R v Niguidula

Supreme Court of NSW|2023-05-17|Before: Dhanji J, Cavanagh J, Hulme J, Wilson J

Judgment

On 17 May 2023, the accused made an application pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) for leave to make an application pursuant to s 132(1) that she be tried by judge alone. On that same day, I made an order refusing leave and indicated that I would provide reasons later. These are my reasons for that order.

Background

On 2 July 2021, the accused was arraigned before R A Hulme J on an indictment charging her as follows: Count 1: Between 9 November 2019 and 14 November 2019, at South Wentworthville in the State of New South Wales, did assault Rhonie Apostol, thereby occasioning actual bodily harm. Count 2: On or about 17 November 2019, at South Wentworthville in the State of New South Wales, did murder Rhonie Apostol.

The evidence led on the application

The accused relied on the affidavits of: 1. Rose Cetin dated 17 May 2023; [1] 2. Rose Cetin dated 16 May 2023; [2] 3. Rose Cetin dated 4 May 2023; [3] and 4. Anneka Narayan dated 5 May 2023. [4]
No additional evidence was led by the Crown. The matter was however argued on the assumption that I was aware of the issues in the trial. In particular, it was assumed that I was aware of the nature of the case against the accused as set out in the Crown Case Statement and the accused's intention to raise the partial defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW). The anticipated evidence of Drs Henderson and Martin was informative of this last issue.

The circumstances leading to the renewed application

As noted above, the discharge of the jury was precipitated by reference in the Crown's opening address to the anticipated evidence of Coy Apostol.
It is necessary to recount something of the procedural history, particularly in the context of the accused's reliance on the delay (or more properly the desire to avoid further delay in the context of that past delay) as a factor in her application. In this context, it must be acknowledged that the accused has been in custody from the time of her arrest on 11 December 2019, which, at the time of the application, was a period in the order of three and a half years. It must be accepted that that is an extremely long period to be awaiting trial. As noted above, the matter was initially listed for trial on 21 March 2022 but did not proceed. At least part of the reason the matter did not proceed on that date was that the Crown had not provided certified translations of various intercepted conversations, although the defence had also had difficulties obtaining instructions due to COVID-19 related restrictions. The matter was then listed for trial on 31 October 2022 but was vacated as a result of the late service of Dr Henderson's report raising the issue of substantial impairment. It is unnecessary to delve into any greater detail to apportion blame. It is sufficient to observe that, irrespective of where responsibility lies, the trial has been much delayed.
The history referred to above was, of course, known to Wilson J when her Honour made her determination. Further delays did, however, build on that past delay. Those further delays are unfortunate, particularly in the context that the matter should have been ready for trial in March and then in October 2022.
Pre-trial disclosure, designed to avoid such delays, was required leading into the May 2023 trial in accordance with the ordinary course. The Crown filed its disclosure and the defence filed its response. Crown's response to the defence notice pursuant to s 144 of the Criminal Procedure Act was due on 27 February 2023. The Crown was also directed to file any response to the judge alone application by 24 February 2023.
The parties first became aware the matter was allocated to me as a result of an email sent by my Associate on 27 February 2023 indicating it would be listed before me for mention on 2 March 2023. This was done in the expectation that all pre-trial disclosure requirements had been complied with. On that date, the Crown indicated that the prosecution response had not yet been provided but would be attended to. Further, it was not until that date, 2 March 2023, that the Crown advised that the judge alone application filed by the accused in October 2022 was not consented to, with the resultant need for that application to be determined (cf s 132(2) of the Criminal Procedure Act). I note that the Crown prosecutor then appearing and who appeared at the trial had, at that time, only recently been briefed in the matter. The matter was adjourned for further mention on 7 March 2023.
On 7 March 2023, the Crown confirmed that its reply had been provided. There was, additionally, discussion in relation to the anticipated calling of overseas witnesses by Audio Visual Link (AVL). I indicated that obtaining evidence from an overseas witness by AVL was not necessarily straightforward, and the parties were referred to the decision of Basten JA in Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986.
Subsequently, on 11 May 2023, well after the trial was due to start, the Crown prosecutor advised that it was intended that Coy Apostol appear by AVL and that, if required, a formal application could be made. I was informed by the Crown that there was, in the circumstances of the case, including that the witness was in the United States, no barrier to calling the witness by AVL based on her location. It was indicated by me that if, as noted by the Crown, there were arrangements in place such that a formal mutual assistance request did not need to be made (a reference to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth)) that would not present a problem, but there should, nonetheless, be a formal application. [5]
Before adjourning on 11 May 2023, I again raised the issue of the AVL application in relation to Coy Apostol. I had, by this stage, been informed that the witness was reluctant to travel to Australia to give evidence due to the potential difficulty in her ability to return to the United States. I raised with the Crown whether there was any issue with making an application that the proposed witness give evidence by AVL in these circumstances and was told it was "[c]ertainly something that further consideration will be given to by the Crown". [6] Matters remained in that state until 15 May 2023. On that date, after the parties had opened and some evidence had been led, before adjourning for the day the following exchange took place: [7] "His Honour: Is there anything from the parties before we adjourn? Crown Prosecutor: No, thank you, your Honour. His Honour: All right. Thank you. Can I just enquire of you, Mr Crown, the issue in relation to the witness Geraldine in the United States. Has that situation progressed? Crown Prosecutor: In relation to Coy, yes, your Honour. His Honour: Coy, I'm sorry, yes. Crown Prosecutor: Yes. There hasn't been a resolution as yet. We're alive to what your Honour had raised, and I can say to your Honour that instruction is being obtained in relation to that. His Honour: I'll leave that in your hands. I'll assume that you're doing what needs to be done. Crown Prosecutor: Yes, it is being attended to, if I can put it that way, yes, your Honour. His Honour: All right. I'll adjourn until 10 o'clock tomorrow."
As indicated above, the accused was advised shortly before court commenced the following day that the Crown did not intend to call Coy Apostol, a matter which was confirmed before me when court resumed. The Crown had advised the accused by email the previous evening that this possibility was under contemplation. As to the reason for this development, the Crown prosecutor simply said: [8] "All I can say, your Honour, is that the Crown is not in a position to call that witness. That's all I'm effectively permitted to say."
What has been left entirely opaque is why the position was crystallised at such a late stage. Perhaps more significantly, it is similarly opaque as to why the case was opened on an assumption the witness would be called when it would appear the situation was unfolding.
As noted above, the discharge application spawned the renewed application for trial by judge alone. It can be accepted, based on the above, that the discharge came about through no fault of the accused. It was, however, necessary to consider the matter not on the basis of fault per se, but rather on the basis of the fact of the discharge of the jury, including the circumstances in which it was made, and the relevance of that matter to the application for leave under s 132A of the Criminal Procedure Act.

Leave under s 132A of the Criminal Procedure Act

Sections 132 and 132A of the Criminal Procedure Act provide as follows: 132 Orders for trial by Judge alone (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) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (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. (5) 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. (6) 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. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that - (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. 132A Applications for trial by judge alone in criminal proceedings (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.
In Alameddine v R [2022] NSWCCA 219 the Court (Beech-Jones CJ at CL, Hamill and N Adams JJ) said (at [17]-[18]): "17 … As noted by Hamill J in Simmons (No 4) at [21], in the second reading speech for the Bill introducing s 132A the Attorney General stated: 'The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge.' (emphasis added) 18 This statement reflects the observation by Gleeson CJ in R v Perry (1993) 29 NSWLR 589 at 594 about the rationale for the predecessor to s 132A: 'One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes some way towards eliminating such appearances if elections have to be made before the trial date.' (emphasis added)"
And at [22]: "Concerns about judge shopping can be addressed by the parties in their explanations to the Court but also by the procedures adopted by the courts. Sections 132 and 132A concern trials on indictment which take place in either the Supreme Court or the District Court. Both between and within those Courts different allocation and listing systems apply. As noted by Hamill J in Simmons (No 4), trials in the Supreme Court, judges are commonly allocated to a judge more than 28 days prior to the allocated date for the hearing. However, allocations are not fixed in stone. Applications for judge alone trials in the Supreme Court are commonly heard by a judge other than the judge allocated to hear the matter. If during or following a (successful) application for a judge alone trial there remains a concern about at least the appearance of judge shopping then, if possible, the matter can be allocated elsewhere. ..."
In the present case, the accused made plain that one of the bases on which she sought to be tried by judge alone was increased efficiency and a reduced prospect of delay. This meant that the accused sought not only that the trial proceed by judge alone but that it recommence immediately on that basis. In effect, the application was threefold. Firstly, the accused sought that leave pursuant to s 132A of the Criminal Procedure Act be granted, secondly, that the application pursuant to s 132(1) be granted, and thirdly, the matter continue without further delay. This last aspect, as a practical matter, would have had the effect that it was necessarily me that would hear the judge alone trial. While, as noted above, the practice of the Court is to allocate different judges to the application for a judge alone trial and the trial itself (see Alameddine v R at [22]) the practice is not unwavering. In this regard, the accused pointed to the decisions of R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785 and R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511 as examples where the same judge had heard both the application for judge alone trial and the trial itself.
Given the above, there was at least a potential concern with the appearance of judge shopping. However, in this context, it is relevant to note that when the accused's application that the matter be heard by judge alone was first made in October 2022, the trial had not been assigned to me. Further, when Wilson J heard the application on 23 March 2023, she advised the parties that, in the event the accused's application was successful, it would be allocated to another judge. [9] Knowing this, the accused continued with her application before Wilson J. Having regard to these matters, any appearance of judge shopping was vastly reduced. However, it was not altogether eliminated. There have been a number of pre-trial rulings in this matter. While these pre-trial rulings have not all been one way, at the very least there has been some exposure of my thinking on some issues. However, having regard to the broader history, any appearance of judge shopping did not weigh heavily against the accused on this application.
The relationship between the time limit in s 132A of the Criminal Procedure Act and the appearance of judge shopping appears to have been regarded as a primary consideration in cases considering leave pursuant to s 132A: see Alameddine v R; R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259. Those authorities do not define it as the exclusive consideration. In the present case, a matter which led to the application being made within the 28-day cut-off period, was the prior application and determination of the accused's judge alone application. That is to say that, as a result of the making and refusal of that previous application, matters stood as they were until the commencement of the present trial. The earlier determination and the circumstances in which that earlier determination was revisited is relevant to the consideration of leave. There is some overlap between this consideration and the substantive merits of the application itself, which is also a relevant consideration to an application for leave pursuant to s 132A: R v Alameddine at [24].

The basis of the application for judge alone trial before Wilson J

Before Wilson J, the accused argued that it was in the "interests of justice" as that expression is used in s 132(4) of the Criminal Procedure Act, that she be tried by judge alone based on the following (see R v Niguidula at [17]): "(a) the trial will be of shorter duration, lessening the risk that the accused might descend into unfitness during the proceedings; (b) a judge alone trial will minimise or obviate the risk that the tribunal of fact will misuse evidence relevant to the defence of substantial impairment by wrongly having regard to it in determining whether the Crown can prove that the accused voluntarily did the act causing the accused's death; and (c) a judge alone trial will deliver significant efficiencies, including by avoiding the need for foreign language recordings to be played in full, thereby reducing the estimate of trial."
The accused maintained the above submissions in this present application, although the second submission required modification in light of the accused's change of plea.
Her Honour dealt with each of these considerations. It is not necessary to repeat her Honour's analysis here. It is pertinent to note that with respect to concern as to the potential deterioration of the accused's mental health, there was no further evidence led on the application for leave, and nothing had occurred in the course of the matter giving any greater substance to this concern.

Matters relied on that are additional to those relied on before Wilson J

In addition to the matters relied on before Wilson J, the accused, on this application, relied on publicity given to the Crown's opening address before the first jury and the further delay. My consideration of these matters is discussed below.

Publicity

As observed above, the Crown prosecutor opened to the first jury on the basis of anticipated evidence from a witness that will not be called. The (then) jurors that heard that address have been discharged and will play no further part in the trial. There was, however, some publicity given to the Crown's opening, with the possibility that it reached members of the panel from which a new jury was to be selected. The affidavit of Ms Cetin of 17 May 2023 annexes an article written by Mr Jack Gramenz for Australian Associated Press (AAP) which was reproduced in various publications. Insofar as that article appeared in newspapers outside the Sydney metropolitan area, it is unlikely to have come to the attention of (then) potential jurors. The article did appear on the Seven News Internet site, as well as AAP's own Internet site. There is, at least, a possibility that these websites might have been accessed by members of the panel. However, given that the report was of a case that had clearly started, any potential juror, knowing they were part of the panel, would not have read the article with a piqued interest on the basis of any prospect they might be hearing the matter.
The article is headed "Woman 'furious' in Sydney airport toilet before alleged murder". It begins: [10] "Landing in Sydney at the end of a flight she boarded after learning her boyfriend was having an affair, Jenny Niguidula was said to be furious. The man she is accused of murdering a week later told his sister as much after they landed from Philippines, while Niguidula spent hours in the women's toilets at Sydney International Airport crying."
The headline and opening paragraphs are sourced in the Crown's opening. The Crown prosecutor told the jury: [11] "When they ‑ that is the accused and the deceased ‑ landed in Sydney, the deceased spoke with his sister and he told his sister that the accused, Jenny Niguidula, had found out about the affair at the Manilla airport and that the accused was furious. This is what the deceased, Rhonie Apostol, had said to his sister, Coy, about the accused."
Further into the article, it reports: [12] "His sister was expected to recall Apostol describing Niguidula flying into 'rages', then coming down, before remembering the affair, and raging again."
This was based on the following aspect of the Crown's opening: [13] "And, since the discovery of the affair, Rhonie Apostol told his sister that the accused would go into a rage every now and then, then calm down but remember the affair again and go into a rage again. So this is obviously in the period between the discovery of the affair and his death on 17 November of 2019."
The portions of the news article extracted above, as can be seen, faithfully represented the corresponding parts of the Crown's opening. Those parts of the Crown's opening were, in turn, based on the contents of Coy Apostol's statement. As far as I am aware, the report remained available online. In this regard, the accused submitted there were practical impediments to her seeking any form of "takedown" order.
The word "furious" used in the article comes from Coy Apostol's statement. It is, however, not in issue that the accused was extremely upset with the deceased as a result of her discovery of his affair with Ms Eugenio. As noted above, there is evidence, which I did not understand to be in dispute, that the accused was crying and upset after landing at Sydney airport. There is evidence of a physical altercation outside the terminal building. The accused has admitted to assaulting the deceased, occasioning actual bodily harm to him by striking him with a LED lamp. She admits to an unlawful and dangerous act that was a substantial cause of his death. In addition, it was expected there would be evidence of messages sent by the deceased to Coy Apostol attaching photographs of his injuries including the injury to his forehead as a result of being hit with a lamp.
It is also to be noted that the accused intends to rely on the partial defence of substantial impairment by abnormality of mind pursuant to s 23A of the Crimes Act. (It is agreed by the parties the form of the provision in existence prior to 27 March 2021 applies.) Dr Henderson, in his report of 7 October 2022, expressed an opinion that, at the relevant time, the accused was suffering from a borderline personality disorder. Dr Henderson stated that, in the context of her condition, events surrounding the accused's relationship with the deceased, as set out in the Crown Case Statement, "would have represented an intolerable sense of abandonment sufficient to trigger uncontrollable rage and dissociation". [14] In Dr Henderson's opinion, the accused's capacity to understand events, to judge whether her actions were right or wrong, and to control her actions were all impaired.
I was of the view that there was minimal risk of prejudice to the accused as a result of the publicity given to the Crown's opening address to the first jury. Firstly, the level of publicity was not, in relative terms, high. Further, while potential jurors may have seen it, none would have read it with a sense that they might be serving on the trial given that the trial had already started. In these circumstances, it is unlikely that any such potential juror would have given the article close attention. Having regard to the other evidence available in the case, together with the evidence it is anticipated will be led on behalf of the accused, the news articles did not create any significant prejudice. Further, having regard to the evidence it was expected would be led, I regarded it as most unlikely that any such potential juror retained any recall of the additional aspects of the evidence to be led through Coy Apostol.

Delay and efficiency

While the relative efficiency of a judge alone trial was relied upon before Wilson J, the issue was re-ventilated before me in the context of the additional delay that had occurred subsequent to her Honour's decision, and the concern to obtain greater efficiency in that context.
I accept there is greater efficiency in a judge alone trial. In the context of a relatively short trial, I do not accept that the efficiencies would necessarily be large. Before a jury, on a conservative estimate, the trial was expected to take three weeks. There is clearly a limit on how much shorter the trial could be if heard by judge alone.
I accept that the accused's submission with respect to delay should be seen in the context that she has suffered additional delay through no fault of her own. The loss of time as a result of the discharge, while not insignificant, was two days. Indeed, the discharge application was made and granted in the knowledge that a new jury panel was available the next day, thereby reducing the disruption.
It is true that there have been other delays both before and after Wilson J's decision. With respect to delays after her Honour's decision (and obviously not considered by her Honour) as noted above, the trial was due to commence on 1 May 2023. Despite pre-trial hearings taking place the previous week, the trial did not commence until 15 May 2023 (empanelment having taken place the previous week). While the accused sought to attribute blame for the delays to the Crown, I did not accept that one side or the other was solely responsible for the delay. The accused was late in raising a number of admissibility arguments. Her change of plea led to further delays to re-adjust the trial plan in the context of the new issues. Much of the time that had been spent on arguments based on issues prior to the change of plea was wasted. While, following the change of plea the accused sought to proceed more quickly than the Crown, she also sought to re-agitate at least one matter that had been the subject of a previous ruling as a result of the change in the issues. As noted above, the parties were also unable to agree on aspects of the evidence to be led based on the new issues, again leading to further argument before me.
The accused submitted that the interests of justice in favour of a judge alone trial were tipped by the cumulation of factors including not just past but also ongoing delay based on the history of the matter to date. The accused's counsel submitted: [15] "We will have more delays, your Honour, I anticipate, given the disagreement at the bar table about evidence about Dr Martin, about issues about what went to Dr Henderson, we are unlikely to have consent as to how evidence is being presented to your Honour because of the way in which these issues are argued. I have no difficulty with any party to the litigation forcefully arguing their case. There is such a disagreement here that it has taken up days and days and days and pages of submissions for your Honour to rule on those matters. Those things will continue in this trial. That is why your Honour knowing the issues and knowing what we have put in writing, we make the application."
I accepted the accused's desire to have the trial proceed to completion without further delay or mishap. I do not (and did not), however, infer that past mishap is (or at least should be regarded as) a reliable indicator of the prospect of future mishap. I, further, have serious reservations that it could be in the interests of justice to allow a judge alone trial on the basis of one party's view that disagreements between the parties will disrupt the smooth running of the trial, at least in the circumstances that presented in this case. In this matter, much time has been spent prior to the empanelment of the jury to resolve the issues between the parties. I proceeded on the basis of a legitimate expectation that, having done so, further disruptions would be kept to a minimum. Despite the history of the matter, I was of the view that there was no reason it should not proceed, like any other matter, without undue interruption.
Ultimately, irrespective of where blame lies, I did accept that there had been further delay on top of already significant delay. In that context, potential efficiencies of a judge alone trial had greater attraction. It was, therefore, a matter to which I had regard.

Conclusion

As discussed above, the accused made three primary submissions before Wilson J. With respect to the first of those submissions, the risk the accused might descend into unfitness, there was no evidence of anything having occurred between the date of her Honour's decision and the hearing of this application before me, suggesting the risk had either materialised or increased.
With respect to the advantage of efficiency in a judge alone trial, as observed above, this matter was entitled to some weight having regard to the unanticipated delays that have been experienced.
The third of the matters ventilated before Wilson J was the difficulty for a jury in compartmentalising the issues of proof by the Crown of a voluntary act causing death, and the evidence going to the partial defence of substantial impairment. In short, the defence case, at the time of her first application for a judge alone trial, prior to her change of plea, was that the Crown could not prove a voluntary act on her part resulting in death, but if it could, and could also prove her murderous intent, the accused had available to her the partial defence of substantial impairment. In order to establish the partial defence, the accused was expected to lead expert evidence predicated on her responsibility for the killing and tending to prove that her understanding of events, ability to judge whether her actions were right or wrong, and control of her actions were impaired. That evidence is such as to make it more likely that the accused did an act that resulted in the deceased's death, undermining her case with respect to her responsibility for the killing itself. Before Wilson J, the accused argued that the complexity involved in this reasoning was such that it was in the interests of justice that there be a judge alone trial.
By the time of this present application, the accused had accepted responsibility for an act resulting in death. The perceived difficulty relied upon before Wilson J was, consequently, not as acute. While there remains an issue as to proof of an intention to cause death or grievous bodily harm, the psychiatric evidence does not undercut the accused's case with respect to this element in the same way. Rather, an inability to understand events, make judgments, or exercise control, is apt to support an unrestrained physical action, but does not, at least to the same extent, support such an action being necessarily accompanied by a murderous intent. This aspect of the accused's case before Wilson J was, as a result, substantially weaker on the application before me.
For the reasons given above, I did not regard the publicity surrounding the Crown's opening as adding to the accused's case in any material way.
Thus, the only aspect of the accused's case for judge alone trial that has advanced since the time of Wilson J's judgment is the increased concern with respect to efficiency and delay.
The above matters fell to be considered in the context of the accused's intended reliance on the partial defence of substantial impairment in s 23A of the Crimes Act. With respect to this matter, Wilson J said (at [46]-[48]): "46 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". 47 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 presents 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. 48 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."
Like Wilson J, I regarded the moral judgment involved in the determination of whether the partial defence is available as a feature strongly favouring trial by jury. I do not suggest it will always be determinative. However, nothing that has occurred since Wilson J's decision led me to a view that that matter, favouring as it does a trial by jury, was outweighed by other considerations in favour of a trial by judge alone. In those circumstances, I formed the view that leave should be refused, resulting in my order of 17 May 2023.

Endnotes

Exhibit VD-8
Exhibit VD-9
Exhibit VD-7, tendered on an earlier application and read on this application.
Exhibit VD-E, tendered on an earlier application and read on this application.
Tcpt, 11 May 2023, p 81 (48)-(50)
Tcpt, 11 May 2023, p 91 (9)-(10)
Tcpt, 15 May 2023, p 173(9)-(31)
Tcpt, 16 May 2023, p 176(6)-(7)
Exhibit VD-8, [3]
Exhibit VD-8
Tcpt, 15 May 2023, pp 112(50)-113(4)
Exhibit VD-8
Tcpt, 15 May 2023, pp 113(50)-114(2)
Exhibit VD-1, p 13
Tcpt, 17 May 2023, p 12(12) 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: 09 June 2023

Criminal Procedure Act 1986(NSW)ss 132, 132A, 144

Crimes Act 1900(NSW)s 23A

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