R v Warren Scott

The Crown Case Statement

1. I have taken the following facts from the Crown Case Statement.
2. As at 4 April 2019, the deceased, who was related to the accused, had been residing with the accused's mother, Ms Jessie Scott, for the past three months. On that day the accused was present at his mother's home. The accused brought some alcohol to his mother's house and consumed it during the morning.
3. The accused left at about 1pm to purchase more alcohol and returned at about 2pm. The accused, the deceased, and Ms Scott were drinking and listening to music in the lounge room as the day wore on. At one point in the afternoon the accused "jumped" off the lounge and went to the kitchen where he picked up a 30cm kitchen knife and returned to the lounge room. He started verbally abusing his mother and saying, "I'm going to kill you". Ms Scott managed to calm him down and returned the knife to the kitchen. The accused went into his room for about 20 minutes and then returned to the lounge room.
4. Shortly after the accused returned to the lounge room, Ms Scott noticed that he was holding a knife described as a "steak knife" with a "wooden handle and a silver blade". He again started abusing Ms Scott and threatening her with the knife. He placed the knife to her throat, and she screamed out to the deceased. The deceased tried to calm the accused. As he was doing this, Ms Scott ran out of the room and into a neighbour's house where she called the police. As she left, she heard the accused and the deceased arguing and recalled that the accused was abusing the deceased.
5. After calling the police Ms Scott returned to her house and looked through the front window. She saw the accused holding the knife to the throat of the deceased. The accused was verbally abusing the deceased as he did so. Ms Scott ran back to the neighbour's house and pleaded with them to contact the police.
6. The police arrived shortly after and Ms Scott led the police officers to the front door of the house. They did not enter the house as they did not want to escalate the situation. Police heard "faint thumping and banging" as though two people were wrestling. One of the officers said, "I think I can hear gargling". The accused came to the front window of the house, where the police officers could see him, then moved away. A police officer asked what was going on and the accused said, "He is drowning in [his] own blood". The officers could still hear the gargling sound and could see that the accused was "calm". They decided to enter the house.
7. The accused briefly prevented access to the house by leaning against the door. He eventually opened the door and was handcuffed by police. Upon entry into the house, police observed the deceased seated on a lounge. He was bleeding from his mouth and nose and gurgling. Police could not locate a pulse. A steak knife was observed on the coffee table in the lounge room. A police officer asked, "Where did you stab him" and the accused said, "Give me a smoke and I'll tell ya." The accused was asked again and he stated, "I stabbed him in the leg". The accused was eventually removed from the premises and placed into a police vehicle.
8. There are visual and audio recordings from body worn cameras activated shortly after police entered the premises. The accused declined to participate in an ERISP.
9. An autopsy was conducted on 9 April 2019. The deceased died as a result of stab wounds to the leg and chest. A total of 31 stab wounds were identified by the forensic pathologist.
10. The accused has been in custody bail refused since his arrest on 4 April 2019.

The defence case

1. It is not in dispute that the accused killed the deceased by stabbing him with the steak knife. The accused relies on the partial defence of substantial impairment: s 23A of the Crimes Act 1900 (NSW). He alternatively relies on intoxication and contends that he did not have the requisite intention to kill or cause grievous bodily harm to the deceased: ss 428C(1), 428E(1)(a) of the Crimes Act. It is anticipated that the accused will give evidence at his trial.
2. It is common ground that the accused has an extensive medical and psychiatric history including, inter alia, low intellectual functioning, long-term alcohol abuse, type 2 diabetes and schizophrenia. It is anticipated that much of his medical history will be tendered in the form of agreed facts. The primary factual dispute concerns whether the accused's actions on 4 April 2019 are attributable to a substantial abnormality of mind or to his state of intoxication.
3. Two expert witnesses will be called in the defence case: Dr Susan Pulman, who has provided an expert report dated 20 September 2020, and Dr Olav Nielssen, who has provided an expert report dated 13 February 2021.
4. Dr Pulman's report indicated that the accused has an overall full-scale IQ within the extremely low range and at the first percentile consistent with a mild intellectual disability. His performance on executive functioning tasks was poor.
5. Dr Nielssen opined that the accused suffers from a chronic psychotic disorder (either schizophrenia or a chronic illness secondary to alcohol related brain damage), alcohol use disorder and probable alcohol related brain injury. He stated that in his opinion these conditions were underlying conditions within the meaning of s 23A of the Crimes Act. Dr Nielssen noted contemporaneous documentation which indicated that the accused had stopped taking his anti-psychotic medication in the period before the offence and that this was likely to have exacerbated his underlying mental illness. He opined that this was likely to have caused "more prominent hallucinations and the emergence of persecutory beliefs". He further stated that the exacerbation of the accused's mental illness was likely to have resulted in significant impairment in his ability to judge right from wrong and his ability to control his actions.
6. The Crown will rely on the expert evidence of Dr Kerri Eagle, who has provided reports dated 27 January 2021 and 21 May 2021. Dr Eagle opined that the accused's presentation was consistent with diagnoses of schizophrenia, mild intellectual disability and severe alcohol use disorder, in remission in a controlled environment. She noted that schizophrenia was an underlying condition and that the accused was likely experiencing a deterioration in his mental state at the time of the offence due to non-compliance with his medication and excessive alcohol consumption. Dr Eagle observed that his behaviour at the time of the offence appeared to have been "significantly, if not predominantly, [affected] by alcohol intoxication at the material time." Dr Eagle's opinion was that in the absence of "specific signs of psychosis operating on Mr Scott's motivation or behaviour at the time of [the offence], if it were not for [his] level of alcohol intoxication… it would seem unlikely that he would have engaged in the assault on the deceased."
7. In response to Dr Nielssen's opinion, Dr Eagle noted that the accused had consistently provided a rational explanation for the assault and that alcohol intoxication would result in disinhibition, increased emotional lability, reduced self-control and impaired judgment. She remained of the opinion that his behaviour at the time of the offence appeared to have been significantly affected by his apparent level of intoxication. Dr Eagle was unable to conclude that his capacity to understand events, judge right from wrong or control himself was significantly impaired by his mental illness, disregarding the effects of alcohol intoxication.

Relevant law

1. The main issue at trial will be whether the defence of substantial impairment is established. That defence is set out in s 23A of the Crimes Act as follows: 23A Substantial impairment because of mental health impairment or cognitive impairment (1) A person who would otherwise be guilty of murder is not to be convicted of murder if - (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. … (emphasis added)
2. The accused will have to establish that at the time of the offence his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired by his mental health condition(s), disregarding his intoxication at the time of the offence ("the first limb"). He will further have to establish that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter ("the second limb").
3. The onus of proof is upon the accused to establish the partial defence.

Defence submissions

1. Senior counsel for the accused outlined the anticipated course of the trial. It was submitted that there would be three groups of witnesses: first, the lay witnesses including Ms Scott, several neighbours and police officers who would give evidence about the events of 4 April 2019 and the accused's presentation in the lead-up to that day; secondly the crime scene officer, forensic pathologist and officer-in-charge; and thirdly the experts, Drs Pulman, Nielssen and Eagle.
2. In relation to the first category of witnesses it was not anticipated that the credibility of any of the witnesses would be in issue, although their recollections could be unreliable at times.
3. As to the second category, Ms Avenell SC indicated that she did not intend to cross-examine these witnesses. As to the third category, only Dr Eagle was required for cross-examination (the other two experts are to be called by the defence). The defence also anticipated that the accused would give evidence about his interactions with the deceased and the events of the day in question. It was submitted that it would be necessary to compare the evidence of the accused with that of the other witnesses.
4. In relation to practical considerations in light of the current restrictions, senior counsel for the accused noted that all the witnesses could give evidence via AVL, that Mr Scott was willing to appear via AVL and that defence counsel was willing to appear via AVL if necessary.
5. It was submitted that the factual issues as to the events of 4 April 2019 and the accused's behaviour in the preceding hours and days were not questions inherently suited to resolution by judge or jury; the test under the first limb was a question of fact to be resolved with the assistance of the expert evidence.
6. In relation to the test under the second limb, the defence referred to the observations of R A Hulme J in R v Kerollos [2020] NSWSC 1758 at [51]-[54] (extracted below at [54]) and submitted that the interests of justice in this case required trial by judge alone despite the desirability of trial by jury in cases involving the partial defence of substantial impairment. It was further noted that the delay in Kerollos was the potential delay arising from, inter alia, the potential that jurors would need to self-isolate or be tested during the proceedings.
7. In this case, a trial by jury would not be able to proceed at all until, at the earliest, the first half of 2022. It was submitted that the accused would have spent around 3 years on remand by that time and that was a significant amount of time, especially taking into account the accused's medical conditions. As noted above, the accused suffers from schizophrenia, low intellectual functioning and type 2 diabetes.
8. It was also submitted that further delay was undesirable for witnesses whose recollections may be challenged and for the family of the deceased awaiting the resolution of criminal proceedings. It was noted that delay in this trial would add to the backlog arising from the current restrictions. Although there had been some delay between arraignment and the allocation of a trial date, this occurred through no fault of the accused and was largely attributable to the need to obtain expert medical evidence.

Crown submissions

1. The Crown agreed with the outline of the trial provided by the defence and noted that it was likely that the trial would proceed expeditiously whether by jury or judge alone. The Crown also agreed that there would be no issue at trial as to whether the accused was suffering an abnormality of mind at the time of the offence; rather, the tribunal of fact would have to assess the precise circumstances of the stabbing and the presentation of the accused in the days preceding the alleged offence.
2. The Crown submitted that the following issues were likely to arise in the trial: 1. The extent to which the accused's abnormality of mind influenced his capacity to understand events, to judge right from wrong or to control himself; 2. The degree to which the accused was affected by alcohol at the time of the offence; 3. Whether the accused's abnormality of mind would warrant a reduction in criminal culpability from murder to manslaughter; and 4. In the alternative, whether the accused was capable of forming the requisite intention for murder due to his intoxication.
3. In relation to the second limb of the substantial impairment test, the Crown submitted that this test clearly required an application of community standards. The decisions in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 at [100] and R v Flame [2020] NSWSC 1013 at [71]-[72] were relied upon in support of this submission. The Crown also referred to R v Kerollos at [46] and [50] and contended that the primary issue in that case was whether the accused had given an accurate history to the expert psychological witnesses. These decisions are considered further below.
4. The Crown acknowledged that delay was a significant factor given that more than two years have now elapsed since the death. It was accepted that the delay would be significant both for the accused on remand and the family of the deceased. Despite this, it was submitted that the recollection of witnesses would not be a determinative factor as several key witnesses participated in "walk-through" videos shortly after the relevant events and those recordings would be tendered by the Crown. The Crown also noted that although the period of delay in re-listing a jury trial was unknown, the relatively short length of the trial could assist in the matter being listed earlier.

Consideration

1. Dealing first with the procedural requirements under the Act, I am satisfied that Mr Scott signed his election dated 23 July 2021 confirming that he has sought and received legal advice in relation to his application for trial by judge alone. As for s 132A(1), which provides that an application made within 28 days of the date fixed for the trial requires the leave of the Court, the present application was made on 28 July 2021, 26 days before the date fixed for the commencement of the trial. The Crown was notified on 23 July 2021 and took no issue with the application being filed out of time in the circumstances. To the extent that leave is required I grant it.
2. The determination of this application turns on the exercise of the discretion conferred by s 132(4) of the Act: the Court may make a trial by judge order if it considers it is in "the interests of justice" to do so.
3. The benefits of a trial by jury are well accepted. In R v Belghar McClellan CJ at CL at [35] adopted the observations of Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7], and stated the following at [97]: "In Swain, as I have previously identified, 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. Subsection (5) 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)."
4. Similarly, in R v Hadler [2018] NSWSC 1151 Wilson J noted the advantages and disadvantages of a jury trial in these terms at [37]-[39]: "A trial by jury has historically been held to be one with significant advantages to an accused person. Those advantages were considered in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, a decision which drew upon the observations of Lord Devlin in Trial by Jury (1966, revised edition). Although some might regard the phrase as hyperbolic, Lord Devlin had there described jury trials as the 'lamp that shows that freedom lives' (at 164). The advantages included the supposed superiority of a jury in assessing defence points, including those which might be unreasonable or muddleheaded; a jury's asserted superiority in assessing issues of credibility; its capacity to 'stretch' the law, something not open to judges; and its capacity to bring in a perverse verdict, also being a course not open to a judge. Conversely, it has been observed that many jurors may be unused to tasks requiring intellectual rigour, and be unable to follow and recall evidence given over an extended period, and apply complex directions of law to that evidence. Further, unlike a judge, who must give comprehensive reasons for his or her decisions, thus facilitating appellate review, the verdict of a jury is entirely inscrutable."
5. Although most trials in the Supreme and District Courts are heard with a jury, it is pertinent to note that there is nothing in the statutory language of s 131 of the Act (which provides that criminal trials in the District and Supreme Courts are to be tried by a jury, except as otherwise provided) or ss 132 or 132A that creates a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone can be made: R v Stanley [2013] NSWCCA 124 at [42] per Barr AJ, Macfarlan JA and Campbell J agreeing.
6. A relevant consideration in the present application is the weight to be given to the fact that the trial will involve the application of objective community standards: s 132(5). As McClellan CJ at CL observed in R v Belghar at [100]: "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 should be trial by jury."
7. As for what is meant by the words "in the interests of justice" in this statutory context, Wilson J observed the following in R v Hadler at [62]: "The phrase 'in the interests of justice' is one which imports a wide and likely open-ended sweep of issues. The phrase is commonly used, and may comprehend many factors: State of Western Australia v Rayney [2011] WASC 326. It has been regarded as undesirable to attempt to define it: O'Hare v DPP [2000] NSWSC 430. In the present context, the interests of justice must comprehend the interests of the accused, the Crown, and the community, as well as other wider considerations of justice. What may be in the interests of justice in a particular case will depend on all of the facts and circumstances pertaining to that matter."
8. It is to be accepted that the second limb of the partial defence of substantial impairment involves an application of community standards in determining whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: R v Gokhan Eyuboglu [2019] NSWSC 181 at [13] per Button J. Although that question is ordinarily one that is best suited to determination by a jury, that does not preclude the making of an order for a judge alone trial in cases involving substantial impairment. As Button J observed in Gokhan Eyuboglu at [26], the rule is not absolute and such issues are determined by judges and magistrates on a daily basis. Trials involving the partial defence of substantial impairment have been conducted by judge alone, including before the emergence of the current pandemic: see for example, R v Quinn (No 2) [2016] NSWSC 1244.
9. The Crown relied upon the observations of Button J in R v Flame in its opposition to the application. In that matter his Honour declined to make an order for a judge alone trial in a case in which the partial defence of substantial impairment was to be raised. In that context, his Honour observed the following at [71]-[72]: "As for that component [the second limb test], I believe that it is quintessentially a matter for the reflection and discussion of twelve members of the community. In my respectful opinion, it is a question that is only answered with great difficulty -and perhaps not entirely satisfactorily - by a single person, who inevitably brings his or her individual if not idiosyncratic thoughts and feelings about the world and the human beings who inhabit it to the question. Other judges have spoken about the difficulty of grappling with the normative question: see, for example, the judgment of Hamill J in R v Hutchison & Wilkinson [2018] NSWSC 1759; as have I: see R v Eyuboglu [2019] NSWSC 181. And yet in my experience, juries have no difficulty in coming to a verdict that reflects their answer to the normative question: see as an example only R v Cadman [2019] NSWSC 634. That is understandable, because they engage in an intense process of discussion and reflection between a large number of persons in which their thoughts and feelings about the two different forms of homicide are able to be fully developed."
10. There was no issue in R v Flame of the trial being vacated due to the unavailability of jury trials; rather, the defence relied upon the complexity of the legal directions required and unfair prejudice due to both pre-trial publicity and the violence involved in the offence. His Honour was satisfied that the trial could proceed later in the year with a jury. That is to be distinguished from the present application where if the trial does not proceed by judge alone the accused runs a real risk of spending up to three years on remand awaiting a jury trial. The interests of justice stand to be assessed taking into account all of the relevant considerations.
11. As against the fact that this trial will raise the issue of community standards, there are two other relevant factors militating in favour of an order for a judge alone trial being made. The first is that there are only limited matters in dispute. In R v Hadler the only issue was whether the accused was mentally ill at the time of the act that caused the death. In that context Wilson J observed at [41]-[42]: "In circumstances where there is a single issue in dispute, as here, many of what might be regarded as the usual advantages and disadvantages of a trial by jury as opposed to a judge alone trial take on lesser significance. Here, the accused does not dispute having committed the physical acts which led to the tragic death of Mr Hamilton, and will take no issue with evidence going to that aspect of the matter; the only issues for the tribunal of fact will be those associated with the accused's mental state, and its relevance to his conduct."
12. The second significant matter is the suspension of jury trials caused by the current pandemic and the inevitable backlog that will result. The Supreme Court previously suspended jury trials in 2020. When they re-commenced, they did so in a modified way in order to comply with relevant NSW Public Health Orders, including the need for jurors to be a certain distance from each other. When trials re-commenced under these modified conditions, they did so with the associated delay caused by the need for any juror with the mildest of symptoms to take a COVID-19 test and isolate until a result was received. A trial could not resume until that (negative) result was received.
13. In order to deal with these and associated issues, the Criminal Procedure Act was amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) ("Emergency Measures Act") which commenced on 25 March 2020 and introduced Part 5 of the Act, entitled "Response to COVID-19 pandemic". Section 365 in that Part is headed, "Judge alone trials" and is in these terms: (1) A court may, on its own motion, order that an accused person be tried by a Judge alone. (2) A court may make an order under subsection (1) only if - (a) the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and (b) if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and (c) the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone. (3) This section applies despite any other provision of this Act, including sections 132 and 132A.
14. The effect of s 365 (in relation to an application under s 132) was considered during the previous lockdown in 2020 by Davies J in R v Jaghbir (No 2) [2020] NSWSC 955. At [23] his Honour extracted a portion of the Second Reading Speech to the Emergency Measures Act, in which the Attorney General stated the following: "The Bill amends the Criminal Procedure Act 1986 to enable a judge to order that a relevant witness can give evidence by having their evidence recorded in advance of the trial, to enable a record of evidence given in the trial proceedings to be admissible in a subsequent trial, to facilitate more judge only trials, and to introduce a general regulation-making power for exceptional circumstances." (emphasis added)
15. Justice Davies considered that the clear intention of Parliament was to facilitate more judge alone trials during the period in which the Emergency Measures were in force (at [24]). His Honour went on to note that any adjournment would have caused a delay of around one year which was considered an unacceptable delay, even taking into account that the accused in that case was on bail in the community (at [28]). Ultimately, his Honour was of the view that, but for the effects of the COVID-19 pandemic, he would have refused the application (at [15]). His Honour concluded at [31]-[32] that: "Having regard particularly [to] what was said by the Attorney-General in the second reading speech to the emergency legislation, it seems to me that it is in the interests of justice that criminal trials should proceed with the least chance of interruption and delay during the current crisis. That means, perhaps, in more cases than would otherwise have warranted it, judge-alone trials. In my opinion, in the present pandemic, with the risks of a jury trial being aborted, the interests of justice in the present case require a judge-alone trial."
16. Section 365 of the Act was again considered by R A Hulme J in R v Kerollos. In that matter an issue arose as to the extent to which the accused's mental condition was influenced by schizophrenia rather than intoxication. The experts agreed on the availability of the defence (at [37]), as they do in the present case. The defence was one of mental illness with substantial impairment to be run in the alternative. In that context R A Hulme J observed the following at [51]-[54]: "Ordinarily, the potential availability of a defence of substantial impairment might be persuasive in determining a contested application for a judge-alone trial. However, the coronavirus pandemic continues to disrupt and delay criminal jury trials by the need to wait for test results and by the reduced availability of suitable courts. The [COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)] inserted s 365 into the Criminal Procedure Act, empowering the court to order judge alone trials on its own motion. It is notable that s 365 does not include any explicit reference to objective community standards as appears in s 132(5). Clearly, this was to enable more judge-alone trials to proceed until the pandemic is resolved. The present application, however, is for determination under s 132. Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 at [30]-[31] aligned himself with a prior judicial pronouncement that 'the interests of justice also extend to the public interest in the due administration of justice'. He considered in the context of the case before him that the interests of justice include that 'criminal trials should proceed with the least chance of interruption and delay during the current crisis'. Regrettably, restrictions imposed because of the COVID-19 pandemic continue to apply. Notwithstanding some recent relaxations to various aspects of social interaction, this Court continues to have a substantially decreased capacity to list criminal trials and will continue to do so for the foreseeable future. It is not only the potentially available trial dates for the present matter that are affected by the decision as to whether it proceeds with a jury or by judge-alone. Every trial in this Court that proceeds with a jury has an impact upon the available time for future trials to be listed. The Court presently has pending trials with accused persons who have been in custody for four years or more. I am satisfied that the interests of justice in the present case extend also to the interests of everyone involved in seeing it proceed as soon as possible. In this regard, I have in mind those who grieve the loss of Ms Kerollos, witnesses who will be pressed for their best memory of events that occurred more than 18 months ago, and the accused himself. As Wilson J found in R v Hadler at [74], 'a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome'."
17. It is to be accepted that the extent to which community standards fell for consideration in that matter was less significant than in the present matter. His Honour observed at [46] that the defence of mental illness in that trial would "rise or fall" on the question of whether the histories provided by the accused were credible and thus "[n]o issue of community standards [arose]" in relation to that defence. His Honour went on to observe at [50] that if the Crown case on credibility were accepted then the defence of substantial impairment was unlikely to arise. Bu that case concerned the allocation of a future trial date and the spectre of significant delay was not the pressing issue it is in the present trial.
18. Having regard to the limited scope of the issues in the trial, the fact that the trial could be conducted by way of AVL as a matter of practical reality, the fact that s 365 of the Act would allow the Court to grant a judge alone trial on its own motion in any event without the need to consider s 132(5) as well as the inevitable delay if this trial proceeded before a jury, I am satisfied that it is in the interests of justice that this trial be heard by a judge alone. To the extent that it is relevant, I would not have arrived at this conclusion but for the current suspension of jury trials and the enactment of s 365 of the Act.

ORDERS

1. Accordingly, I make the following orders: 1. Leave is granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW). 2. Pursuant to s 132(4) of the Criminal Procedure Act 1986 (NSW) order that the trial of Warren Anthony Scott for the murder of Edward Carter on 4 April 2019 at Eden in the State of New South Wales, be heard by judge alone.

Amendments 22 September 2021 - Publication restriction removed. 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: 22 September 2021