THE STATE OF WESTERN AUSTRALIA -v- HARDY [2025] WASC 249 (24 June 2025)

1. The State's case is outlined in the Amended Statement of Material Facts that forms part of the brief of evidence that has been filed. The facts are in the following terms:

The accused is a 33 year old male, 201 centimetres tall and of a medium build. The victim is a 40 year old male, 188 centimetres tall and of a large build.

The accused resides in disability services accommodation located at 60 Jupiter Drive, Australind with the victim and their residential carers.

About 3.00pm on Friday the 20th of October 2023, the accused was at his home address, having formed the intention to kill the victim.

The accused walked into the victim's bedroom in possession of a dry wall hammer, but the victim, who was asleep on his bed, stirred causing the accused to abandon his plan at that time and leave.

About twenty minutes later the accused returned to the victim's bedroom, where he remained on the bed, sleeping. Without warning, or provocation, the accused stood on the bed and hit the victim forcefully to the head with the hammer a number of times, causing the victim to roll from the bed onto the floor. The accused continued his attack whilst the victim was on the floor, hitting him to the head with the hammer whilst the victim attempted to shield his head with his hands.

The accused left the victim in an unresponsive state on the floor, concealing the hammer behind his back as he left the room. He washed blood from the hammer under an outdoor tap and left the address via the rear gate after hearing a knock at the front door.

The victim was discovered by his carer a short time later in his bedroom, unresponsive and bleeding heavily. An ambulance was called and the victim was subsequently flown via helicopter to Royal Perth Hospital where he remained in a critical condition, on life support.

The consultant described the victim as suffering deep wounds to the skull which caused depressed skull fractures. The victim could not be operated on as it was believed he would not survive the procedure.

At 7.42pm on Friday, the 20th of October 2023, the accused was located by police in Treendale, wearing bloodied clothing. He later participated in an audio-visual record of interview (AVROI) during which he made admissions to assaulting the victim with the hammer, hitting him approximately 10 times to the head with both the striking face and the bladed edge of the hammer. He stated his actions were a result of side effects from his schizophrenia medication. The accused was subsequently charged with Grievous Bodily Harm and remanded in custody.

On the morning of Tuesday, the 24th of October 2023, the victim's life support was withdrawn and he was declared life extinct at 1.35pm.

At 2.20pm on Tuesday, the 24th of October 2023, the accused was arrested at Bunbury Regional Prison on suspicion of Murder. He participated in a further AVROI where he made full admissions to intending to kill the victim, having thought about doing so for two hours prior to the incident, wanting to end his life.

The accused was charged with the present offence.

(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.

(2) Any such application must be made before the identity of the trial judge is known to the parties.

(3) On such an application, the court may inform itself in any way it thinks fit.

(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

(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

(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.

1. The proper construction and interpretation of s 118 of the CPA has been considered in a number of decisions of the court, from which principles may be distilled. The Court of Appeal outlined the relevant legal principles in Steele v The State of Western Australia.[2]
2. Neither the accused nor the State has the right to elect a trial by judge alone.[3] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[4]
3. Section 118(4) of the CPA provides that the discretion of the Court to make an order for a trial by judge alone will not be enlivened unless the Court is affirmatively satisfied it is 'in the interests of justice' to do so.[5] If the Court is satisfied that it is in the interests of justice to do so, the Court then exercises the discretion of whether to make the order for a trial by judge alone.[6]
4. The phrase 'in the interests of justice' has a broad connotation and includes not only the interests of the accused but also the public interest.[7] The public interest 'in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts'.[8]
5. The fundamental issue with which s 118 of the CPA is concerned is that the accused receives a fair trial according to law and therefore, it will be in the interests of justice to order a trial by judge alone if that is necessary to ensure that the accused receives a fair trial.[9] There must be a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law before a jury.[10]
6. The concept of being in the interests of justice, therefore, is one that should not be narrowly defined and necessarily contemplates the analysis and weighing of relevant factors. What is in the interests of justice will vary from case to case.[11] Some guidance as to the factors that may be relevant in assessing the interests of justice is provided by s 118(5) and s 118(6) of the CPA, but both subsections state that the factors listed therein do not limit the general operation of the concept of what might be in the interests of justice. Where the issues at trial are likely to involve consideration of community standards of the type referred to in s 118(6), then that may favour a trial by jury.
7. A number of factors have been identified and considered in other cases that are relevant in determining what is in the interests of justice pursuant to s 118 of the CPA. No one factor will necessarily be paramount, with each factor given its appropriate weight in light of the particular facts and circumstances.[12]
8. The subjective views of the accused as to whether a trial by judge alone is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[13] However, as McKechnie J observed in TVM v The State of Western Australia,[14] 'to pay undue account to the subjective views of an accused person [...] may have the result that a decision is really being made for the interests of an accused, not the interests of justice'.[15] That is because the interests of justice are not coterminous with the interests of an accused.
9. It has been suggested that the obligation of a judge to provide reasons for decision is a relevant factor that may weigh in support of a trial by judge alone,[16] but there are differing views as to whether this is a relevant factor.[17] I do not accept that the obligation to provide written reasons is a relevant factor.
10. Another factor that may be relevant to the interests of justice is the length of the trial.[18]
11. A trial of extreme length may create problems for jurors who are required to forgo normal life commitments, or on whom such trials may place too great of a physical, mental or emotional burden.[19] In addition, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that the jury may be discharged for some reason, without reaching a verdict.[20]
12. There is not necessarily any time saved if an accused has a judge alone trial.[21] Certainly not for the trial judge who will undoubtedly take a period of time at the conclusion of the trial to complete and deliver written reasons to be published at the delivering of the verdict.
13. Another factor that may be relevant to the interests of justice is the complexity of the trial, which may raise difficult questions of fact. Such complexity will likely be unreasonably burdensome to a jury.[22]
14. The fact that a State's case is based upon circumstantial evidence has also been considered to be a factor supporting a trial before a jury.[23] I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case is based upon circumstantial evidence.[24]
15. In other cases, the nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that a jury may be unable to properly consider its relevance and significance.[25] Further, the evidence may involve intricate and disputed expert evidence or the jury may have difficulty in applying different legal principles in the context of complicated questions of fact.[26]
16. In Steele v The State of Western Australia,[27] the Court of Appeal observed:

(7) In enacting s 118, Parliament must be taken to have known of the following well-established and long-standing principles in relation to criminal trials by or before juries:

(a) The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.

(b) The criminal justice system, as administered by the appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision-making or juries is unaffected by matters of possible prejudice.

(c) The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. However, what is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations.

1. The overarching consideration in determining whether it is in the interests of justice that an accused be tried by judge alone is whether the accused can receive a fair trial by jury.[28]
2. Therefore, pre-trial publicity is a significant factor. In TVM v The State of Western Australia, McKechnie J outlined the extent and nature of pre-trial publicity that may create an environment in which the accused is unable to receive a fair trial. McKechnie J stated the following:[29]

It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear.

1. In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre‑trial publicity:[30]

The issue of pre-trial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pre-trial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527 at 532-533 per Street CJ, Yeldham and Finlay JJ agreeing; Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 per Buss JA, with whom Owen, Wheeler and Pullin JJA agreed. It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM (at [70] - [73]); John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J. In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (at 614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs (at [87]). Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' (at [33]).

1. There has been support for judge alone trials where the issue for determination at trial is the mental capacity of the accused under s 27 of the Criminal Code. In TVM v The State of Western Australia McKechnie J observed that:[31]

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.

1. In Arthurs v The State of Western Australia,[32] Martin CJ observed that a trial by judge alone may be ordered when the state of mind of the accused is relevant and therefore, the findings in the trial may depend upon an assessment of expert evidence. His Honour referred to two previous cases in support of that proposition, being The State of Western Australia v Tarau,[33] and The State of Western Australia v Iley.[34] There are now other cases in which an order for a judge alone has been made where an issue at trial was the state of mind of the accused under s 27 of the Criminal Code.[35]
2. The Court of Appeal accepted in Hone v The State of Western Australia that it may be appropriate to order a trial by judge alone in a murder case involving an insanity defence.[36] Miller JA stated:[37]

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 of whether or not the accused was of unsound mind at the time of the commission of the offences.

1. However, it will not be axiomatic that a trial in which the insanity defence is to be determined will be conducted by a judge alone. In The State of Western Australia v Evans,[38] Commissioner Sleight ordered a trial by judge alone in a case involving the insanity defence. The main basis for granting the trial by judge alone was pre-trial publicity.[39] In his decision, Commissioner Sleight stated 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 to resolve complex psychiatric evidence.[40] Commissioner Sleight regarded the jury as being well able to deal with matters involving disputed psychiatric evidence and the behaviour of the accused at the relevant time.[41] Though, it must be recognised that in The State of Western Australia v Evans there were further factual disputes involving a claim of the defence of provocation.[42] That defence does involve an assessment of community standards.

1. The basis of the application for a trial by judge alone is that there is a single issue for determination at trial, which is whether the accused was of unsound mind within the terms of s 27 of the Criminal Code, and that the expert evidence that will be led at trial will be more properly considered by a judge sitting alone without a jury.
2. The application is supported by submissions filed on behalf of Mr Hardy that confirms that Mr Hardy is pleading not guilty to the count on the indictment on the basis of unsoundness of mind pursuant to s 27 of the Criminal Code. Both counsel for the State and Mr Hardy confirm that the issue at trial will be whether Mr Hardy was of unsound mind at the time of the commission of the physical events giving rise to the count of murder. Both counsel submitted that State and defence case do not involve any substantive factual issues requiring the application of objective community standards.
3. In oral submissions, counsel stated that it is anticipated that the trial may be conducted with an agreed statement of facts. Therefore, the expert witnesses will be the only witnesses required at trial.
4. The State has obtained an expert report from Dr Adam Brett, psychiatrist, dated 28 January 2025. The accused has obtained one expert report from Dr Elizabeth Tate, psychiatrist, dated 18 September 2024. I have considered the expert reports.
5. Dr Brett in his report of 28 January 2025 states as follows:[43]
   1. Mr Hardy had a history and presentation that was consistent with treatment resistant paranoid schizophrenia. His first admission was 10 years ago. He has had multiple admissions related to suicidal ideas, threatening behaviour and relapses of his illness within the context of poor compliance and drug use. It is noted that Mr Hardy had a treatment resistant disorder and had residual symptoms even when compliant and drug free.
   2. Mr Hardy had a severe and brittle form of schizophrenia. His treating doctor described multiple psychotic symptoms when she saw him just over a week before the offence and it was documented that it was the best she had ever seen him. It seems that his mental health could fluctuate very quickly. Stress, poor compliance and drug use made him even more unstable.
   3. I believe that at the time of the offending behaviour, Mr Hardy had a mental impairment, as defined in the Criminal Code, namely: the mental illness schizophrenia.
   4. I believe that at the time of the offending behaviour, he was acutely unwell. The evidence for this was from his history, the police interviews and the collateral information. There was good evidence that Mr Hardy was experiencing his typical relapse signature.
   5. I believe that at the time of the offence he had the capacity to know what he was doing. That is, he understood that he was hitting the victim with a hammer.
   6. I believe that at the time of the offence he had the capacity to control his actions. He had obtained a hammer, for his own protection and it did not appear to be an impulsive act.
   7. I believe that at the time of the offence he was deprived of the capacity that he ought not do the act. I believe that his psychosis was so severe he could not reason properly. I believe that he was acting on his delusional beliefs that were exacerbated by his auditory command hallucinations and his delusions of reference. He believed the victim was doing him harm and he had little choice but to harm him.
   8. He believed that the situation had got out of hand and it was 'him or me'. He did not believe that he had an option. There was good evidence that he was severely unwell.
   9. Mr Hardy continues to have residual symptoms of schizophrenia, despite ensured medication (depot). Ideally he would be receiving care in the forensic mental health inpatient unit, however, given the scarcity of beds and his relative stability, this is not currently an option.
6. Dr Tate in her report states as follows:[44]
   1. Mr Hardy had a long history of severe mental illness, namely paranoid schizophrenia characterised by delusions and hallucinations, negative syndrome and poor insight. His illness was known to be resistant to treatment and exacerbated by poor compliance and ongoing substance use. He had been discharged on a CTO after a long hospital admission only a few months prior to the incident.

1. In my opinion the evidence shows that Mr Hardy was experiencing symptoms of chronic paranoid schizophrenia at the time of the alleged offence. His symptoms were exacerbated by poor compliance with oral medications and significant distress regarding the behaviour and motivation of the victim, which Mr Hardy perceived to be persecutory and abusive.
2. In my opinion, Mr Hardy lacked the capacity to know that he ought not to do the act as a result of symptoms of chronic paranoid schizophrenia. I believe he would fulfil the criteria for a defence under Section 27(1) of the Criminal Code.
3. Should he successfully avail himself of a defence under section 27 I believe a Custody Order to the Frankland Centre would be the most appropriate outcome. His mental illness requires comprehensive treatment from a multidisciplinary team in a hospital setting. Once optimised he may be able to transition to the community with a robust management plan and support package.
4. Mr Hardy will require lifelong assertive mental health care. In view of the treatment resistant nature of his illness a re-trial of clozapine should be considered. Given his history of serious adverse effects this would need to be done carefully with advice from a cardiologist in a hospital setting.

1. It may be concluded from the submissions of counsel that the principal issue for determination at trial will be the accused's mental capacity at the time of the alleged offending. That determination will rely, to a significant degree, on the evidence of the expert witnesses. I observe that both experts have expressed the opinion that the accused, at the time of the offending, was deprived of the capacity to know that he ought not do the act. I consider that the expert evidence should be assessed by a judge sitting alone without a jury.
2. There is no issue to be resolved at trial that will require a jury to consider objective community standards.
3. During the hearing of this application I expressed the view that it is preferable that counsel prepare an agreed statement of material facts. The proposed alternative approach of the parties to tender the entire State brief of evidence may be problematic at trial. That approach appears to contemplate that the expert witnesses give testimony and that the trial judge subsequently make factual findings on matters that may or may not be in dispute by considering volumes of material not referred to during the trial. The parties should seek to formulate an agreed statement of material facts. Counsel should assess whether any statements of witnesses and exhibits are necessary. If so, that evidence should be received at trial with counsel identifying the purpose of the material and any issues that may be in dispute.
4. Accordingly, it is in the interests of justice to make an order that there be a trial by judge alone and I exercise my discretion by so ordering.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Steele v The State of Western Australia [2018] WASCA 133.

[3] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [317].

[4] The State of Western Australia v Mack [2012] WASC 127 [43].

[5] LFG v The State of Western Australia, [318].

[6] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21].

[7] LFG v The State of Western Australia [319] - [320].

[8] LFG v The State of Western Australia [320].

[9] LFG v The State of Western Australia [321].

[10] LFG v The State of Western Australia [319] - [321].

[11] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [11].

[12] LFG v The State of Western Australia [324].

[13] Arthurs v The State of Western Australia [2007] WASC 182 [79] - [80]; The State of Western Australia v Rayney [26].

[14] TVM v The State of Western Australia [2007] WASC 299.

[15] TVM v The State of Western Australia [30] - [32].

[16] Arthurs v The State of Western Australia [73] - [76].

[17] TVM v The State of Western Australia [32]; The State of Western Australia v Wark [2017] WASC 154 [108].

[18] Criminal Procedure Act 2004 (WA) s 118(5)(a).

[19] Criminal Procedure Act 2004 (WA) s 118(5)(a).

[20] The State of Western Australia v Rayney [37].

[21] The State of Western Australia v Rayney [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380 [29].

[22] Criminal Procedure Act s 118(5)(a).

[23] The State of Western Australia v Martinez & Ors [36].

[24] Arthurs v The State of Western Australia [61] - [67]; TVM v The State of Western Australia [15].

[25] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.

[26] LFG v The State of Western Australia [337]; The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147.

[27] Steele v The State of Western Australia [11].

[28] The State of Western Australia v Rayney [30].

[29] TVM v The State of Western Australia [29].

[30] The State of Western Australia v Rayney [34].

[31] TVM v The State of Western Australia [6].

[32] Arthurs v The State of Western Australia [91] - [93].

[33] The State of Western Australia v Tarau [2005] WASC 290.

[34] The State of Western Australia v Illey [2006] WASC 290.

[35] The State of Western Australia v Strabach [2012] WASC 97; The State of Western Australia v McDonald [2010] WASC 304; The State of Western Australia v Brown [No 2]; The State of Western Australia v Herbert [2017] WASC 101.

[36] Hone v The State of Western Australia [2007] WASCA 283 [18] (Miller JA, with Wheeler JA agreeing).

[37] Hone v The State of Western Australia [18].

[38] The State of Western Australia v Evans [2012] WASC 87.

[39] The State of Western Australia v Evans [9] - [24].

[40] The State of Western Australia v Evans [27].

[41] The State of Western Australia v Evans [27].

[42] The State of Western Australia v Evans [26].

[43] Report of Dr Adam Brett, psychiatrist, dated 28 January 2025, pages 18 - 19.

[44] Report of Dr Elizabeth Tate, psychiatrist, dated 18 September 2024, pages 21 - 22.