R v White

Supreme Court of NSW|2022-08-03|Before: Ierace J

Solicitors: Solicitor for Public Prosecutions (NSW) Dib & Associates Lawyers File Number(s): 2020/85581

Judgment

The accused is charged with one count of murder, two counts of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW) and four counts of firing a firearm at a dwelling-house, contrary to s 93GA(1) of the Crimes Act.
In the course of two mentions of the matter in March 2022 before the arraignment judge, Senior Counsel for the accused foreshadowed that "the vast majority of factual matters … are not in dispute" and that the defence would raise the defences of "not guilty by reason of mental illness, and in the alternative, substantial impairment". He added that "it is most likely that there will be an application for a judge-alone trial in this matter". The Crown indicated that it would not agree to a trial by judge alone ("a judge alone trial"). The trial was set down to commence at Newcastle on Monday 26 September 2022.
The trial was mentioned before me on 22 July 2022. The accused has been represented by Mr Calokerinos of counsel since April 2022, Senior Counsel having withdrawn from the matter. Mr Calokerinos indicated that the defence still intended to rely upon the same defences and that a judge alone trial was still to be sought, although an application had not been filed. The Crown maintained its opposition. The accused was directed to file his application for trial by Judge alone by Friday 29 July 2022 and the hearing of the application was fixed for 3 August 2022, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW).

The basis of the application for a judge alone trial

The sole basis for the application is the technical nature of the anticipated forensic evidence. Accordingly, it is appropriate to briefly consider the nature of the prosecution case and the likely complexity of the anticipated forensic evidence. For the purposes of the application, the Crown has tendered a draft of the Crown Case Statement and both parties have tendered reports of the forensic experts they have retained.

The nature of the prosecution case

The accused was aged 40 at the time of the alleged offences. According to the draft Crown Case Statement, the prosecution alleges that, from about 6pm on 17 March 2020, the accused commenced firing rounds from two firearms from his residential property at individuals and houses in the street in which he resided. Four persons were wounded and one, Byron Tonks, was fatally wounded. Police arrived at the scene at about 6:11pm and, following a siege, the accused surrendered at about 7:15pm and was taken into custody. When arrested, the accused allegedly admitted having consumed "two points of ICE today and then the rest while you guys were there". He was interviewed by investigators ("the ERISP"). During the ERISP, he allegedly informed police that he had taken approximately 1g of methylamphetamine that day but otherwise had not used it for 50 days prior to the incident.
The accused has informed the Court that it likely that there will be little or no challenge to the evidence to be called by the prosecution as to what occurred.

The legislative framework for the impairment defence and the substantial impairment defence

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"), commenced on 27 March 2021, repealing its predecessor, the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the previous Act"). It introduced a partly codified test for the statutory "defence of mental health impairment or cognitive impairment" ("the impairment defence"), which was previously the common law defence of mental illness, which embodied the M'Naghten rules. The relevant parts of the statutory provision for the impairment defence, for the purposes of this application, are as follows: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). …"
The two threshold mental conditions of "mental health impairment" and "cognitive impairment" are the subject of non-exclusive statutory definitions in ss 4 and 5 of the Act: "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. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (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. 5 Cognitive impairment (1) For the purposes of this Act, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder."
The Act amended s 23A of the Crimes Act, which was re-named "substantial impairment because of mental health impairment or cognitive impairment" ("substantial impairment"). Those conditions replace the foundational mental condition previously described in that section as an "abnormality of mind arising from an underlying condition". The relevant parts of s 23A of the Crimes Act, for the purposes of this application, are 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. … (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. …"
The definitions in the Crimes Act of both conditions are identical to those in the Act: see s 4C (defining mental health impairment) and s 23A(8) (defining cognitive impairment).

The anticipated forensic evidence

The accused provided a history to investigators during the ERISP and to the forensic experts. That history was to the effect that, in 2000, he suffered a traumatic head/brain injury during an assault and he has a history of prohibited and pharmaceutical drug abuse, for which he received treatment in the community over a period of years.

Dr Furst's report dated 7 July 2021

The defence has retained Dr Richard Furst, forensic psychiatrist. In his report dated 7 July 2021, Dr Furst noted in the history he took from the accused that, following arguments over the previous 12 months with his neighbours, he felt he had "got out of control. I shouldn't have done it. It wasn't my intention. … I was trying to defend myself". The accused told Dr Furst that he was "high on drugs" at the time.
The psychological impact of the assault in 2000 was suggestive of a Post-Traumatic Stress Disorder ("PTSD"). His chronic use of drugs had caused a substance use disorder.
Dr Furst diagnosed the accused as having an "Acquired Brain Injury - Persistent Neurocognitive Disorder" as a result of the assault in 2000, although it appears to have been a conditional diagnosis, pending confirmation of the injury and clinical documentation since that time: "He apparently suffered a traumatic head/brain injury when beaten in 2000, as well as sustaining injuries to his chest, back and his knee. I was not provided with any medical records from the Hunter Area Local Health District or from the Central Coast Local Health District to [confirm] the history of injuries and/or his related disability/treatment over the last 20 years. I was not provided with his Justice Health medical records either. I would strongly suggest that those records be obtained by his legal team and/or by the Court under subpoena, to assist in clarifying Mr White's trauma history, diagnosis, disability and treatment, especially given the seriousness of the offending in question."
Dr Furst considered that the accused had "a mental health impairment in the form of his PTSD and he probably also has a cognitive impairment by virtue of his acquired head injury," which I note would be relevant to ss 4(2) and 5(2) of the Act.
Dr Furst was of the opinion that the accused did not qualify for the impairment defence but that he did have available to him a forensic basis for the substantial impairment defence, disregarding the effects of the methylamphetamine that he ingested that day, since, within the meaning of ss 23A(1) and (3) of the Crimes Act, his: "… capacity to control himself at the time in question was substantially impaired by his mental health impairment in the form of his PTSD and paranoid thinking and/or by his cognitive impairment."

Dr Eagle's report dated 9 November 2021

Dr Kerri Eagle, forensic psychiatrist, has been retained by the Crown. The material that she was provided with included clinical records for the accused from Justice Health, relevant Local Health Districts and medical centres. In her report, Dr Eagle referred to an entry in the clinical records of the Hunter New England Local Health District regarding medical treatment on 14 June 2000, following an alleged assault.
The clinical records that were reviewed by Dr Eagle disclosed a lengthy history of treatment for prohibited drug abuse and behavioural issues, including entries within a fortnight of the shootings. In that period, the accused was psychiatrically assessed. Dr Eagle referred to parts of the Central Coast Local Health District records: "[The accused] had contact with [Registered Nurse] George on 27 February 2020 who noted 'Has ceased ice use but still feels very angry and feels at risk of acting on angry impulses.' It was noted 'has been feeling angry and wound up. Has smashed up his house during this relapse to ice use. ... Getting very frustrated with people around him a lot of whom are also using drugs.' A referral to drug and alcohol counselling service by [Registered Nurse] George noted 'co-morbidity with some mental health diagnosis. Loss of impulse control, compounded by frontal lobe damage (beaten around the head with baseball bat years ago).' He was noted to have an addictive personality. It was noted 'states very angry, fears he could fight and end up back in Jail.' He was noted to seem on edge. On 4 March 2020, [the accused] was referred for a psychiatric assessment and was [assessed] by Dr Edwards. Dr Edwards noted 'main complaint is intense mood swings with episodes of uncontrolled rage.' He noted [the accused] reported his neighbours 'talk about him, call him names, taunt him. He knows this through the hairs on the back of his neck. Their glances mean something menacing.' 'He hears his name called.' He 'has a loosely formulated plan to kill his neighbours as well as himself in 12 months, after [he] saves enough money to buy necessary items eg petrol, knives.' It was noted 'on discussion realises it is morally wrong and actually does not wish to do it in many ways - ambivalent. No immediate plans.' Dr Edwards felt [the accused] had an 'organic psychosis - head injury, chronic heavy THC + amphetamines, likely to improve ....' Sodium valproate 100mg twice daily was commenced. He was referred to community mental health for psychiatric review and case management. It was felt targeted CBT (cognitive behaviour therapy) for delusional beliefs will be effective and commencement of an antipsychotic was deferred. On 9 March 2020, [the accused] reported not using 'meth for a month and THC for two weeks and described what appeared to be valid withdrawal symptoms.' He was [noted] to have 'began talking about the other residents in his DOH complex and how angry they make him with their noise and behaviours.' Strategies were discussed to manage situations of 'provocation and annoyance.'"
Dr Eagle noted that the accused described signs and symptoms of PTSD for a few years following the alleged assault for which he was prescribed a mood stabiliser. He did not describe "persistent re-experiencing phenomena" after that period. Dr Eagle was of the opinion that there were no current "persistent signs or symptoms" that would justify a diagnosis of PTSD.
Dr Eagle's diagnoses are an "antisocial personality disorder" and a "severe substance use disorder" (on opioid maintenance treatment). She concluded that, at the time of the alleged offences, the accused was experiencing methylamphetamine intoxication. Dr Eagle was of the opinion that the symptoms that the accused described to Dr Edwards on 4 March 2020 did not appear to be consistent with persecutory delusions and were more likely reflective of antisocial attitudes and his general perception of the world.
Dr Eagle said that, although an antisocial personality disorder is not excluded from the definition of a "mental health impairment", the accused's antisocial attitudes and behaviours did not impact on the matters set out at s 4(1) of the Act. Therefore, she considered that that mental condition is not available to him as a basis for either the impairment defence or the substantial impairment defence.
Dr Eagle continued that if, contrary to her opinion, the accused is found to have a mental health impairment, he would nevertheless not qualify for the impairment defence because the forensic evidence would not establish that he came within ss 28(1)(a) or (b) of the Act. He would also not qualify for the partial defence of substantial impairment even if he had a mental health impairment, because: "If the effects of self induced intoxication are disregarded, I do not believe [the accused] was substantially impaired in his capacity to understand events, judge whether his actions were right or wrong, and control himself by any underlying mental health impairment."

Dr Furst's report dated 31 January 2022

Dr Furst provided a further report dated 31 January 2022. In the interim, he received the material that Dr Eagle had for her report. In light of that material, in particular, the psychiatric assessment by Dr Edwards, Dr Furst revised his earlier opinions. He agreed with Dr Eagle that the PTSD had likely dissipated and was now of the opinion that the accused had an organic mood disorder with psychotic features, stating that "the causation is presumed to be in the brain injury that the accused suffered in 2000 and/or other organic causes".
Dr Furst said that the organic mood disorder qualified as both a psychotic disorder and an affective disorder, within the meaning of ss 4(2)(b) and (c) of the Act. Dr Furst maintained his opinion that the impairment defence was not available and the substantial impairment defence was, although now on two bases pursuant to s 23A(1)(a) of the Crimes Act. Those bases were the accused's capacity to judge whether his actions were right or wrong, and his capacity to control himself.

The accused's submissions

The basis of the application is that a jury would encounter difficulty understanding the forensic evidence, which is likely to be quite technical. In written submissions, Mr Calokerinos relied upon two judgments of this Court concerning successful applications pursuant to s 132(1) of the Criminal Procedure Act where, under the previous Act, the accused intended to rely upon the defence of not guilty by reason of mental illness and, alternatively, substantial impairment. These were R v Kerollos [2020] NSWSC 1758, decided by R A Hulme J, and R v Hadler [2018] NSWSC 1151, in which Wilson J said, at [39]: "… 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."
In oral submissions, Mr Calokerinos referred to the Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) ("the DSM-5"), suggesting that a jury would struggle to understand the various diagnoses that will be advanced by Dr Eagle and Dr Furst that are found in the DSM-5, without the "clinical skills and acumen [that] are required". As to s 23A(1)(b) of the Crimes Act ("the second limb"), counsel submitted that "society norms aren't the most prevalent consideration in this trial".

The Crown's submissions

The Crown submitted that a judge alone trial was inappropriate where the defence was advancing the substantial impairment defence, since the second limb requires the application of community standards, which is appropriately done by a jury.
The Crown submitted that this is not a trial in which the expert evidence to be given by the two forensic psychiatrists will be beyond the comprehension of a jury; it is evidence of a type that is regularly adduced in trials before juries.

Consideration

Section 132 of the Criminal Procedure Act sets out the circumstances in which an application for a judge alone trial may be made and the relevant test: "132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that - (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means."
An affidavit by the accused's solicitor, Ahmed Dib, was read on the application. Mr Dib related certain advice his office had provided to the accused as to the issue of a judge alone trial and conversations in which he asked the accused to explain his understanding of the differences between a judge alone trial and jury trial, and why he preferred a judge alone trial. Accordingly, pursuant to s 132(6), I am satisfied that the accused has sought and received advice in relation to the effect of a trial by judge order.
A trial by judge order is only to be made if the Court considers that it is in the interests of justice to do so: s 132(4) of the Criminal Procedure Act. The terms of s 132(5) qualify that test in a way that is relevant to s 23A(1)(b) of the Crimes Act. In Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229, the Court of Criminal Appeal (Johnson J, McClellan CJ at CL and Fullerton J agreeing) observed that the terms of s 23A(1)(b) of the Crimes Act "involv[es] a value judgment by the jury representing the community".
Although the two cases relied upon by the accused were instances of a judge alone trial being granted where the accused was advancing essentially the same defences as in this case, in both cases there were exceptional circumstances, in the absence of which the application would likely not have been granted. Kerollos was a case determined at a time when the Covid-19 pandemic was wreaking havoc with juries. R A Hulme J, at [54], explained that he granted the application in order that the trial would proceed as soon as possible for the sake of the accused and the deceased's family, thus avoiding further adjournments due to the impact of the pandemic on the criminal justice system.
In Hadler, Wilson J found, at [73]-[77], that a judge alone trial was in the interests of justice on the basis of expert evidence that the accused's mental health was fragile and there was a real risk that the stress of a jury trial would cause him to become unfit to be tried, thus aborting the trial, in which case it might not recommence for a prolonged period.
In this case, there are no exceptional circumstances at play. Presently, the Covid-19 pandemic is not disrupting the conduct of jury trials to the extent that it did over the last two years. In my view, the second limb of the substantial impairment defence is a matter that should, where possible, be left to a jury as the finder of fact best equipped to make that value judgment. As to the inevitable complexity of forensic psychiatric evidence, Dr Furst and Dr Eagle are experienced expert witnesses in jury trials who are quite capable of distilling complex forensic concepts into language and notions that can be understood by members of the community without a medical background.
Accordingly, I dismiss the accused's application for a trial by judge alone order.

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: 17 March 2023

Mental Health (Forensic Provisions) Act 1990(NSW)

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