THE STATE OF WESTERN AUSTRALIA -v- THOMAS [2023] WASC 405 (26 October 2023)

1. The State's case is outlined in the 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 Declan Sean Thomas, then aged 31, was the son of the deceased Edward Charles Thomas, then aged 71. The deceased was a fragile man with a pre-existing medical condition. Between 7 pm and 9 pm on Sunday, 12 July 2020 the accused attended the home address of the deceased at Unit 15, 162 Mandurah Terrace, Mandurah.

The accused knocked on the door and was invited in by the deceased.

The deceased returned to a recliner chair where he had been sitting and sat down.

The accused then walked to the kitchen of the house and retrieved a large black metal frying pan.

While the deceased was sitting on the recliner chair the accused walked up behind the chair and struck the deceased in the back of the head with force with the frying pan. When he did that the deceased uttered the words 'Oh, Dec'.

The accused struck the deceased two or three times with a metal frying pan.

After he struck the deceased with a metal frying pan the accused then put the deceased in what he described to investigators attached to the Homicide Squad as a 'slip hold' and struggled with the deceased on the floor.

When later interviewed about the incident on 13 July 2021, the accused advised the Homicide Squad officers who interviewed him that 'I took out his eyes. It wasn't hard and it wasn't something where I was mucking around, it was just fast as I wanted to take out his eyesight, and I ended with a knife'.

Whilst struggling or wrestling with the deceased on the floor the accused used his thumbs to gouge the deceased man's eyeballs from his eye sockets.

The accused then retrieved a black handle serrated kitchen knife which he used to cut the deceased's throat while the deceased was lying on his back on the floor. The accused slashed the deceased's throat several times with the knife inflicting several cuts.

During the course of his interview with Homicide Squad officers, the accused stated that he 'Just cut his throat, yeah several times, several cuts'. The accused told the officers that after he did this he saw the deceased die.

After he had concluded attacking the deceased, the accused then walked to Mandurah Police Station and walked to the reception desk. The accused advised an Auxiliary Police Officer on duty that 'I've just killed my dad' the Auxiliary Officer could immediately smell alcohol on the accused's breath.

When the Auxiliary Police Officer clarified with the accused that 'You've just killed your dad?' the accused replied 'Yes'.

The Auxiliary Police Officer then asked the accused how he had done it and the accused replied, 'I've hit my dad with a frying pan and gouged his eyes out and slit his throat'.

When asked for his details the accused replied that his name was Declan Thomas date of birth 6 December 1988.

Police officers immediately attended the premises where they located the deceased laying face down in a pool of blood. Unsuccessful attempts were made to resuscitate the deceased and he was certified life extinct by paramedics from the St John Ambulance Service a short time later.

Both investigators attached to the Homicide Squad and forensic officers and investigators attended the premises. A dented metal frying pan was located on carpet near the deceased in the loungeroom of the premises. The frying pan was stained with blood.

A blood-stained black handled kitchen knife was located beside the deceased.

Two human eyeballs were located on the floor surface of the master bedroom and near the back door of the premises.

A toxicological analysis of blood of the accused disclosed that the accused had 0.00520 milligrams/litre of tetrahydrocannabinol in his blood and a blood alcohol reading of 0.011%.

The post-mortem examination conducted on the deceased on 15 July 2020 determined that the cause of death was neck and head injury in a man with atherosclerotic heart disease.

Post-mortem examination further showed that the deceased had sustained a sharp force injury to the neck with injury to the upper airway (larynx) and muscles to the front of the neck (throat muscles) as well as probable injury to the thyroid muscles. The post-mortem examination determined that there was evident bilateral traumatic enucleation of the deceased's eyes. There was also blunt force head injuries including facial lacerations, bruising, abrasions and nasal fracturing. Minor injuries were present to the limbs and back of the head.

The post-mortem examination of the deceased further noted that the deceased had hardening, thickening and narrowing of the vessels supplying the heart muscles (coronary artery atherosclerosis) with associated scarring of the heart muscle.

When interviewed by investigating officers the accused stated that he had been drinking, consuming alcohol earlier during the day being mixtures of soft drink and cans of bourbon and had also consumed tobacco and cannabis.

When interviewed by investigators attached to the Homicide Squad on Tuesday, 13 July 2021 the accused stated 'This is something else and it just took over me and I just did it. I couldn't take it anymore'. When asked to clarify what he couldn't take the accused stated 'I've never quite felt anything like it before. It's just been building up over and over and over the years'.

When asked whether when he left the house the accused knew what was going to happen the accused replied 'I don't know' the accused further replied 'no, I can't - those feelings are not something I can really put into words for you, you know what I mean'.

In his interview with the investigators the accused acknowledged that he had struck the deceased man his father, a 'pretty strong blow' in the back of the head with a frying pan he retrieved from the kitchen and that he had struck him twice or three times.

The accused further stated that his father was strong and he wanted to take away his sight and described how he did so using his thumbs. That accused then described how he retrieved the black serrated kitchen knife and cut the deceased man's throat 'several times, several cuts'.

The accused told the investigators who interviewed him that the deceased man grabbed his hand while lying on his back that was his last breath and that he saw him die.

When asked what he did after the deceased passed away, the accused said 'I picked up my bottle, left there, just closed the door, started walking to the Police Station. I had a few sips along the way, left the bottle on the ground and just kept walking, then just went to a major Police Station and yes. And that was it'.

(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.[3]
2. Neither the accused nor the State has the right to elect a trial by judge alone.[4] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[5]
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.[6] 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.[7]
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.[8] 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'.[9]
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.[10] 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.[11]
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.[12] 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.[13]
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.[14] However, as McKechnie J observed in TVM v The State of Western Australia,[15] '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'.[16] 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,[17] but there are differing views as to whether this is a relevant factor.[18] 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.[19]
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.[20] 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.[21]
12. There is not necessarily any time saved if an accused has a judge alone trial.[22] 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.[23]
14. The fact that a State case is based upon circumstantial evidence has also been considered to be a factor supporting a trial before a jury.[24] I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case in a given matter is based upon circumstantial evidence.[25]
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.[26] 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.[27]
16. In Steele v The State of Western Australia,[28] 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.[29]
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:[30]

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:[31]

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:[32]

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 Western Australia,[33] 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,[34] and The State of Western Australia v Iley.[35] 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.[36]
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.[37] Miller JA stated:[38]

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. There are numerous cases where an application for a judge alone trial has been granted on the basis that the issue at trial is whether the accused was suffering from a mental impairment at the time of the alleged offending.[39] 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.
2. In The State of Western Australia v Evans,[40] 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. 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. 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. 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.[41] 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. The submission of the accused is that the issue is of some complexity.
2. The application is supported by the affidavit of Ms Farley SC, sworn 4 October 2023, that attests that Mr Thomas 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. Ms Farley SC states that the issue at trial will be whether Mr Thomas was of unsound mind at the time of the commission of the physical events giving rise to the count of murder.[42]
3. Ms Farley SC deposes that the 'sole issue for this trial will be whether s 27 of the Criminal Code applies and accordingly the defence does not involve any substantive factual issue requiring the application on objective community standards'.[43] Ms Farley deposes that there is ongoing conferral with the State concerning the presentation of the State case.[44]
4. 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 makes 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 and tender exhibits by consent if 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.
5. At the hearing of the application, Ms Farley SC stated that it is envisaged that four witnesses will be called at trial. The proposed witness list is comprised of two forensic psychiatrists and two toxicologists. Ms Farley SC submitted that these proposed witnesses would provide evidence at trial that is technical on narrow issues concerning Mr Thomas' unsoundness of mind at the time of the alleged offending, and as a result, it is inappropriate in the circumstances to expect a jury to decide the issues that will be raised at trial.
6. In support of the application, the defence has obtained reports from Dr Brett, Consultant Forensic Psychiatrist, dated 24 June 2022, and Dr van Hattem, Consultant Forensic Psychiatrist, dated 28 July 2023. I have considered the two reports.
7. Dr Brett expresses the opinion that at the time of the alleged offending, Mr Thomas had a mental impairment, namely chronic paranoid schizophrenia.[45] Mr Thomas has suffered from psychosis for at least nine years prior to the alleged offending. Further, Dr Brett expressed the opinion that Mr Thomas was deprived of his capacity to control his actions and that he was also deprived of the capacity to know he ought not do the acts which comprise the count on the indictment.[46]
8. Dr van Hattem expressed the opinion that Mr Thomas, at the time of the alleged offending, was suffering from a mental impairment, namely schizophrenia, and that he was deprived of the capacity to understand that he ought not do the offending acts.[47]
9. I also note that there is another possible issue concerning self‑intoxication that may arise at trial. It is not necessary to consider that issue in deciding this application.

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 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. 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.

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

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

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

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

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

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

[9] LFG v The State of Western Australia, [320].

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

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

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

[13] LFG v The State of Western Australia, [324].

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

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

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

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

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

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

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

[21] The State of Western Australia v Rayney, [37].

[22] 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].

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

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

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

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

[27] 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.

[28] Steele v The State of Western Australia, [11].

[29] The State of Western Australia v Rayney, [30].

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

[31] The State of Western Australia v Rayney, [34].

[32] TVM v The State of Western Australia, [6].

[33] Arthurs v State of Western Australia, [59].

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

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

[36] 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.

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

[38] Hone v The State of Western Australia.

[39] See: The State of Western Australia v Zahidi [2023] WASC 359; The State of Western Australia v Pal [2023] WASC 157; The State of Western Australia v Dent [2023] WASC 69; The State of Western Australia v Davidson [2022] WASC 70; The State of Western Australia v Haast [2020] WASC 161; The State of Western Australia v Daly [2019] WASC 386; The State of Western Australia v Shayler [2019] WASC 86; The State of Western Australia v Ugle [2018] WASC 337; Marotta v The State of Western Australia [2018] WASC 141; The State of Western Australia v Herbert [2017] WASC 101; The State of Western Australia v Siddique [No 2] [2016] WASC 358; The State of Western Australia v Lang [No 2] [2016] WASC 206; The State of Western Australia v Stefanski [2015] WASC 371.

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

[41] The State of Western Australia v Evans.

[42] Affidavit of Ms Farley SC sworn 4 October 2023, [8].

[43] Affidavit of Ms Farley SC sworn 4 October 2023, [8].

[44] Affidavit of Ms Farley SC sworn 4 October 2023, [9].

[45] Report of Dr Brett dated 24 June 2022, page 14.

[46] Report of Dr Brett dated 24 June 2022, page 15.

[47] Report of Dr van Hattem dated 28 July 2023, page 12.