HIS HONOUR: This is an application for leave pursuant to s 132A(1) of the Criminal Procedure Act 1986. The accused makes an application out of time for trial by Judge alone. Such an application must be made 28 days before the day fixed for the trial in this Court unless the Court otherwise grants leave. If that application be successful, there will follow an application under s 132(4) of the same Act for leave to have the matter tried by a Judge alone as the prosecutor does not consent to the making of an order for trial by Judge alone. It is convenient to deal with both applications at the one time.
On 23 September 2014, the accused was committed for trial by the Downing Centre Local Court on a number of charges. Six of those charges arose out of events which occurred on 23 September 2013. The current matter arose out of an event which occurred on 31 December 2013. I shall refer to the current matter as the second trial. The first trial is clearly a reference to the matters alleged against the accused as occurring on 23 September 2013. As far as the first trial is concerned the accused was to be tried with a co-offender, Amanda Faith Ridden.
The accused was arraigned in respect of the first trial and in respect of the second trial on 24 October 2014. Two indictments were presented, one applicable to the first trial and one applicable to the second trial. The indictment concerning the first trial contained one count against Amanda Faith Ridden, and it contained six counts against both Ridden and the current accused. The first count was that on 23 September 2013 at Lane Cove the accused whilst in company took for the purposes of driving a motor vehicle, a Nissan Pulsar motor vehicle registered number YTG582, without consent of the owner, Phillip Brighton, whilst Phillip Brighton was in the vehicle. The second count was a count in the alternative to that count. The third and fourth counts allege armed robberies at the Roseville Cinema. The sixth count was of armed robbery at the Revesby Pacific Hotel on 23 September 2013. The final count was a count that whilst in company the accused did intentionally destroy the Nissan Pulsar motor vehicle registered number YTG582, the property of Phillip Brighton.
After the arraignment the list judge, Acting Judge Delaney, fixed a six week trial commencing on 15 June 2015. There was a direction that the trial on the current charge, that is the second trial, follow immediately after the conclusion of the first trial. The matter came before the Chief Judge, Price J, on 16 June 2015. I am told and have been told earlier that on that day Ridden pleaded guilty to a number of charges after plea bargaining. The Chief Judge stood the current accused's trial over to 17 June and on 17 June the matter was stood over for trial on 18 June. The matter was supposed to come before me on that day but I was engaged in a civil hearing until 6pm that day. The matter was due to be before me on Friday 19 June but it was convenient for all concerned that the matter commence on Monday 22 June. On that day, the accused was arraigned on a fresh indictment containing six counts against the accused alone, in respect of the events of 23 September 2013. That day was spent on the hearing of an application for the adducing of coincidence evidence. I ruled that the coincidence evidence be admitted. The matter was then adjourned until 23 June 2015 when I was asked to grant the parties time. Eventually, at 2pm a fresh indictment was presented and the accused was arraigned on four counts and pleaded guilty to each of those four counts. There was one count of taking Mr Brighton's motor vehicle without his consent, he being in the car and three counts of armed robbery. I was asked to stand the back-up trial, namely, this second trial, until Wednesday 24 June at 10am. At the request of the parties I directed that the accused might be excused on Wednesday 24 June 2015. Mr Schaudin, who appears for the accused, told me that he wished to attend upon the accused at Long Bay Gaol to obtain certain instructions from him. Unfortunately, he could not do so because the accused was brought to court when it was unnecessary that that be done.
On 24 June, I was told by the Crown that the present trial could not start until today and that it was then that I was told that Mr Schaudin was attending upon the accused at Long Bay Gaol to obtain instructions. I then stood the matter over for mention today. Mr Schaudin was able to obtain the instructions which he sought from the accused yesterday, Thursday 25 June, and hence the applications made to me today.
The present indictment contains one count. That count is this:
"On 31 December 2013 at Pennant Hills...while armed with an offensive weapon, namely, a knife did assault Sathaporn Wongsamak with intent to rob him and at the time of the assault he, the said Blake Weismantel, did inflict grievous bodily harm upon him."
The facts relied upon by the Crown are these, gleaned from exhibit T5. There is situated at 1A Hillcrest Road, Pennant Hills a Thai restaurant. That restaurant is owned by Sathaporn Wongsamak, who is also the chef. There are nine employees including Mr Wongsamak's wife, Laynookar Wongsamak, to whom I shall refer merely as Mrs Wongsamak. All nine members of the kitchen staff as well as Mr and Mrs Wongsamak were working on New Year's Eve 2013. At around 10.30 pm, Mr Wongsamak was working in the kitchen and Mrs Wongsamak was working at the counter which is located to the right of the front entrance of the restaurant. Four customers were standing on the footpath outside the restaurant waiting for one of their friends who was still inside the restaurant using the bathroom. The four customers on the footpath had finished their meal and were waiting to be joined by their female friend. At about the same time, Mrs Wongsamak and her sister were sitting behind the front counter where the cash register was located.
The accused walked in through the front door of the restaurant and approached the counter. He was holding a knife, 28 centimetres long, in his right hand. He was wearing a black coloured long sleeve woollen jacket with the hood covering his face. He was holding the hood down with his left hand. He was also wearing red, white and blue striped shorts. The accused reached over the counter and pointed the knife towards Mrs Wongsamak waving it around. The blade came very close to Mrs Wongsamak, almost touching her chest and abdomen. At that time the accused said nothing. He walked around the counter near to Mrs Wongsamak and her sister and started hitting the cash register with the knife yelling out, "Empty, empty!" As the accused was yelling he was looking at Mrs Wongsamak. She was shocked, scared and shaking. Mrs Wongsamak called out to her husband for aid. Mr Wongsamak and one of their daughters, and their nephew, and two staff members, ran from the kitchen of the restaurant.
Mr Wongsamak yelled out at the accused. He grabbed a wooden chair and held it towards the accused shouting, "Get out". The accused turned around and walked towards Mr Wongsamak. He pointed the knife towards Mr Wongsamak again making stabbing motions. Mr Wongsamak used the chair to block the accused's knife. The accused let go of his hood and grabbed another chair, pushing the chair and Mr Wongsamak back about a metre and a half, causing Mr Wongsamak to trip over and fall. He fell onto his left hand side, but in so doing twisted his right leg. Another staff member, Mr Borom, came out of the kitchen, picked up another chair and threw it at the accused. He then picked up a further chair and threw that at the accused. The accused then walked out of the restaurant, turning left, crossed the road, and started walking up Hillcrest Road towards Yarrara Road. A witness used his mobile telephone to take a photograph of the accused as he left. The accused's red, white and blue striped board shorts can be seen in the photograph.
Meanwhile Mr Wongsamak tried to stand up but could not do so because of pain in his right ankle. He remained laying on the floor. One of the customers who was outside the restaurant witnessed the event and called the emergency number. Police and ambulance officers arrived a short time later. A description of the accused was then broadcast. Unsuccessful attempts were made by a police dog to follow the accused. At approximately 10.35pm the accused was seen walking in a southerly direction along Pennant Hills Road, approximately 600 metres from the restaurant. The accused was asked to sit down, which he did. He was searched and police located a mobile phone, a black handled kitchen knife which was removed from the rear waistband of his shorts. The accused was trying to swing his arms around, and was behaving in what is alleged to have been an aggressive manner. At one point he became unconscious. The police called an ambulance. Whilst waiting for the ambulance to arrive the accused regained consciousness and over the next 40 minutes made rude comments to several police officers. On several occasions he moved around and two officers were required to restrain him.
According to the police facts the accused remained moderately aggressive and was threatening, and did not respond to attempts to calm him down. At times he was incoherent. While Constable Brylynsky tried to hold the accused, the accused attempted to grab his hands on several occasions. The accused was alleged to yell words to the effect of, "Fuck you, you fucking dog, you like it when I grab you." The accused was then placed under arrest. He was taken to Hornsby Hospital by ambulance under police escort. The accused also behaved aggressively to hospital staff. He was admitted to the Intensive Care Unit where he was intubated and sedated to manage his aggressive behaviour. On New Year's Day 2014 he was weaned from the sedation and he became more alert. He remained calm and was reviewed by the psychiatric team at the hospital, and he was re commenced on anti-psychotic medication. On 2 January 2014 he was medically stable, alert, oriented and calm. He was discharged by the hospital into police custody. He was taken to Hornsby police station and charged. He was offered an opportunity to participate in an electronically recorded interview but declined to do so.
Mr Wongsamak was conveyed to Hornsby Hospital by ambulance. He presented to the Emergency Department at 11.53pm. The history given by Mr Wongsamak to hospital staff was that whilst he was at work a man with a knife attempted to rob the business, and in the process of that occurring he twisted his ankle in the course of trying to evade the assault. On examination, the right ankle was swollen over the lateral malleolus and the patient was unable to the weight bear. X-rays demonstrated a spiral fracture of the fibula in the ankle. Mr Wongsamak was admitted to the hospital under the care of Dr Ben Gooden, an orthopaedic surgeon.
There is before me, as well as a report from the doctor in the Emergency Department, a report from Dr Ben Gooden. He points out that the X-ray not only showed an oblique fracture of the distal fibula, but that oblique fracture extended to the level of the syndesmosis. The X-ray was said to show widening of the ankle mortise in keeping with instability of the ankle joint. Dr Gooden's report continues thus:
"Mr Wongsamak was taken to theatre on 1 January 2014 and underwent an open reduction and internal fixation of the fibula [sic] fracture with a seven hole one third tubular plate and screws. The syndesmosis was found to be unstable on stressing and he therefore had two diastasis screws inserted through the plate. He was kept non-weight bearing for a period of eight weeks post-operatively, and was then mobilised, weight bearing, following this. On 7 March 2014 he returned to the operating theatre to have the diastasis screws removed. This is a standard part of treating this type of fracture.
With regard to the questions that were asked of me from Senior Constable Steven Ireland on 7 July, this particular fracture is a reasonably common one. It does require significant force to lead to fracture of the fibula in association with disruption to the syndesmosis. The metal plate and screws were required to reduce the fracture into an anatomical position and this is standard treatment for this kind of displaced fracture. The patient underwent two procedures, the first being on 1 January 2014 to have the plate and screws inserted, and the second being on 7 March 2014 to have the two diastasis screws removed. It is usual to leave the remaining fibula metalwork in place, this is not routinely removed unless there are overt problems with the metalwork.
The prognosis for this gentleman is good. Most people who suffer these fractures will return to full activities as tolerated over the ensuing three-six months post-operatively. There is an incidence of patients who suffer from ongoing pain and swelling in their ankle after this and there is an incidence of the development of post traumatic arthritis in the long term. Post-operatively, patients require three-six months of physiotherapy to help regain their range of motion and full function of their ankle."
A statement taken from Mr Wongsamak on 14 September 2015 tells me that he still experiences constant numbness on the lateral malleolus. Prior to the fracture of his right ankle Mr Wongsamak exercised "quite a bit", including walking on treadmills two or three times weekly. Since the fracture of his ankle Mr Wongsamak is unable to do that and develops pain and soreness in the ankle very quickly when he tries to walk for any long period of time. These ongoing symptoms have affected Mr Wongsamak's ability to work. He is required, as a chef, to stand and he develops soreness and pain when he stands for long periods of time, which he never experienced before he fractured his ankle. He also notices symptoms when at rest. His ankle might start to ache when he is sitting down, which had never happened before the fracture of his ankle.
That there might be post-traumatic arthritis indicates that there was damage to an intra-articular surface and as the ankle is a weight bearing joint it would appear that the onset of post-traumatic arthritis at some time in the future is inevitable. In any event, it appears that Mr Wongsamak has not made a complete recovery from this injury and it appears to me to be unlikely that he will do so, bearing in mind that symptoms have now persisted for some 17 months at least.
The accused, by his counsel, tells me that there is no issue as to the identification of the accused at the crime scene. No alibi is raised. No positive defence is raised. In essence, the accused is putting the Crown to proof. That is understandable since the offence alleged against the accused carries a maximum term of imprisonment of 25 years. The accused wants a trial by judge alone. Although the original proceedings were listed for trial for six weeks, the first trial shortened after a week and two days. The Crown was unable to immediately start the second trial which is due to start next Monday.
The personal circumstances of the accused must be carefully considered. There is before me a report of a psychiatrist, Dr Richard Furst, who examined the accused, in connection with other proceedings, on 1 December 2012. At that time the accused was 19 years old. He is now 24 years old. He is of Aboriginal descent who was exposed to domestic violence in his early childhood. His father was an alcoholic and his mother was addicted to heroin. His parents were separated when he was about eight years old. He remained in the care of his mother. He came to the attention of the Department of Community Services, as it was then called, about the age of seven. He was deemed to be at risk of physical harm, including sexual harm, because he was not adequately supervised by his parents. It was noted at that time that the accused was behaviourally disturbed. He commenced abusing alcohol at the age of 12 because he mixed with "the wrong crowd". He was diagnosed with Attention Deficit Hyperactivity Disorder in early childhood but was never treated with stimulant medication for that condition. In his childhood he suffered from mood swings and periods of anger. He also gave a history of depression and of psychotic symptoms that included hearing voices. When received into the Juvenile Justice System he was assessed as being psychotic. He was treated for both with antipsychotic medication and antidepressant medication. He was considered a risk to himself. He has been experiencing for some considerable time now hallucinations, auditory as well as visual. He also suffers from paranoia and as at 1 February 2012 had been having paranoid delusions for three years. He started abusing the sedative drug Valium at the age of 14 years and cannabis at the same time. He soonstarted using amphetamines and crystal methylamphetamine, or "ice". By the age of 15 or 16 he was injecting heroin once or twice every fortnight. He also used Ecstasy at times, LSD and "Magic Mushrooms".
He was diagnosed by Dr Furst as suffering from paranoid schizophrenia and substance abuse. Dr Furst also found evidence of personality dysfunction. Dr Furst said this about schizophrenia:
"Schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, nerve instability and bizarre behaviour as a consequence of the illness. There is often a prodromal period in which individuals with the illness feel lethargic, depressed and unable to cope, resulting in disruption to family relationships and poor social functioning. Frequent symptoms include paranoid beliefs, self-referential thinking, grandiose delusions and thought disorder.
Schizophrenia is thought to be biologically driven because of abnormalities in dopamine transmission, differences seen in brain volume and genetic transmission. It usually runs a chronic course requiring hospitalisation during acute episodes and the need for longer-term treatment with antipsychotic medications (tablets or injections), as have been required for Mr Weismantel in the past."
As to the prognosis Dr Furst expressed the view that the accused was likely to continue to display psychotic symptoms of a residual type which was typical of the type of the illness from which he was suffering.
An ambulance officer requested an assessment of the accused at the time that the accused was with the police immediately after his arrest on Pennant Hills Road. The ambulance officer who was authorised to exercise functions under the Mental Health Act 2007 informed an authorised medical officer of the Hornsby Hospital that the accused was mentally ill or mentally disturbed. He provided these details:
"Patient demonstrating psychotic behaviour. Patient unclear of situation. Patient making sexual advances to officers in response to assessment. Patient threatening violence towards officers and officers' families. Patient agitated and fighting restraint. Patient not responding to questions or communicating appropriately."
Hence the accused was conveyed to the Hornsby Hospital and admitted under the provisions of the Mental Health Act 2007 prior to his being discharged from that institution and taken into police custody. It is clear that immediately after the offence now alleged the accused was suffering from psychotic symptoms. I have been told from the Bar table, without objection, that the accused remains on antipsychotic medication to the current time.
If the matter be tried with a jury I am told that the Crown will need to call between 10 and 15 witnesses to give oral evidence, as well, no doubt, as Dr Gooden to give evidence to the jury about the extent of the injury sustained by Mr Wongsamak. I am told by Mr Schaudin from the Bar table, again without objection, that should the matter be tried by judge alone the trial can be conducted with most of the statements of witnesses, with suitable redaction, being tendered into evidence without any of those witnesses having to give sworn evidence from the witness box. In other words, there does not appear to be any issue of credit which might best be left to a jury. There is no factual issue that requires the application of objective community standards including any issue of reasonableness, any issue of negligence or any issue, for example, of indecency, obscenity or dangerousness. There is not, as here, any issue relating to intention that might best be determined by a jury as arose in R v King [2013] NSWSC 448 or any issue that raises any substantive issue of the credibility or reliability of any witness as arose in R v Dean [2013] NSWSC 661.
However, there is the issue of the accused's mental state and his ability to give attention to a lengthy trial. I sought some assurances from learned counsel for the accused and was given them. When I asked the learned Crown Prosecutor whether it was necessary for Mr Schaudin to call his solicitor to give oral evidence about those matters from the witness box, I was told that was not necessary.
The early part of the first trial was taken up, as far as the accused was concerned, with concentrating on the issues raised in the first trial and giving attention to the six counts which he then faced. In essence, a count in the alternative was dropped by the Crown and the Crown did not proceed with the final count, the count of intentionally destroying Mr Brighton's Nissan Pulsar motor car by means of a fire. The accused was prepared to plead guilty to charges carrying 25 years' imprisonment, but was not prepared to plead guilty to a charge which carried a maximum term of 11 years' imprisonment. Mr Schaudin assures me that because of the accused's mental condition, he concentrated only on the issues relating to the first trial and did not raise with the accused any issues relating to the second trial until, in essence, the first trial was disposed of. It was then that the accused gave his counsel instructions to apply for trial by Judge alone.
I have now seen Mr Weismantel in the dock for the whole of Monday, 22 June, and the afternoon of 23 June. I have seen him again in the dock this morning. At about 11.30 he asked to be excused from being in the dock, he preferred to be downstairs in a cell. He could not be taken from the Courthouse prior to the usual closing hour of 4pm in any event. Today he appears not attired for a trial, but in prison greens and he looked somewhat dishevelled, although he had not looked dishevelled last Monday. From what I was told from the Bar table, he appeared to be somewhat fatalistic about what might happen to him and oblivious to how he ought to be dressed when appearing before the Court. I am confident that a lengthy trial involving the calling of 10 to 15 witnesses would be very taxing on Mr Weismantel's ability to concentrate, and I am concerned that he might not present towards a jury favourably after a number of days of hearing.
One can understand the accused putting the Crown to proof of the matters contained in the second indictment because one might readily accept that, bearing in mind what was observed by police and ambulance officers immediately after the crime alleged in the current indictment, that he might not have any independent recollection of what he had done and therefore he puts the Crown to proof.
When I enquired of the learned Crown prosecutor what would be achieved by a trial by jury, as distinct from a trial by Judge alone, the learned Crown prosecutor told me that the question of whether the harm inflicted upon the victim, Mr Wongsamak, was grievous bodily harm, distinct from actual bodily harm, was quintessentially a matter for a jury. I have only had in 11 years, one jury trial where such an issue was left to a jury as the sole issue in the case. There was a fracture of a bone, but no residual symptomatology. Quite frankly, I have been dealing with medico-legal issues as a Judge now for 21 years next month and am acutely aware of what might constitute grievous bodily harm as distinct from actual bodily harm and I have no hesitation in believing that a judge with some experience in the field can adequately determine that matter as well as any jury can or ought or would.
The purpose of s 132A is to prevent the practice known as "forum shopping". Not only is it to prevent that practice, it is to prevent the appearance of that practice. When I asked the learned Crown prosecutor whether it would be appropriate, to avoid the appearance of forum shopping, if I made the decision that the matter be tried by Judge alone, that it be heard by another Judge, the learned Crown prosecutor told me that if I made such an order there would be no application by the Crown that someone other than me should hear the Judge alone trial. In other words, the Crown accepts that this is not an actual exercise in "forum shopping". The only ruling I have made thus far was against the accused, when I determined that coincidence evidence should be admitted in the first trial.
Bearing in mind the difficulties which I accept that the defence has had in obtaining instructions from the accused, I accept that it was imprudent to seek instructions from the accused to have a trial by judge alone in the second trial, whilst the issues concerning the first trial were still extant. In the circumstances, I believe that I should exercise my discretion under s 132A(1) and grant leave to the accused to make an application for an order under s 132 less than 28 days before the date fixed for hearing.
That issue raised a nice point as to whether the time for making the application ran from the date when the first trial was set to commence or ran backwards from the date when the second trial should have commenced had the first trial proceeded. However, that I need not decide.
The issue then becomes whether it be in the interests of justice that the current matter be heard by a Judge sitting alone. I have carefully read what fell from the McClellan CJ at CL in R v Belghar [2012] NSWCCA 86 and also what fell from Hidden J, particularly at [118] and also the decision of Bellew J in R v King and the decision of Latham J in R v Dean. It is clear that the fact that an accused has made an application for trial by judge alone is relevant, but not determinative. It is also clear on the case law that there is no presumption that trial should be with a jury, thereby casting a burden of proof on the accused. The accused carries an evidentiary onus but the Court does not need to determine where the interests of justice lie by requiring the evidence to rise to a level by which a "presumption" of trial by jury is displaced. Each mode of trial has its particular characteristics and accordingly, depending on all the circumstances relating to a particular case, the Court may conclude that the interests of justice are best served by a trial by judge alone.
There is no compelling reason in the current matter for trial by jury. There is a compelling reason, based on the accused's mental health, that the trial be short. Accordingly, I believe it is in the interests of justice, not merely because of the interests of the accused personally, but because it is in the interest of our community that persons with a mental illness have a form of trial that meets the requirements of their medical condition, that meets the requirements of their ability to concentrate, and for a person such as the present accused, who may not recollect why or in what circumstances or how the offence was committed, that there be a reasoned explanation of why he might be guilty of the criminal offence, or, indeed, why he might not be guilty of the offence alleged against him. I have formed the view that it certainly is in the interests of justice that there be trial by Judge alone. I so order.
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Decision last updated: 16 May 2016