R v Poynton

The Accused's Response to the Charges

1. The Accused offered pleas of guilty to manslaughter on arraignment for each of the murder charges which were rejected by the Crown. Accordingly, the Accused is proceeding to trial on the murder counts.
2. Mr Wilson SC submitted that the Accused's offer to plead guilty to manslaughter signified a narrowing of the issues to be litigated at trial. Both deceased died as a result of injuries sustained when they were struck by pellets discharged from a shotgun. It is accepted that the Accused fired the shotgun which inflicted the fatal injuries.
3. Mr Wilson SC accepted that the objective evidence to be adduced by the Crown would point to an intention to kill each of the deceased persons. He noted that the Crown case was based upon the evidence of a number of witnesses together with interviews between the Accused and police officers. He anticipated that most of this evidence would not be contested although some aspects of the evidence of a few civilian witnesses may be.
4. Mr Wilson SC noted that the real issue at the trial will be whether, at the time when the Accused fired the shots which killed both deceased, he was mentally ill to the extent that he should be found not guilty on the grounds of mental illness or whether he was substantially impaired and therefore guilty of manslaughter.
5. In addition, expert medical evidence will be called by the Crown and the Accused. The Crown will call Professor David Greenberg, who examined the Accused for the purpose of unrelated proceedings in 2012 as well as for the purpose of this case. Professor Greenberg's report dated 8 May 2017 raises significant questions about the credibility of the Accused's account of events which are pertinent to the diagnosis of psychiatric conditions in the Accused.
6. The Accused will call Dr Olav Nielssen, Dr Gerald Chew and Dr Jeremy O'Dea with the possibility that Dr Andrew White might also be called.

Procedural History in the Court

1. It is appropriate to note the procedural history of this matter before this Court.
2. On 13 May 2016, Campbell J found the Accused was unfit to be tried: R v Poynton [2016] NSWSC 615.
3. On 29 July 2016, the Mental Health Review Tribunal conducted a hearing and determined that the Accused was then fit to be tried with a determination to this effect being made by the Tribunal on 5 August 2016.
4. On 17 November 2016, Wilson J found that the Accused was fit to be tried: R v Poynton [2016] NSWSC 1623.
5. Following this finding, the Accused was subsequently arraigned and pleaded not guilty to each charge with the trial date being fixed, as previously noted, for 18 June 2018.

Some Relevant Principles

1. This application is made well before the trial date and with the identity of the trial Judge being unknown to the parties (it will not be me). The rationale underlying the determination of a s.132 application in this way was adverted to by me in R v McNeil [2015] NSWSC 357 at [8]-[11]: "8 Although the s.132 application is proceeding before me, I will not be the trial Judge. 9 The bringing of the application in this way, well in advance of the trial, accords with an apparent statutory purpose that an application for a Judge-alone trial should be made (at least ordinarily) without knowing the identity of the trial Judge. 10 In the course of the second reading speech for the Courts and Crimes Legislation Further Amendment Bill 2010, which introduced s.132A, the then Attorney General, Mr Hatzistergos, said (Hansard, Legislative Council, 24 November 2010): '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.' 11 It has been observed that earlier versions of ss.132-132A had been drafted to avoid the appearance that the accused person was making an election in the light of the knowledge of the identity of the trial Judge: R v Perry (1993) 29 NSWLR 589 at 594; R v Coles (1993) 31 NSWLR 550 at 552-553; R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [20]-[29]."
2. Where the Accused applies to be tried by a Judge alone and the Crown does not agree, the Court may make an order for trial by Judge alone if it considers it is in the interests of justice to do so: s.132(4) Criminal Procedure Act 1986. Without limiting s.132(4), the Court may refuse to make an order for a Judge-alone trial 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: s.132(5).
3. It has been said that, despite the terms of s.131, there is no presumption that a criminal trial should proceed with a jury, thereby casting a burden of proof on an applicant under s.132 to displace such a presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25 [96], 29-30 [118]; R v Stanley [2013] NSWCCA 124 at [42]; R v Villalon [2013] NSWSC 1516 at [20].
4. Although a s.132 applicant does not carry a burden of proof, he or she does bear an evidentiary burden: R v Stanley at [42]. The "interests of justice" test in s.132(4) confers a wide discretion on the Judge determining the application: R v Stanley at [23].
5. Section 132(5) is not an exhaustive statement of the circumstances in which an order may be refused. Rather, it provides illustrations of circumstances in which refusal may occur. The legislature has provided some specific examples to be considered in this respect. Section 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 lay people: R v Belghar at 25 [96]; R v Villalon at [20].
6. In R v Stanley, Barr AJ (Macfarlan JA and Campbell J agreeing) said at [42]-[43]: "42 … 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]. 43 In weighing the concerns of the applicant the Court must have regard to any means available to allay them. The Court should also bear in mind that the interests of the accused are not necessarily the interests of justice. The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 at [7]."
7. In forming a view as to what the interests of justice require, a balancing of various interests is required, including the interests of the parties and also larger questions of legal principle, the public interest and policy considerations: Landsman v R (2014) 88 NSWLR 543; [2014] NSWCCA 328 at 550 [69]. The important role of juries in the administration of criminal justice has been emphasised: R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 at 262 [24]; R v Stanley at [43]. This factor bears upon issues of policy and the public interest, which arise for consideration in determining what the interests of justice require in a particular case.
8. It has been said that the decided cases reveal that Judge-alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the Judge is not satisfied that a fair trial can be achieved with a jury. At the same time, it was said that an order is not to be made because the Judge has a preference for trials without a jury because (for example) a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run or a "correct" result is more likely: Decision Restricted [2017] NSWCCA 197 at [11] (Basten JA).
9. Where a partial defence of substantial impairment is raised to a charge of murder, it is necessary for the tribunal of fact to consider (if other aspects are established) whether "the impairment was so substantial as to warrant liability for murder being reduced to manslaughter": s.23A(1)(b) Crimes Act 1900. This is a task for the tribunal of fact, which must approach the task in a broad commonsense way involving a value judgment. It is a quintessential jury issue: Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at 224 [33]-[35]; R v Bretherton [2013] NSWSC 1036 at [25]-[27]; R v Obeid [2015] NSWSC 897 at [87]; R v Haydar [2017] NSWSC 127 at [36]-[37].

Submissions of the Parties Submissions for the Accused

1. Put shortly, Mr Wilson SC relied upon the following matters in support of the application: 1. the Accused had made an election to proceed without a jury; 2. the offences are so horrifying, and will arouse such emotion and prejudice, that a jury (despite directions) will not be able to objectively assess the psychiatric evidence so that there is a real and substantial risk that directions from the trial Judge will not be sufficient to overcome prejudice arising in these circumstances; 3. in particular, there may be photographs of the deceased female which will be tendered as part of the narrative of the offence committed against her; 4. the Crown case taken as a whole will inevitably lead to a prejudicial reaction against the Accused on the part of the jury so that it would be extremely difficult for a jury to act dispassionately, objectively and judicially; 5. the evidence will disclose that the Accused has committed other offences such as the supply, use and possession of "Ice" and the possession of a stolen motor cycle, together with his history of drug use and other features of his personal history; 6. there are many witnesses who are (or possibly are) illegal drug users particularly of "Ice" including the Accused's sister; 7. there is a risk that a witness might behave in such a way as to result in the discharge of the jury; 8. the history of the Accused as set out in the psychiatric reports will disclose that he has committed and been sentenced for offences when he was a juvenile at a time when he was first seen by Professor Greenberg in 2012; 9. there is only one issue in the trial which will involve the application of community standards in accordance with s.132(5) being the substantial impairment issue under s.23A Crimes Act 1900 - there are no live issues of intention or self-defence for a jury to consider; 10. the estimate for the trial would be four-to-five weeks before a jury, but a Judge-alone trial would take about two weeks and would be run with a considerably reduced witness list; 11. a Judge-alone trial, with the narrow issues identified, would allow the issues of mental illness and substantial impairment to be the central focus involving the calling of the expert psychiatric evidence - where five psychiatrists are to be called to give evidence about complex diagnostic matters going to two different tests about which there is disagreement, an experienced Judge is better equipped than a lay jury to resolve the issues of fact, law and medicine involved as the tribunal of fact; 12. there is an issue as to whether the Accused would be able to cope with a jury trial run over four weeks and remain fit to be tried - the atmosphere in a courtroom with a trial by jury is likely to contribute to stress upon the Accused which would be less if the Accused is to be tried by a Judge alone; 13. the Accused has had difficulty coping with being transported in the Corrective Services van to and from Court and this may add to the stress and anxiety affecting the Accused at a longer trial.
2. Whilst acknowledging that Professor Greenberg has raised significant issues concerning the credibility of the account of the Accused with respect to the circumstances of the offences and the defence of mental illness and the partial defence of substantial impairment, Mr Wilson SC submits that the resolution of credibility issues does not necessarily lend itself to trial by jury as opposed to a Judge-alone trial. Submissions for the Crown
3. The Crown emphasised that there were significant issues concerning the credibility of the Accused and the accounts which he had given to the psychiatrists and that such an issue was better suited to resolution before a jury. It was submitted that this is not a case where the dispute is confined to competing psychiatric diagnoses concerning the Accused. Rather, there is a substantial dispute concerning the credibility of the Accused which constitutes the factual foundation for any of the opinions of the psychiatrists who have assessed him.
4. The Crown emphasised, as well, the quintessential jury issue involved in the second leg of substantial impairment under s.23A Crimes Act 1900.
5. The Crown case is that the Accused is embellishing his claims of psychotic thoughts and perceptions and that the defence of mental illness and the partial defence of substantial impairment are contrived. The Crown noted the opinion of Professor Greenberg that the defence of mental illness is not available to the Accused and that the question of substantial impairment is tied up closely with the Accused's long-standing use of "Ice".
6. With respect to the defence argument that there are horrifying features of the case, the Crown submitted that there is nothing particularly horrifying in the facts of the case and that the jury would be directed in a manner commonly utilised in murder trials.
7. The Crown submitted that it is not uncommon that the tribunal of fact constituted by a jury will hear evidence of uncharged criminal conduct in the course of a trial and that directions will be given to the jury in that regard.
8. The Crown submitted that the defence argument based upon the possible disruption or reluctance of witnesses was speculative and that there was no evidence to point to such difficulties at this point. If such arose during the trial, the trial Judge would give appropriate directions in that regard.
9. With respect to the Accused's prior incarceration and mental health issues, the Crown submitted that the use of evidence of this type will be subject to direction from the trial Judge and there may be scope to present the Accused's past mental health issues without introducing the fact that he was in custody for criminal matters.
10. With respect to arguments relating to the length of the trial, the Crown submitted that the narrowing of the issues in the trial would mean that it will be significantly shortened whichever form of trial proceeds.
11. Whilst acknowledging that a number of expert psychiatric witnesses will be called to give evidence at the trial, the Crown noted that matters bearing upon issues of mental illness and substantial impairment are regularly considered by juries in criminal trials. In circumstances where the Crown case is that the Accused is embellishing his claims of psychotic thoughts and perceptions and has contrived the defence of mental illness, it was submitted that an assessment as to the credibility and reliability of the medical history and accounts given by the Accused will be required. It was submitted that this task may be undertaken appropriately by a jury at the trial of the Accused.

Decision

1. It is clear that, whichever form of trial is to occur, the issues in the trial of the Accused will be narrowed very significantly. The witness list will be substantially shortened with a limited number of civilian witnesses to be required. The focus for determination at the trial will be whether the defence of mental illness is established and, if it is not, whether the Accused establishes the partial defence of substantial impairment on the balance of probabilities.
2. The areas of suggested prejudice which may arise in the trial can be managed effectively by the narrowing of evidence to be called by the parties accompanied by appropriate judicial directions. I do not consider that any part of the suggested areas of prejudice cannot be managed appropriately in these ways.
3. It is the case that the Accused has some history of mental illness. He has a significant history of drug usage in particular with respect to the drug "Ice". The relevance of his use of that drug will arise for consideration at the trial. Questions may arise concerning the relevance of intoxication, and the effects of consumption of "Ice", in considering the availability of the defence of mental illness or the partial defence of substantial impairment: R v Fang (No. 3) [2017] NSWSC 28.
4. The detailed report of Professor Greenberg outlines why it is that he considers the Accused to be an unreliable historian who has given inconsistent and contradictory accounts involving embellishment of his claims of mental illness. It is not appropriate in this judgment to set out in any detail the areas where Professor Greenberg has drawn such a conclusion. However, Professor Greenberg's analysis of the contents of intercepted telephone calls involving the Accused in custody illustrate this feature, with an available construction being that the Accused has set out to manufacture a foundation for such a defence or partial defence with the view to shortening substantially any period which he may spend in custody arising from these events.
5. Issues of credibility concerning the account of the Accused raise an issue which a jury is well equipped to determine as the tribunal of fact in a criminal trial. This is not to say that a Judge cannot carry out the same task. However, 12 citizens drawn at random from the community are well suited to undertake this task in this particular trial.
6. The assessment of the psychiatric opinion or opinions to be accepted will itself depend upon the foundational facts which the tribunal of fact find at the trial. The task of assessing relevant expert opinions will be undertaken after relevant facts have been found. The tribunal of fact will consider the expert opinion evidence in light of the findings made concerning the credibility of the Accused's account.
7. The fact that the second leg of the partial defence of substantial impairment is quintessentially a jury issue operates strongly in favour of trial by jury in this case.
8. Having considered all matters relevant to the determination of the application, I do not consider that it is in the interests of justice to order that the Accused should be tried by Judge alone.
9. The Notice of Motion filed for the Accused on 27 October 2017 is dismissed.

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: 05 November 2018