [96]; 25); (ii) although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a presumption of trial by jury is displaced. Given that each mode of trial has its particular characteristics, and depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury (at [96]; 25); (iii) subsection 132(5) acknowledges that when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople (at [96]; 25); (iv) the legislation does not require weight to be otherwise given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers that it is in the interests of justice to make the order (at [96]; 25); (v) the subjective views of an accused, and his or her belief that a jury trial may not be fair (as reflected in his or her desire to dispense with a jury) is a relevant factor to consider. However, the fact that an accused person desires a trial by judge alone is not as significant as the reasons for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial (at [99]; 26 and [102]; 26-27); (vi) Parliament has made plain by the enactment of s. 132(5) that it would be preferable in the interests of justice that there should be a trial by jury where an alleged offence involves the application of objective community standards (at [100]; 26); (vii) the granting of an application which is based upon the mere apprehension of prejudice in prospective jurors, and which is not based on evidence or a matter of which the court may take judicial notice, 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 (at [102]; 26-27); (viii) it is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result (at [107]; 27-28)."
5. In R v Dawson [2022] NSWSC 552, Beech-Jones J (as his Honour then was) observed the following at [10] regarding the phrase "interests of justice" in this statutory context (footnotes omitted): "Generally, the phrase 'interests of justice' envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also 'interests wider than those of either party' (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 ('Belghar'), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to 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."
6. Given the terms of s 132(5) of the CP Act, there have been a number of decisions which have confirmed the importance of juries determining trials in which a "community values" test is to be considered. These principles are relevant in the present application as the "second limb" of the partial defence of substantial impairment involves an application of community standards in determining whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: R v Gokhan Eyuboglu [2019] NSWSC 181 at [13] per Button J. It has been held that that question is ordinarily one that is best suited to determination by a jury: R v Hadler [2018] NSWSC 1151 at [60] per Wilson J. This does not however preclude the making of an order for a Judge alone trial in cases involving substantial impairment. As Button J went on to observe in R v Gokhan Eyuboglu at [26], that rule is not absolute and such issues are determined by judges and magistrates on a daily basis.
7. In R v Flame [2020] NSWSC 1013, Button J observed the following at [71]-[72] in relation to the defence of substantial impairment: "As for that component [the second limb test], I believe that it is quintessentially a matter for the reflection and discussion of twelve members of the community. In my respectful opinion, it is a question that is only answered with great difficulty -and perhaps not entirely satisfactorily - by a single person, who inevitably brings his or her individual if not idiosyncratic thoughts and feelings about the world and the human beings who inhabit it to the question. Other judges have spoken about the difficulty of grappling with the normative question: see, for example, the judgment of Hamill J in R v Hutchison & Wilkinson [2018] NSWSC 1759; as have I: see R v Eyuboglu [2019] NSWSC 181. And yet in my experience, juries have no difficulty in coming to a verdict that reflects their answer to the normative question: see as an example only R v Cadman [2019] NSWSC 634. That is understandable, because they engage in an intense process of discussion and reflection between a large number of persons in which their thoughts and feelings about the two different forms of homicide are able to be fully developed."
8. In R v Camilleri [2020] NSWSC 951; (2020) 287 A Crim R 85, Wilson J similarly held, at [67]-[68]: "It is ordinarily considered that the resolution of whether a s 23A(1) partial defence is available to an accused person involves balancing the character of the act causing death against the severity and impact of the accused person's impairment, and that that judgment is one requiring the application of community standards and moral values. That has been the view taken in, amongst others; R v Bretherton [2013] NSWSC 1036; (2013) 233 A Crim R 427 at [22]-[27]; R v Villalon [2013] NSWSC 1516 at [35]; R v Haydar [2017] NSWSC 127 at [36]; R v Homann [2018] NSWSC 198; and in R v Ahmed [2019] NSWSC 55 at [15]. In R v Hucker [2002] NSWSC 1068 Howie J described s 23A as 'giving rise to an issue which is quintessentially one for a jury' (at [2]). Having regard to s 132(5) of the CP Act, the determination of whether the accused has available to her the partial defence is one of a character that the legislature clearly intended should be resolved by a jury. In Bretherton at [22] Harrison J referred to the Second Reading Speech that accompanied the introduction of the present s 23A of the Crimes Act by the passage of the Crimes Amendment (Diminished Responsibility) Bill 1997 (NSW). In it the Attorney gave considerable emphasis to the intention of the legislature that the resolution of the second element of a defence of substantial impairment was a 'moral assessment by the jury as to whether the evidence warrants the reduction from murder to manslaughter'. In making the opinions of experts on that question inadmissible, the focus was placed wholly on the moral assessment by the tribunal of fact, a tribunal that the Parliament considered should ordinarily be a jury."
9. Finally, one of the decisions relied upon by the accused in this case was Redman v R in which R A Hulme J (with whom Hoeben CJ at CL and Adams J agreed) stated the following regarding trial by judge alone applications, and prejudicial evidence introduced by an accused, at [16]: "The significance of prejudice must necessarily vary from case to case, depending on the nature of the allegations, the nature of the defence and, of course, the character of the potential prejudice. Although I would not wish to suggest that this is a rule of universal application, there is to my mind an important distinction between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other. Of course, if one could be comfortably satisfied that the jury would follow directions to evaluate the evidence without allowing it to prejudice their view of the applicant this issue might be less significant. I would respectfully agree with the observation of Hamill J that '…many trials have been conducted in circumstances involving significant prejudice and juries have been capable of discernment and discretion in putting aside their emotional responses and prejudices' (Simmons at [53]). Furthermore, it is to be assumed that a jury will generally act on the instructions that it is given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). Nevertheless, the law itself acknowledges there are cases where, for example, evidence must be excluded because of its propensity to give rise to unfair prejudice (see s 135(a) of the Evidence Act 1995 (NSW)); Hamill J cited other examples (Simmons at [88])."

Consideration

1. I am to consider this application on the basis that I may only make an order for trial by judge alone if I consider "it is in the interests of justice to do so": s 132(4) of the CP Act. I am satisfied that the accused has received legal advice in relation to this application: s 132(6).
2. The accused ultimately relied on five aspects of the case collectively in support of his contention that he could not get a fair trial before a jury. It was not contended that any of these matters would on their own be such as to require a judge alone trial. These aspects are: 1. Evidence of his past drug use; 2. Evidence of his past relationship with his mother including his dishonesty in obtaining money for heroin; 3. Evidence of his past and present incarceration; 4. Evidence that he was previously assaulted in custody in 2013; and 5. As yet unidentified evidence that the accused might want to give if challenged on his version of events.
3. Before turning to consider these matters, it should be noted that the Crown does not propose to adduce much of the material in the brief which has given rise to this application and has suggested ways to limit any prejudice in relation to others.
4. Turning first to the evidence of the accused's heroin addiction. Given that murder trials often concern deaths that occur in the criminal milieu and in the context of drug deals, I am not satisfied that the accused's drug addiction in and of itself is form of prejudice that cannot otherwise be ameliorated at the trial. It seems to me that the accused's drug addiction (and use) could be raised with the jury panel and be the subject of appropriate directions.
5. As for the evidence in relation to the accused's relationship with his mother, it is now to be confined to a discrete period prior to the incident and relies on a specific occasion when the deceased pawned her television in the past. The question of the admissibility of that hearsay evidence under s 65 of the Evidence Act 1995 (NSW) will be a matter for the trial judge: R v Singh (No 4) [2021] NSWSC 75. Although it does not appear to be disputed that at the time of the alleged offence there were ongoing tensions between the accused and the deceased over money, his drug addiction and his living arrangements, the most prejudicial aspects of the relationship are not being led by the Crown. I note that there is nothing in the accused's history to suggest any previous violence so there is no risk of such evidence being inadvertently revealed.
6. As for the limited evidence to be given by Ms Fowler, I do not accept the contention made on behalf of the accused that it would not be possible to instruct Ms Fowler as to what parts of her statement are admissible and areas and topics not to give evidence about (including opinion as the accused's character). That happens regularly in criminal trials and there was nothing put before the court to suggest Ms Fowler had any particular inability to follow such a direction.
7. As for the evidence of the accused's incarceration, it falls into two time periods. In relation to the first time period, the only matter that the Crown relies upon are the Justice Health records from 2013. The Crown indicated in its submissions that there are also medical records from the Bay Village Medical Centre to be tendered which means that the Crown does not need to identify the specific source of any of the medical records and there could be agreed facts about them. Counsel for the accused accepted during the hearing of this application that there could be agreement about those records.
8. The second period of incarceration pertains to mental health treatment he has been receiving in custody since his arrest, referred to by both Dr Nielssen and Dr Skinner. As I observed during the hearing of this application, members of the community would expect that a person charged with the murder of their mother would be kept on remand until their hearing. It is not uncommon for juries to be aware that a person charged with murder is on remand. I am satisfied that an appropriate direction about that would ameliorate any prejudice.
9. I have carefully considered the submissions concerning the assault described by the psychiatrists when the accused first entered custody in 2013. It was not apparent why, if it was necessary to refer to that incident at all, it could not be referred to as an assault by a "roommate" without needing to go on and describe that as being a roommate in a custodial setting.
10. The difficulty in assessing the relevance of this prior assault to the expert opinions is unclear but there certainly does not appear to be any obvious link between the context of the assault being by a cellmate and the diagnosis, or to the charge of murder.
11. In addressing the significance of this prior assault in oral submissions it was submitted that Dr Nielssen will be asked how the accused's anxiety and PTSD features manifested itself when he was, effectively, "locked in the house" with his mother because of his Covid symptoms. There are a number of difficulties with this submission, the most significant one being that there is no evidence before the court that the accused was ever locked in the house or that he ever felt locked in the house. He has never suggested this in any of the accounts he has previously given including to either Dr Nielssen or Dr Skinner. That is no doubt because it is contrary to the evidence which is that the accused wanted to leave the house to do jobs and shortly after his mother died, he immediately did leave the house to pawn her property and buy heroin and was seen out and about that day.
12. On this issue, the Crown submitted that if the accused gave evidence at trial that there was such a connection (which has not been raised this far) then the Crown was open to further discussion about that at that stage, but on the current evidence any potential prejudice could be ameliorated.
13. It was also submitted that the expert witnesses have referred to the accused's history in their reports which have included references to prior custody. Again, it is not apparent in their reports that that history is relevant to their assessments, as the above summaries of their reports make clear. It is not uncommon that such references in reports are simply not adduced in evidence.
14. Further, as can be seen in the conclusions of the two experts on the question of impairment, they are not far apart. Both Dr Nielssen and Dr Skinner opine that the accused had a "mental health impairment at the relevant time", they just differ as to how they would describe it. Although it was submitted that there will be extensive cross-examination of the experts, such challenge would appear to be directed at whether the "impairment" the accused suffered from was "significant", an issue neither of the experts addressed in their reports as it is a matter for the jury. It is to be presumed that the expert evidence will focus on that issue.
15. Finally, as to the accused's preference for a judge alone trial and his desire to not feel constrained in what he might say in evidence, I have carefully considered this submission and the decision in Redman v R relied upon in support of it. It should be noted that Redman v R pertained to a very different factual scenario.
16. It was submitted on behalf of the accused that he will be challenged on at least some significant aspects of what he said, in particular what he said about his mother's behaviour, and that in responding to that the accused should be able speak freely and not feel constrained by concerns that he would be introducing prejudicial material. Although I accept that as a general proposition, an accused person should not be restricted as to how they run their defence, when considering where the interests of justice lie, I can only rely on the material put before me. The prejudicial aspects of the defence to be raised by the accused said to fall within the principles derived from Redman v R were not entirely clear. I mean no criticism in that regard, but the point can be made by the following example given during oral argument.
17. It was submitted that prejudice would arise from the accused's evidence that the 10 Valium tablets he took before he left the house were purchased on the dark web. In response, the Crown submitted it would not be leading any reference to the dark web. It was then submitted that the accused may be challenged as to whether or not he did take the Valium given there is no record of him obtaining a prescription for that drug. In response the Crown responded that not only will it not be suggested he purchased the Valium on the dark web the Crown would not be challenging the assertion that the accused took some Valium that day, only as to how many he took. It is anticipated expert evidence will be adduced at trial on that issue.
18. Thus, ultimately, I am unable to conclude that the accused would be prevented from raising matters in his defence that might be prejudicial without a clear understanding of what they might be. That includes any potential evidence about the prior assault in custody which I have already addressed above.
19. Overall, not only am I satisfied that any prejudicial matters raised by the accused can be cured by limiting the tender or cross-examination and/or by directions, a further significant factor in favour of a trial by jury is that the substantial impairment defence involves an application of objective community standards. I have set out the relevant principles above and the accused did not dispute them. Although the jury would not turn to consider the issue of substantial impairment unless they were first satisfied beyond reasonable doubt that the accused intended at least to inflict grievous bodily harm during the assault of his mother, and that he did not believe his actions necessary to defend himself from her, the partial defence will nonetheless be the subject of extensive evidence and submissions at trial.
20. Finally, I have considered whether this is a matter in which I could not be satisfied that any prejudice could be cured by the trial judge. As Brennan J (as His Honour then was) observed in R v Glennon (1992) 173 CLR 592 (at 614-615): "Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced."
21. Similarly, in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15, McHugh J observed at [31]: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
22. Despite this oft cited observation by McHugh J, as Button J observed in R v Adams (No 2) [2016] NSWSC 1359 at [55]-[56]: "It is undoubtedly true that the criminal justice system proceeds on the assumption that juries obey direction about all manner of things, including pre-trial publicity, information on the internet, the exercise of the right to silence, and the criminal standard of proof. But as Gleeson CJ and Gummow J said in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], there must also be recognition that that rule is not an absolute one. There, their Honours said: '[13] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.' Furthermore, for over a century both the common law and Parliament have accepted the proposition that juries will not always analyse probative evidence without emotion: the common law by way of the discretion first identified in R v Christie [1914] AC 545; (1914) 10 Cr App R 141, and Parliament by way of the analogous evaluative judgment contained in s 137 of the Evidence Act."
23. The accused placed reliance on the decision in R v Adams (No 2) but, again, that was a very different case in which, in the sexually motivated murder of a woman, the Crown relied upon tendency evidence from three other young women who all alleged that they had been violently sexually assaulted by the accused as well. It was in that context that Button J concluded at [58]: "Indeed, I consider that members of a jury would recoil in dismay and abhorrence when they hear the details of the many things the accused is alleged to have done to four separate women. That compelling factor leads me to the view that it is in the interests of justice for this trial to proceed by judge alone."
24. Overall, I have considered the accused's position and the nature of the prejudicial material and weighed it against steps that can be taken to ameliorate it, the issues at trial and the need for the application of objective community standards in the trial and have concluded that it would not be in the interests of justice to order a trial by judge alone in this matter.

Orders

1. Accordingly, the application for trial by judge alone is refused.

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: 21 November 2024