Criminal law - Trial by judge alone - Turns on own facts

Criminal Procedure Act 2004 (WA), s 118

(These reasons were delivered orally and have been edited from the transcript.)

1 The applicant, accused Garry Edmund Brown, is charged with two counts of murder. The indictment alleges:

(1) that on 24 August 2011 at Maylands, the accused murdered Christopher Stoodley; and

(2) on the same date and at the same place, the accused murdered Jenni Kay Barrett.

2 The trial of these charges has been listed for four weeks commencing on 5 August 2013. By application dated 23 May 2013, the accused applies for an order, pursuant to the Criminal Procedure Act 2004 (WA) (the Act) s 118, for a trial by judge alone without a jury.

3 The application is supported by the affidavit of Natasha Heidi Erlandson, the accused's solicitor. The parties also request me to have regard to the State's brief for prosecution. I have found it unnecessary to look at the subpoenaed documents.

(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

...

(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

(5) Without limiting subsection (4), the court may make the order if it considers -

(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

5 The accused says that it is in the interests of justice that he be tried by judge alone. He says that he will make admissions that he killed both victims by stabbing them at the place and time as alleged by the state. He says that the defence will be one of insanity pursuant to the Criminal Code (WA) (the Code) s 27 on the basis that he was at the time in such a state of mental impairment as to deprive him of the capacity to control his actions because he had an adverse drug reaction to a prescribed antidepressant, which he took as a medication.

6 He says that the defence may also raise issues of intent and the role of involuntary intoxication as provided for in the Code, s 28. Thus, he says the issues to be determined at trial will primarily relate to the determination of matters of expert evidence and to the application of that expert evidence to the legal principles in the Code, s 27 and s 28. He says that given the issues to be determined at trial, the case is more properly determined by a judge alone rather than by a judge and jury.

7 The State opposes the application. It does not dispute that the accused was in a state of mental impairment at the time of each killing, but it denies that the state of mental impairment was such as to deprive the accused of the capacity to control his actions. It acknowledges that the determination of this issue will involve a consideration of the conflicting evidence of experts from the State and the defence. However, the State also says that the finder of fact will have to make findings about the accused's behaviour.

8 It says that the determination as to whether, at the time of each killing, the accused had the capacity to control his actions will almost entirely depend upon the finder of facts' assessment of the accused's conduct leading up to 25 August 2011, his behaviour during and after the incident the subject of the charges, and his behaviour during the records of interview with the police after the incident. It says that a jury is in the best position to make such findings of fact. It says that the expert evidence itself is not overly complex or technical. Thus, it submits that there is no matter which has been identified that makes it in the interests of justice that the matter be heard before a judge alone.

9 The State's written submissions also said that the identity of the killer would be an issue, but now that the accused has said that he will admit that he killed the victims that concern has become irrelevant. The State disputes the defence contention that the conflict between the expert evidence is such as to make the issues complex or the legal principles too hard for a lay jury to apply.

10 The Act, s 118, has now been considered in a number of cases. It is generally accepted that the section provides a discretion to a judge to grant an order for a trial by judge alone if the judge considers, on the balance of probabilities, 'it is in the interests of justice to do so'. If the discretion is not exercised the default position is that the trial will be heard by judge and jury. In the decision of Coates v The State of Western Australia [2009] WASCA 142, Buss JA, with whom Martin CJ and Owen JA agreed, said that:

It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.

The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury [103] - [104].

The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined.

12 Neither party suggests that s 118(6) is of application. Even though the State suggests that there are factual issues which a jury is in a good position to decide, it does not suggest those factual issues require the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness.

13 On the other hand, there is a hint of suggestion from the defence that the complexity of the trial is likely to be unreasonably burdensome to a jury, in the sense that the case will involve the application of disputed expert, psychiatric and pharmacological evidence to the legal principles in the Code, s 27 and s 28, in the light of wideranging evidence of the accused's behaviour before, during and after each killing.

14 In the alternative the accused says that even if those matters do not render the complexity of the trial unreasonably burdensome to a jury, they still mean that it is in the interests of justice for the matter to be determined by a judge alone rather than by a judge and jury.

15 One other factor that I may take into account in deciding the matter is the wishes of the accused, but they are only one matter to be taken into account. The accused accepts that his wishes are not determinative of an application such as this.

16 I also take into account what McKechnie J said in TVM v The State of Western Australia [2007] WASC 299, where his Honour said:

Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone. Where a case depends on a detailed consideration of scientific evidence, including DNA evidence, there is a trend towards trial by judge alone. The effect of prejudicial publicity has been acknowledged as a factor favouring trial by judge alone [6].

17 I note that that latter consideration does not apply at all in this case. The fact that it is appropriate to order trial by judge alone in a murder case involving an insanity defence was apparently accepted by the Court of Appeal in Hone v The State of Western Australia [2007] WASCA 283 where Miller JA, with Wheeler JA agreeing, said:

The order was made by reason of the fact that the psychiatric evidence to be led in the case was likely to be more properly determined by a judge alone than by a jury. This was because the psychiatric evidence was to be directed to the question whether or not the accused was of unsound mind at the time of the commission of the offences: s 27 Criminal Code [18].

18 The State's case is that on 25 August 2011 the accused was in a unit with the two victims. He had an argument with one or both of them and stabbed them multiple times causing their deaths. There was an eyewitness to part of the attack. After the attack the accused left the unit and went to the residence of some old friends. Those people called the police and the accused was arrested. He subsequently participated in two records of interview with the police. The accused gave differing versions of events to the police. In the first interview he said that the victims fought and that in the course of that fight they stabbed each other. He told the police that he thought that the eyewitness might have finished them off because he wanted them out of his unit. In the second interview the accused told the police that he and the eyewitness had planned to hurt the victims. He admitted to stabbing one of the victims and said that the eyewitness had stabbed and killed both victims.

19 Dr Bryan Tanney has provided an opinion to the accused which states that at the time of each killing the accused was 'experiencing a hypomanic and occasionally manic disorder as an adverse drug reaction from desmethylvenlafaxine' (DMVF). Dr Tanney says that the accused was mentally impaired at the time, experiencing reactivated posttraumatic stress disorder (PTSD), the impact of which was amplified by dysphoric hypomania that was a side effect of an adverse drug reaction to DMVF.

20 Dr Tanney considers that the impairment left the accused unable to control his actions between 5 and 25 August 2011, although there was an ongoing fluctuation of his capacity. This was due to the removal of some moderating influence of opiates, being methadone, that 'uncovered' the hypomania that had been present since early May. Thus, Dr Tanney is of the view that at the time of each killing the accused was deprived of the capacity to control his actions due to mental impairment.

21 The State has filed and served reports from Dr Adam Brett, psychiatrist, and Professor David A Joyce, pharmacologist. Dr Brett is of the view that the accused had a mental impairment at the time of each killing and that this disorder was PTSD with a worsening of his symptoms due to the cessation of his opiates. Dr Brett is also of the opinion that the accused has a dissocial personality disorder, he has a low tolerance to frustration and a low threshold for discharge of aggression. He says that it appears that the accused used drugs to try and mitigate this intolerance. Dr Brett disagrees with Dr Tanney's conclusions that the accused was 'unable to control his actions from August 5 to 25'. He is of the view that in neither of the two accounts given by the accused to the police was there evidence of an inability to control his actions. Neither does Dr Brett believe that the accused's mental impairment deprived the accused of the capacity to know what he was doing.

22 Professor Joyce has provided a report which details the effects of various drugs within a person's body, including the effect after interaction with other drugs and substances.

23 Having regard to the State's brief and the submissions of the parties, it seems that the finder of fact will have to decide what it is that the accused did in the days leading up to each killing, during each killing and after each killing. However, I do not understand that the accused will be calling independent evidence to dispute the evidence of the State's witnesses as to what he did at these times. As the accused's written submissions say, the evidence of the lay witnesses will be 'largely uncontentious'. Except to a limited extent, the fact finder will not have to decide between differing versions of events; rather, the finder of fact will have to make findings based on the evidence of lay witnesses who may have different recollections of events which cover many days. This is normally a task which a jury made up of laypeople is well equipped to perform. It is also a task which judges sitting alone regularly perform in the civil jurisdiction or in the criminal jurisdiction where there are factual matters disputed for sentencing.

24 In any event, in respect of a trial judge's ability to make findings of fact, I agree with Owen JA's comments in Coates v The State of Western Australia at [10] - [11], which are to the effect that a jury has certain advantages in making findings of fact, which a trial judge does not have, but that a trial judge has the advantage of experience in making findings of fact, which a jury does not have. As Owen JA said in conclusion:

The experience gained by a trial judge over time in relation to a wide range of fact-finding methods can be a peculiar advantage [11].

25 My view is that primarily it is not the facts which will be in dispute in this case but rather what conclusions can be drawn from those facts as to the accused's ability to control his actions when he did certain things and why the accused acted as he did. In particular, the extent to which his actions were brought about by mental impairment due to his intoxication by drugs will be an issue, as will be whether his mental impairment was such as to deprive him of his capacity to control his actions, and, if so, whether his intoxication was involuntary or voluntary. Finally, the effect of all these matters on the question of intent may be an issue. Therefore, I am of the view that the central issue for determination will be the accused's state of mind at the time of each killing and to a lesser extent before and after these times. In deciding these issues the fact finder will have to consider the expert psychiatric and pharmacological evidence that I have referred to.

26 In Hone, the Court of Appeal quashed two convictions for murder imposed by a judge sitting alone. The defence, which was rejected by the trial judge, was insanity on the basis that the accused was in such a state of mental impairment as to deprive him of his capacity to know what he was doing. In their reasons Miller JA and Steytler P discuss the role of the finder of fact in cases where insanity was the defence, both where the psychiatric evidence was disputed and where it was not disputed.

27 What their discussion made clear was that in a case involving an insanity defence and where there is evidence that casts doubt on an expert medical opinion, the finder of fact is entitled to reject that opinion but that the process by which that is done is not necessarily straightforward. It is a task which a jury of lay people may find difficult to perform. As Steytler P observed:

[There is] the danger of rejecting the reasoning of an expert (psychiatric) witness by reference to the reasoning of lay people, who use commonsense based on their experience of sane, rather than mentally ill, people [7].

28 The case of Hone itself shows that it is possible for even a judge who is experienced and to whom the legal principles are well known to reason incorrectly in such a case. This indicates the difficulties involved in the reasoning process. At least where a judge tries the case alone, the judge must give reasons for his or her decision so the reasoning leading to the decision, if it is not according to law, is revealed and able to be corrected so that an injustice does not occur.

29 What Hone also indicates to me is that it is not only in insanity cases where the expert evidence is not disputed or where the evidence is straightforward, that it may be in the interests of justice for the case to be tried by judge alone. The complexity of an insanity case borne from a combination of the accused's multidrug and substance abuse, expert opinion regarding the interactions between those drugs and substances, differing expert psychiatric opinions and an involved factual background may also mean that it is in the interests of justice for a case to be tried by judge alone. This is because a judge is more experienced than lay persons in deciding cases requiring the application of legal principles, which in themselves are far from straightforward, to disputed and complex expert evidence against a background of other factual circumstances. In my view, this is such a case.

30 In The State of Western Australia v Evans [2012] WASC 87, Commissioner Sleight ordered a trial by judge alone in a case involving an insanity defence. The main basis for granting the trial by judge alone was pretrial publicity. In the course of his decision Commissioner Sleight indicated that he would not have granted a trial by judge alone on the basis of the other ground of the application, being the difficulty for the jury in resolving complex psychiatric evidence. He regarded the jury as being well able to deal with matters involving disputed psychiatric evidence and the significance of the accused's behaviour before, during, and after the killing.

31 I distinguish Evans's case from this case on the basis that the facts in it were different. In particular, that case did not involve a consideration of disputed expert evidence on drug reactions and the extent of the effect of drugs and drug interactions on the accused. Although neither party in this case stress that those matters will be determinative of this case, I cannot but see that they will be significant issues for the finder of fact to consider. Secondly, Commissioner Sleight believed that Evans's case would involve the finder of fact considering the defence of provocation, a defence which does require a jury to consider objective community standards. That was a factor which weighed in favour of trial by jury in that case which does not exist in this case.

32 Another matter for me to take into account in this case is that the accused wishes to be tried by judge alone. As I have said, this is not a factor which I give significant weight to, as the accused has not stated why he believes that he is more likely to obtain a fair trial by judge alone. However, it is one factor to take into account. As I have said, I also take into account that this is not a case which would favour a trial by jury in the sense that it does require the application of objective community standards to the facts. As I understand it, that is not something that is required in this case.

33 I consider that the nature of the facts required to be found are not likely to be such that they make it preferable that the case be heard by a jury. It is not necessary for me to determine whether the case is likely to be unreasonably burdensome on the jury. I am also reluctant to do so because I did not hear argument from the parties on what that phrase means in s 118(5).

34 In conclusion, it is sufficient for me to find that after taking all of these matters into account, and particularly as I have decided that the central issue will be the mental state of the accused at the time of each killing, I am persuaded that it is in the interests of justice for this case to be tried by judge alone. This is because the case is likely to involve the finder of fact considering the effect of the accused's multidrug and substance use, expert opinion regarding the interactions between those drugs and substances, differing expert psychiatric opinions about the accused's state of mind, having regard to his psychiatric history, drug and substance use and an involved factual background.

35 Given the complexity of the issues in the trial, a trial by judge alone is more likely to result in a fair trial for the accused according to law. In other words, using Buss JA's words in Coates v The State of Western Australia, in my view:

[T]here is a real and substantial ... doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury [104].