R v Niguidula [2023] NSWSC 290 | Case summary

Consideration

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.
That the Parliament intends, despite the availability of judge alone trials, to require questions involving the application of objective community standards to continue to be resolved by juries is plain from the terms of s 132(5) of the Act. The provision does not require a conclusion that any trial involving such a question cannot be determined by a judge sitting alone. It does, however, give emphasis to the need for a trial to be conducted by that means only where it is in the interests of justice. As was observed in R v Stanley [2013] NSWCCA 124, at [42]: "In deciding whether or not to make an order for trial by judge alone the Court must decide where the interests of justice lie. What are the interests of justice can be ascertained only by reference to the facts and circumstances of the case under consideration. The Court should not assume that either form of trial is more desirable than the other: Arthurs v State of Western Australia [2007] WASC 182 at [75]; R v Belghar at [49]. The interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made: R v Belghar at [96]. An applicant bears no burden of proof. However, the applicant does bear an evidentiary burden. The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. As Chesterman JA said in R v Fardon at [81], an accused cannot have a trial by judge alone for the asking. See generally the judgment of McClellan CJ at CL in R v Belghar at [96] - [97]. See also the judgment of Bellew J in R v Sean Lee King [2013] NSWSC 448 at [40] - [46]."
The phrase "the interests of justice" is one of wide meaning. It takes into account the accused's wishes but does not give that feature determinative weight. What the phrase may mean was discussed in Belghar. There, McClelland CJ at CL said, at [96] - [103]: "[…] The question for the court is whether it considers it is in the interests of justice to make the order." In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, 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. Section 132(5) of the Act 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. Furthermore, as the length of trials grow, problems with juror satisfaction with the process have increasingly been reported: New South Wales Attorney-General's Department, Report of the Trial Efficiency Working Group (2009) at 59-61. Furthermore, as Heydon J recognised, the duty of a judge to give reasons can operate to safeguard the public interest. In so far as the origin of a trial by jury was to provide a protection for the accused, in that he or she would be tried by their peers, where the accused applies in accordance with s 132 of the Act for a judge-alone trial, it is plain that the accused has, with proper advice, determined that the protection is not required. For this reason, 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, must be a relevant factor: Arthurs v State of Western Australia [2007] WASC 182 at [79]. The protection which trial by jury is assumed to provide to an accused person by requiring a unanimous verdict of lay judges is no longer of relevance. Of course, the position as determined in Brown v The Queen (1986) 160 CLR 171; HCA 11 is otherwise with respect to a Commonwealth offence, where s 80 of the Constitution controls the situation. However, it must be remembered that Brown was a decision as to the meaning of s 80 of the Constitution and was not, at least so far as the majority were concerned, determined by where the interests of justice may lie. Rather, their Honours concluded the position was constrained by the words of the Constitution. Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, "in the interests of justice", that there be trial by jury. However, where, as in the present case, the trial will not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor. However, the decision that the judge is required to make must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused's trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused's apprehension is soundly based. The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice pursuant to s 144 of the Evidence Act 1995 (NSW), 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: Gilbert v The Queen (2000) 201 CLR 414; HCA 15 at [13]. The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial. "[…] The court must determine whether it is in the interests of justice in the particular case to provide for a judge-alone trial".
The phrase is one that may encompass a wide range of considerations: State of Western Australia v Rayney [2011] WASC 326. In the present context, the interests of justice must comprehend the interests of the accused, who has applied to have her case tried by a judge alone, necessarily waiving her right to a trial by jury and the perceived benefits that a trial of that nature may bring. The phrase also encompasses the interests of the Crown and the community.
One feature to be considered is the question of whether a jury could perform what the accused's counsel described, in oral submissions, as "the mental gymnastics" required to consider evidence for one purpose but not another. The accused's argument is that a jury would find it difficult, notwithstanding any directions that may be given by the trial judge, to compartmentalise evidence that may be led to go to the partial defence of substantial impairment, but which is not led or available to go to the question of whether the Crown has proved that the accused carried out the act causing death, with the required mental state for criminal liability to arise. The accused contends that a jury would be likely to impermissibly consider the expert evidence concerning her BPD and the manner in which it manifests, including in outbursts of intense emotion and impulsive acts, when deciding whether she stabbed the deceased in November 2019, to her prejudice.
Whilst it is always at least possible that a jury might misuse evidence, the accused's submission falls to be assessed in accordance with a long line of authority that holds that juries ordinarily follow the directions of the trial judge: "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": Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13].
There can be exceptions to the "general rule", but I am not persuaded that this case would be such an exception. There is nothing unusual or extraordinary about a jury being asked to listen to evidence that is to be applied for one purpose but not another. A frequently seen example is that of a joint trial of accused persons, where a jury hears evidence going to the case against one accused that is not led or admissible against the other, and which may even be prejudicial to that person. In such instances the jury is directed to have regard only to the evidence led against the particular accused when considering a verdict relevant to that person, disregarding evidence led against any other accused. Juries are well able to comply with directions of that nature.
In the accused's trial, the question of substantial impairment will only arise if the jury is satisfied to the criminal standard that the Crown has proved all the essential elements of the offence of murder. That is clear from the terms of s 23A(1) of the Crimes Act, which provides "a person who would otherwise be guilty of murder…". Only if all issues relevant to proof of the charge are resolved in favour of the Crown does substantial impairment arise for consideration. Thus, the jury will likely be directed to give attention first to the question of whether the Crown has proved the elements of murder to the criminal standard, without considering any question or evidence of impairment. It will be a very straightforward matter for the trial judge to identify the evidence that is relevant to proof of the elements of murder in summing up the trial and direct the jury to consider only that evidence at that stage of deliberations, setting aside evidence of impairment. I do not regard compliance with a direction of that nature as beyond the average jury. It is not a complex exercise, and juries are regularly directed in this way, with no reason to conclude the direction is ignored or defied. The Court does not accept that there is a real possibility that a jury would misuse evidence placed before it.
The next feature to consider is that of efficiencies in the trial process. There is no doubt that a trial conducted before a judge alone is ordinarily of shorter duration than a jury trial, not least because not all procedural steps, such as empanelment and summing up, are necessary where there is no jury. Of itself, however, I doubt that efficiency is a consideration of much weight. If the legislature and, by extension, the community, valued savings of time and resources over the participation of members of the public in criminal trials, s 131 of the Act would likely be in the opposite terms to those that now apply. Trial by jury is such a central tenet of our criminal justice system that it is beyond considerations of cost savings.
In any event, it is easy to overstate the extent of the efficiencies inherent in a judge alone trial. In written submissions counsel for the accused pointed - as an example of what would be required in a jury trial - to the need before a tribunal of fact comprised of 12 jurors to play the whole of numerous conversations involving the accused that were spoken in Tagalog. It was submitted that such a time-consuming process would not be required before a judge alone. In fact, such a time-consuming process should not be required or undertaken regardless of the composition of the tribunal of fact. It is difficult to envision any circumstances in which there could be evidentiary value in asking a tribunal of fact to listen to many hours of audio recordings where those recorded speak in a language other than English. The only sensible way to present evidence of this nature is by way of an agreed translated transcript prepared by an appropriately qualified interpreter. That proposition holds good whether the fact finder is a judge or a jury.
There should always be scope for the parties in a trial to agree upon sensible measures to present evidence in the most efficient way possible, such as tendering evidence that is not disputed and requires no clarification by way of an agreed statement pursuant to s 191 of the Evidence Act 1995 (NSW). Juries are as capable of understanding and following evidence efficiently presented as is a judge. In reality, the only certain time savings of a judge alone over a jury trial is in the absence of the empanelment of a jury and in summing up the trial to it. That saving is not a consideration of great weight.
Shortening the trial is a relevant consideration insofar as it relates to the possibility that the accused could become so stressed or distressed by the trial process that she became unhelpfully demonstrative in a way a jury might not understand, or became unfit to be tried. The former, it is argued, could occasion prejudice to her. The latter would require the trial proceedings to be paused or terminated whilst her fitness was considered. However, there is little evidence to establish that there is a real possibility of that occurring, other than what might be regarded as the observations of Ms Cetin, and what might be regarded as the informed speculation of Dr Henderson.
Of the former, those things observed in the accused's behaviour - tearfulness in discussing Mr Apostol's death, heightened anxiety in readying her trial, and an inability to take in information - are features that might be seen in any accused person in the hostile environment of a prison, who is facing trial for a very serious charge, in a foreign country where support is extremely limited. There is no well founded reason to conclude that the accused's anxiety will ultimately become unfitness or result in a presentation that a jury may find unappealing. Concerns that this may occur are largely speculative.
If examined carefully, Dr Henderson's concerns might also be characterised as involving a degree of speculation. Whilst the accused argued that the Court had to accept Dr Henderson's opinion in that regard, principally because there was no expert evidence to contradict it, that argument overlooks the ordinary process that applies when assessing the evidence of an expert. The Court is not bound to accept Dr Henderson's opinion, even if it is understood as being an opinion in favour of a judge alone trial.
There is an issue between the parties as to the latter aspect of Dr Henderson's reports. The Crown points out that the doctor's concern seems to be directed to the length of any trial rather than to its mode. The accused relies upon Dr Henderson's reports to support the contention that the concern for the accused's fitness relates to a trial before a jury, but not a trial before a judge. Dr Henderson did not himself draw that distinction, although he did appear to proceed on the understanding that a jury trial would be longer and more stressful than a trial before a judge alone.
It is not clear what information Dr Henderson had in coming to that understanding. As I have already observed, there is no reason why a trial before a jury cannot be conducted with efficiency; indeed, that should always be the case. Counsel for the parties should be able to work together in preparing the trial to reduce the number of witnesses called so that only witnesses whose evidence goes to some fact in issue, or who are required to answer some criticism or expand upon some piece of information, are called at trial. Other evidence can be taken by tender of the witness' statement, or by way of an agreed statement of fact. Exhibits should be placed before the tribunal of fact in the most readily comprehensible way, as with the example of audio recordings in a foreign language. A jury trial need not be a long, drawn-out, procedure. A jury trial will always contain procedural elements that do not form part of a trial before a judge siting alone, but that should be the main difference between them.
There is no reason to suppose that a trial before a jury is inherently more stressful than a trial before a judge; both must lead to a high degree of stress for any accused person, particularly one charged with such a serious offence as is the accused.
Whether there is a prospect for the accused's mental condition to deteriorate even to the point of becoming unfit must be largely speculation, albeit informed speculation. It is relevant to note that there appears to have been no suggestion at any time after the accused was arrested and charged on 11 December 2019 that she was not fit to stand trial. That is consistent with the fact that, prior to entering custody, the accused operated her own market research company, a company that appears to have employed a number of staff and operated internationally. The company seems to have been successful; apparently delivering a very good lifestyle to the accused. The accused must be concluded to have managed her business over time despite having, in Dr Henderson's opinion, a BPD of some severity.
The fact that the accused has operated in the international business world whilst suffering with a BPD tends to militate against a conclusion that her condition is so parlous that she is in danger of descending into florid or acute mental illness if subjected to a trial by jury. Dr Henderson did not attempt to reconcile the accused's illness with her capacity to function in the business world; nor did he have regard to her ordinary high-level functioning when considering the impact upon her of a trial.
I am not persuaded that there is a real possibility that the accused could or would become so acutely ill during a jury trial that she may exhibit extreme behaviour or become unfit to be tried.
It is accepted that a criminal trial is very stressful for an accused person, and it must be particularly difficult for an accused who is being tried in a foreign country, away from family and friends. Whether a judge alone trial will be less stressful in those circumstances however, is not certain.
There are measures that can be taken, even in a jury trial, to minimise the stressful nature of the proceedings, such as varying or reducing sitting times, with breaks more frequently taken. It may be that a trial before a judge alone is, nevertheless, more flexible, but that does not necessarily equate to a less stressful procedure. If the accused was to become ill, the trial can be adjourned briefly whilst she is assessed. The jury can be given appropriate directions to accommodate such a situation. There is no reason to conclude that fair trial cannot be held before a jury.
The feature of most significance in deciding this application however, is the prominence in the proceedings of a defence of substantial impairment. Ordinarily, the resolution of whether a partial defence under s 23A(1) of the Crimes Act 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. That judgment is one requiring the application of community standards and moral values, that being the view taken in, amongst others; R v Bretherton; 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 at [2], Howie J described s 23A as "giving rise to an issue which is quintessentially one for a jury".
Having regard to s 132(5) of the Act, the determination of whether the accused has the partial defence available to her is one of a character that the legislature clearly intended should ordinarily 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 usually be a jury.
Section 132(5) of the Act is a feature that militates strongly in favour of a trial by jury in the accused's case, where a moral judgment will have to be made balancing the act, if proved, of stabbing the deceased causing his death, with the nature and extent of the accused's impairment.
In making that assessment there may be another feature that is usually regarded as best resolved by a jury. Although the accused asserts that there will be no issues of credibility to determine, it may be the case that the credibility of the accused herself is in issue. That is so because the tribunal of fact will be called upon to assess the reliability of expert opinion that is founded to a significant degree upon the accused's account of her history of mental illness, unsupported by objective historical medical evidence. Perhaps because the accused is a foreign national, there is no evidence at all from her country of origin to corroborate the accused's account to Dr Henderson of a long history of mental dysfunction. At least at face value, her account of serious mental impairment is somewhat at odds with her history as a successful businesswoman administering and managing an international business.
In Doney v The Queen (1990) 171 CLR 207; HCA 57 at [214] the High Court observed: "…the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful."
That statement has resonance in this matter.
Having considered all of the evidence and the submissions of the parties the Court is not persuaded that it is in the interests of justice for the accused to be tried by a judge alone. To the contrary, this is a matter where the values and standards of the community will have a significant role to play. The determination of whether an accused person should face punishment for manslaughter rather than murder is a difficult one, involving fine moral judgments. It is one best informed by the breadth of life experience readily found among 12 members of the community, but which one judge cannot replicate or reproduce.

R v Niguidula

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