Nolan v R (No 2) [2023] NSWCCA 248
Miller v The Crown [2015] NSWCCA 206
252 A Crim R 486
Patel v The Queen (2012) 247 CLR 531
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 22
Ilievski v RNolan v R (No 2) [2023] NSWCCA 248
Miller v The Crown [2015] NSWCCA 206252 A Crim R 486
Patel v The Queen (2012) 247 CLR 531
Judgment (2 paragraphs)
[1]
EXTEMPORE JUDGMENT (REVISED)
HIS HONOUR: The accused in this trial is charged with the murder of his sister. The trial commenced on Monday last week, that is 8 April 2024. The accused pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted and the trial proceeded on the charge of murder.
Yesterday afternoon an application was made by notice of motion brought by the accused seeking a discharge of the jury. An affidavit of the accused's solicitor Mr Rohan Harrison affirmed 16 April 2024 was read in support of the application.
The application has been precipitated by recent tragic events at Bondi Junction and Wakeley. The affidavit sets out some matters that have occurred in the trial to date and then refers to events at Bondi Junction, the stabbing at Wakeley and annexes various media articles and extracts from social media with respect to those events.
Those events, particularly the event at Bondi Junction, have received extremely widespread media attention. It is well-known that at Bondi Junction on a Saturday afternoon while people were going about ordinary activities in a shopping centre seven people were killed; five women and one man died from stab wounds. According to media reports, another 12 persons were stabbed, but not fatally, prior to their attacker being shot dead by a police officer. The events are tragic. They are affecting. Subsequent to that event, at Wakeley a 15-year-old, according to media reports, stabbed a priest in the course of a religious service
To explain the relevance of those events to the application it is necessary to know something of the nature of the case against the accused. The relevant events in this trial took place in Deniliquin, a town in the south-west of New South Wales. It is not in dispute that the accused had been a user of methamphetamine and cannabis for some years. He was in a relationship with the mother of his children for some years up until June 2021 when that relationship broke down. Within a relatively short time of the breakdown of that relationship the accused moved into a house with his sister.
There is evidence of various strange behaviours exhibited by the accused in the lead-up to the events of 17 November 2021. It was on that date that he killed his sister Jody James with whom he was living. He did so in what can only be described as a brutal fashion, striking her with a hatchet, with a rock and kicking her, to the area of her head. He subsequently doused her with accelerant and set fire to her body. There was no issue that at the time the accused was suffering some form of psychosis. It is not in dispute he held a belief his sister was possessed by demons and that his acts were in response to a form of necessity in his own mind as a result of his sister's possession.
In terms of the facts of the killing itself there is no dispute. the accused admits the physical acts and, if he is found criminally responsible, that he held the relevant intent to establish the offence of murder. The accused is not seeking an acquittal at his trial. Rather he seeks, primarily, a special verdict of act proven but not criminally responsible.
The basis of that defence is that he was, on his case, suffering from a mental health impairment within s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") such that he did not know the nature and quality of his act or if he did he did not know that it was wrong. The accused in the alternative relies on the partial defence of the substantial impairment in s 23A of the Crimes Act 1900 (NSW), in essence, that he was substantially impaired by a mental health impairment and that his capacity was affected in a relevant way sufficient to warrant his conviction for manslaughter rather than for murder.
The prosecution and the defence each rely on expert evidence. It is anticipated Professor Greenberg will give evidence on behalf of the Crown; Drs Ellis and Farrar are to give evidence on behalf of the accused.
The real issue in the case is whether the accused, at the relevant time, was suffering a mental health impairment within s 4 of the Act. If he was suffering from such an impairment it appears there is no issue that he either did not know the nature and quality of his act or if he did he did not know that it was wrong. That is, if the mental health impairment is established, the accused will establish his entitlement to a special verdict.
Section 4(1) of the Act provides:
4 Mental health impairment
(1) For the purposes of this Act, a person has a mental health impairment if -
(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
Section 4(2) provides a number of examples of a mental health impairment including of potential relevance here, "a substance-induced mental disorder that is not temporary."
There, again, appears to be no issue that the accused was affected in the manner required by s 4(1) of the Act. The real issue appears to be the operation of the exclusion in s 4(3) of the Act that subsection provides as follows:
4 Mental health impairment
…
(3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by -
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
The parties accept the case turns on the Crown's ability to prove on the balance of probabilities that the impairment suffered by the accused was not caused solely by the temporary affect of ingesting a substance.
I have taken some time to set out the background to the case. That is because the task that the jury is required to perform is relevant to the application for discharge. That is, the jury's capacity to deal with the issues in the case having regard to extraneous events is what is called into question by the accused on the application.
Turning then to the question of the discharge of the jury. The starting point must be the accused's entitlement to a fair trial. That is a trial where the issues are presented by the parties and determined impartially by the jury. While it is true that juries are assumed to follow directions and bring an impartial mind to the task, unaffected by irrelevant or prejudicial matters; any assumption is not absolute. Various provisions of the Evidence Act 1995 (NSW) operate on the premise that certain matters will be prejudicial to the extent that despite their relevance a jury should not be exposed to them.
The cases also establish there will be instances where material to which a jury is exposed is such that it cannot realistically be expected they would be unaffected by it; see, for example, Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29. Thus the criterion for determination of an application to discharge a jury is the maintenance of the fairness of the trial. The test is one of necessity: see Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 440. The test of necessity should not be misunderstood as creating too high a bar. Necessity is to be understood in the context of the accused's entitlement to a fair trial. Principles to be applied have commonly been stated in the context of the receipt of inadmissible material but are readily adaptable to the present circumstances where extraneous events are said to affect the capacity of the jury and consequently the fairness of an accused's trial. In Crofts at 440-441 the Court said:
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."
Key considerations relevant to the determination was set out in Miller v R [2015] NSWCCA 206; 252 A Crim R 486 at [126]:
"The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCC 129 per Hall J at [265] ff. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631:
(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.
(2) In deciding an application to discharge the jury, key considerations include:
(a) the fairness of the trial: Crofts at 440;
(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441;
(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;
(d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;
(e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;
(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.
(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.
(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that "[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict", and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can "say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable".
(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind:
"… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript": Crofts at 440-441.
(6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge "is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind": Crofts at 441, but rather must apply the broader test stated at (4) above.
In R v Ahola (No 6) [2013] NSWSC 703, Button J remarked that trial judges are neither required nor encouraged "to take an overly sensitive approach to the accidental receipt of prejudicial material". That passage was adopted in Hamide v R at [115]; see also Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 at [89].
Turning then to the present case. Mr Harrison distils the essence of the basis for the application in his affidavit. At paragraph 22 it is stated:
"It is unlikely the jury will be able to ignore the onslaught of information surrounding the violent, unprovoked attacks with weapons. The community's tolerance for this type of act is expected to likely be quite low given the commentary currently available from the community on social media."
With respect to the stage of the case, it is fair to say the case is at a relatively early stage. The trial commenced on Monday when the jury were empanelled and openings were heard, evidence was led over the following days with the jury being sent away on Thursday afternoon. The jury have been away since that time. The reason for the delay was the unavailability of the Crown's expert witness. It was anticipated the jury would return yesterday to hear that evidence. That did not occur as a result of complications arising from Professor Greenberg's late return to the country and issues with respect to his proposed evidence. As a result the jury were put off until today. In the meantime, as I understand it, progress has been made. Issues with respect to the evidence are expected to be resolved and indeed agreement reached in terms of the three expert witnesses giving evidence concurrently.
The accused foreshadowed that in the event the jury was discharged a judge alone application would be made. Such an application would require leave pursuant to s 132A of the Criminal Procedure Act 1996 (NSW). Subject to leave being granted it was indicated by the Crown that it was likely that the application would be agreed to. If that were to transpire, pursuant to s 132A(2) of the Criminal Procedure Act, there would be no discretion in the Court with respect to ordering a judge alone trial.
The result is that if events unfolded on the discharge in that way, which is at least a very significant prospect, there would not be necessarily any loss of time. That is on the basis, as was suggested the trial could continue before me with the evidence having thus far been heard being tendered. It is not necessary at this stage to determine whether that would be an appropriate course. There are arguments of efficiency in favour. There are also arguments against having regard to the role I have taken in the trial thus far on the assumption I would not be determining the issues of fact. Nonetheless, even if the matter was not to immediately proceed before me subsequent to any discharge, it is a relatively short trial and would in the ordinary course be expected to be heard later this year. Those matters are not, however, determinative.
The case has been started with a jury. That jury has been sworn to try the issue. In that way the community has been engaged in this process. There must be sound reason to discharge the jury part-way through that process.
The accused points to concerns he has with this particular jury and its capacity to follow directions. Mr Harrison, in his affidavit at paragraph 8, points out that during the course of the trial the court officer reported a question from a juror with respect to a media article. The affidavit indicates that the nature of the question was whether the juror was permitted to bring into court material they had researched on the internet and social media to show the jury.
I do not intend to suggest anything adverse with respect to Mr Harrison's recounting, but would not accept that the event could properly be described as the juror having researched on the internet or in the media in the sense that suggests an active delving into media reports or internet content. Rather the event appears to have been the reading of a newspaper report. The jury were not told it was impermissible to read such media reports. They were told that they should have no regard to them, it being emphasised that their knowledge and understanding of the case would be far better than that of a journalist reporting multiple cases in the course of their employment.
Insofar as the juror brought the article with her and into the jury room, I was informed the article had been placed in an envelope and not circulated. The juror apparently asked the court officer of the appropriateness of doing so before exposing fellow jurors to it. The actions of the juror in checking the appropriateness of sharing what one can assume was a commonly available article to me suggests a strong desire on the part of the juror to ensure that her actions conformed with the instructions that had been given. I would not read anything into that event so as to undermine confidence in this jury.
A second event was referred to and that is that on Thursday, 11 April 2024 at the conclusion of the trial, counsel for the accused was leaving court when he was spoken to by a juror. The account of the event reported to me was that the juror had said to counsel words to the effect of, "So that's what you look like" presumably commenting on counsel's appearance in civilian clothes and without a wig. The interaction was from close proximity and it seems it was not the single sentence but somewhat more persistent. Counsel reported he held up his hand to shield himself and turned and walked away from the juror. That, it must be accepted, is evidence of a juror failing to follow a direction that had been given to the jury as a whole. In the course of my opening remarks in the trial I directed the jury that:
"It is also important that during the trial you have no contact with anyone connected with the trial in any way other than, obviously your fellow jurors. It is your obligation to ensure that does not occur and nothing else takes place which could cast doubt on the fairness of this trial." [1]
The jury were then told an example of the need to avoid contact was that if they were to see people around the court building connected with the trial they should avoid contact, and the reason for doing so was explained. It is concerning that at least one juror appears not to have taken in that instruction or, if they have, have disregarded it. That event will at the least require a direction reminding the jury, as a whole, of the need to avoid contact with participants in the trial.
It is, as submitted by the accused, relevant to the discharge application. An aspect of the application is, of course, the capacity of the jury to follow directions and to put extraneous matters out of their mind. But the particular event, that is making a comment to counsel, is very different to a failure to bring an impartial mind to the determination of the issue in this case. It might be that the juror thought that her verbal joust was amusing. It may be that no response was expected. It may be that it was thought, in that context, harmless.
In a narrow sense that is true, and certainly it is not suggested that it is an event that of itself would provide a basis for the discharge of the jury. It is, however, a matter of importance in terms of ensuring the divide between the jury and other participants in the trial to ensure both a fair trial and the appearance of a fair trial. Having said that, however, the event is very different to a breach of a juror's obligation to bring an impartial mind to the determination of the issue in this case.
With respect to the events at Bondi Junction and then at Wakeley, it is difficult to understate the impact of these events on the community. The community has understandably been horrified. I doubt that anyone, at least in the greater Sydney area, has not been affected. The stories that have emerged are multiple, tragic and intertwined.
The accused points to media reports linking, in particular, the Bondi Junction event with mental illness and to references to drug use. Extracts from social media show a range of views which might be expected. Some of these views are to the effect it is too easy to resort to the excuse of mental illness in the face of horrific actions. The point seems to be that a more punitive approach is appropriate. Other views are more sympathetic to persons with mental illnesses and raise concerns with respect to the adequacy of services.
I can accept there are some common features particularly between the events at Bondi Junction and the present case. Those features pointed to by the accused are the use of a weapon; the fact that the victims were largely women and certainly it appears that women were in the Bondi Junction event were targeted; that the events occurred against a background of a perpetrator with a mental illness; together with reports of drug use including methamphetamine.
Whilst those similarities can be acknowledged the events have, in my view, a substantially different quality. The killing for which the accused is on trial was not an attack on strangers in a public space involving multiple victims. Whilst it is true the victim of the attack was a woman, it is not suggested that the accused targeted her based on her gender. Rather it was an attack on his sister, a person he loved and with whom he was living, based on his belief that she was possessed by demons.
I accept that too much should not be expected of a jury. In the impermissible material cases a jury may be exposed to facts specific to a particular case or accused in the course of a trial. In those cases where the extraneous material is relevant to the issues the jury are required to determine, it may be overly optimistic to think that a jury is able to simply put that information to one side. Clearly, it will all depend upon the nature of the material and the issues in the case.
In the present case I am not dealing with extraneous material directly relevant to the facts in issue. While I accept the community has been affected and continues to be affected that does not mean there has been a loss of ability to reason. I am not of the view there is a real risk in this case that the jury will not be able to reason impartially such that the fairness of the trial would be affected. As I have explained, the events themselves are quite different. It is not immediately obvious that the events at Bondi Junction will impact on the task the jury is required to perform. Events at Wakeley add to a general concern but are of a different nature again. I am particularly mindful in coming to my view that the question for the jury is a decidedly narrow one. That is, as I have explained, the determination of whether the exclusion in s 4(3) of the Act applies. That is to be determined on an analysis of the evidence of the expert witnesses, including the foundations for their opinions.
There is, in my view, no real basis to think that the jury will somehow be less sympathetic to the accused in determining this question. It is also important to bear in mind in coming to this view the accused, in seeking the verdict he seeks, is not suggesting he should or would be released, as has been explained to the jury and will be explained again. The effect of the verdict will be that the accused will remain in a secure facility and that detention will continue until such time as he is not a danger either to others or to himself.
To discharge the jury on the basis sought would, in my view, be to take "an overly sensitive approach" to the circumstances. It would suggest a lack of trust in the jury which, in my view, would be to do them a disservice. Indeed at a time when the community is affected there is a strong argument for the continued engagement of the community through the jury system in cases such as the present. This jury will be exposed to expert opinions and given an understanding of the operation of mental illness and how a forensic patient is dealt with. There is much to be said for the engagement of the community in that process through this jury. Of course, that cannot be at the expense of a fair trial for the accused.
For the reasons I have given, I am not of the view there is real risk that the fairness of the trial will be adversely affected.
The application for a discharge of the jury is refused.
I will hear from the parties as to whether any directions are sought and, if so, in what form.
[2]
Endnote
Tcpt, 8 April 2024, p 16(46)
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Decision last updated: 26 April 2024