Fawcett v The State of Western Australia - [2021] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FAWCETT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 202
CORAM:   MCGRATH J
HEARD:   23 JUNE 2021
DELIVERED          :   23 JUNE 2021
FILE NO/S:   INS 67 of 2020
BETWEEN:   LUKE DAVID FAWCETT
Accused
AND
THE STATE OF WESTERN AUSTRALIA
Prosecution

Catchwords:

Criminal law and procedure - Accused's application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Whether interests of justice require a trial by judge alone - Prejudicial evidentiary material - Whether directions likely to be effective

Legislation:

Criminal Code 1913 (WA), s 279
Criminal Procedure Act 2004 (WA), s 118

Result:

Application for trial by judge alone dismissed

Category: B

Representation:

Counsel:

Accused	:	Mr S D Freitag SC
Prosecution	:	Mr J C Whalley SC

Solicitors:

Accused	:	D G Price & Co
Prosecution	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Arthurs v The State of Western Australia [2007] WASC 182
Bell v The State of Western Australia [No 2] [2014] WASC 260
Chiha v The State of Western Australia [No 2] [2015] WASC 147
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Wark [2017] WASC 154
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

MCGRATH J:

The accused is charged with two counts of murder contrary to s 279 of the Criminal Code (WA).
The accused has pleaded not guilty to the two counts and will appear for trial between 6 September 2021 and 24 September 2021.
The accused applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), that his trial be by a judge alone.[1]
[1] Application for judge alone trial dated 3 June 2021.
The gravamen of the application is that it is in the interests of justice to grant the order for a judge alone trial given the confronting evidence that the State proposes to rely upon at trial. The accused particularises the confronting evidence as comprising a video located on the accused's mobile phone dated 29 March 2020, a handwritten list titled 'Equipment', which lists a number of items, and the photographs and the electronic recording of the crime scene and the forensic pathologist evidence concerning the nature and extent of the injuries inflicted on the deceased persons.[2] The State opposes the application.
[2] Affidavit of Mr Freitag SC sworn 3 June 2021 [14].
For the following reasons, I am not satisfied that it is in the interests of justice to order a trial by judge alone. Therefore, the application is dismissed.
In my reasons, I will consider the following matters:
(1)The nature of the State's case;
(2)The legal principles relevant to an application under s 118 of the CPA; and
(3)The basis for the application and assessment of the application.

The State's case

The State's case is outlined in an amended statement of material facts:[3]
[3] Amended Statement of Material Facts, State's Brief of Evidence.
1.At the time of her death, the victim Maree Patricia COLLINS (COLLINS) was 66 years of age and of medium build.
2.At the time of his death, the victim Wayne Douglas JOHNSON (JOHNSON) was 62 years of age, of medium build and was the younger brother of COLLINS.
3.COLLINS lived alone at unit 35, 45 Leonard Street Victoria Park.
4.Her residence was a double unit (unit 34 and 35 combined) on the top (eighth) floor of the unit complex at 45 Leonard Street.
5.At the time of the alleged offence the accused was 27 years old, 180cm tall with an athletic build.
6.The accused lived by himself at unit 33, 45 Leonard Street Victoria Park.
7.This Unit was also on the 8th floor of the unit complex and was next door to COLLINS' unit.
8.The accused and COLLINS were acquaintances and appeared to share a neighbourly relationship. The accused had helped COLLINS to move furniture on a previous occasion and had visited her apartment to get printing done on COLLINS' home printer.
9.On Monday 4 April 2020, the accused purchased a Saxon brand long-handled shovel from Bunnings Hardware in East Victoria Park.
10.On Sunday 5 April 2020, the accused drove to Kirup in Western Australia to seek out a location for a makeshift grave site. Kirup is about 2½ hours' drive south of Perth.
11.The accused partially dug a hole in bush-land in the Mullalyup State Forest, before leaving the Saxon shovel at the location along with a bag.
12.On Monday 6 April 2020, the accused attended Bunnings Belmont and purchased a blue tarpaulin, yellow rope and 'gaffa' tape.
13.Sometime after 1:00pm on Saturday 11 April 2020, the accused attended unit 35 with a large Bowie knife and a 'stun gun' (taser), and gained access to the unit.
14.Whilst in the unit the accused stabbed COLLINS multiple times to her head and neck with a sharp weapon.
15.COLLINS also suffered apparent defensive wounds during the attack.
16.COLLINS died of her injuries at the scene.
17.The accused covered COLLINS in a number of towels before wrapping her body in a blue tarpaulin.
18.The accused then left the address and at 6:43pm he purchased another tarpaulin at Bunnings Belmont.
19.The accused returned to the unit where he continued to wrap COLLINS' body up in the newly purchased blue tarpaulin, which he secured with the yellow rope.
20.The accused remained at the unit, drank a number of beers, and made attempts to clean up some of the blood.
21.At approximately 11:40am the following day, Sunday 12 April 2020, Wayne JOHNSON received a phone call from a family member who had concerns for COLLINS, as she was not answering her phone.
22.At 12:15pm JOHNSON sent a reply text message stating he was on his way over to the unit to check on COLLINS.
23.JOHNSON entered unit 35 to discover a bloodied scene, finding his sister deceased on the floor, wrapped up in the tarpaulins.
24.JOHNSON surprised/disturbed the accused, and a violent struggle ensued between the two.
25.The accused stabbed JOHNSON multiple times with a sharp weapon to his groin, thighs, stomach, chest, neck and face. JOHNSON also suffered defensive wounds during the attack.
26.JOHNSON died of his injuries at the scene.
27.At about 2:30pm the accused was observed outside the unit complex acting in an erratic and agitated manner.
28.The accused was collected from the units by his grandmother and taken to Royal Perth Hospital where he presented with a number of injuries, which included lacerations to his hand, a dislocated shoulder and a fractured humerus.
29.He told medical staff that he had fallen off a ladder whilst holding a knife.
30.At 4:17pm family members attended COLLINS' unit. They found the body of COLLINS at the entry way of the unit wrapped up in the tarpaulins.
31.Police attended the scene along with St John Ambulance where both victims were located and declared life extinct.
32.At 9:04am on Monday 13 April 2020, the accused was arrested at Royal Perth Hospital.
33.On Friday 17 April 2020, the accused participated in police interview and declined to answer all questions put to him.
34. The accused was subsequently charged and his bail refused.
35.A post mortem examination of the COLLINS revealed the following relevant injuries:
A 12 mm laceration to the scalp; A 33mm curvilinear wound to the top of the scalp; A 43mm incised wound at the top of the scalp; A 42mm incised wound to the left side of the scalp; A 10mm laceration to the right side of the scalp; A 46 mm curvilinear wound at the right side of the scalp; An 88mm incised wound at the front of the forehead; A 23mm laceration at the right side of the forehead; A 12mm incised wound at the right side of the face; A sharp force injury at the right cheek about 30mm in length; A sharp force injury of 20mm x 16mm to the top lip; An incised wound to the neck about 260mm long which transected multiple muscles in the neck and the left internal jugular vein; A sharp force penetrating injury to the front of the neck about 24mm long with a wound track through subcutaneous fat and extending through the full thickness of musculature; and Multiple sharp force incised wounds to the right and left arms.
36.The summary of findings was:
37.'Multiple injuries, predominantly sharp force, to the head, neck, trunk and limbs' and cause of death was recorded as 'multiple injuries.'
38.A post mortem examination of JOHNSON revealed the follow relevant injuries:
A stab wound to the right eyelid and eyebrow; A stab wound to the bridge of the nose; A stab wound to the right side of the chin; A stab wound to the left side of the neck; Another stab wound to the left side of the neck; A stab wound to the left side of the chest; Three (3) stab wounds to the right side of the chest; A stab wound to the left side of the lower chest; Four (4) stab wounds to the right side of the abdomen; Four (4) stab wounds to the left side of the abdomen; The stab wounds to the abdomen resulted in multiple penetrations and perforations of the small bowel, perforation of the abdominal aorta and penetration of the left kidney; A penetrating stab wound to the right upper arm; Multiple incised wounds to the left arm and hand; A stab wound to the right leg; Two (2) stab wounds to the right thigh; A stab wound to the left leg: A stab wound to the left thigh; and A stab wound to the back of the torso.
39.The summary of findings was 'Multiple stab wounds to head, neck, trunk and limbs with vascular, bowel and kidney injuries and incised wounds to the hands' and the cause of death was 'multiple penetrating sharp force injuries (stab wounds.)'
The accused's counsel submitted that the two counts are likely to be defended on the basis that:[4]
(1)The accused was not the offender in the killing of Ms Collins; and
(2)The accused is not guilty of the killing of Mr Johnson on the basis of self-defence.
[4] Accused’s written submissions filed 23 June 2021 [11].

Relevant legal principles

Section 118 of the CPA relevantly provides:
(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.
…
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. 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 whether to make the order for trial by judge alone.[6]
[5] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [318].
[6] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21].
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] The fundamental issue with which s 118 of the CPA is concerned is that the accused receive 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]
[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].
The concept of the interests of justice, therefore, is one that should not be narrowly defined. 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 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.
[11] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [17].
A number of factors have been identified and considered in other cases determining an application pursuant to s 118 of the CPA. The subjective views of the accused as to whether a judge alone trial is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[12] However, as McKechnie J observed in TVM v The State of Western Australia, to pay undue account to the subjective views of an accused person may have the result that the decision is made in the interests of the accused and not the interests of justice.[13] That is because the interests of justice are not coterminous with the interests of an accused.
[12] Arthurs v The State of Western Australia [2007] WASC 182 [79], [80]; Rayney v The State of Western Australia [26].
[13] TVM v The State of Western Australia [30] - [32].
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,[14] but there are differing views as to whether this is a relevant factor.[15]
[14] Arthurs v The State of Western Australia [73] - [76].
[15] TVM v The State of Western Australia [32]; The State of Western Australia v Wark [2017] WASC 154 [108].
Another factor that may be relevant to the interests of justice is the length of the trial.[16] There is not necessarily any saving in time if an accused has a judge alone trial.[17] However, 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 a physical, mental or emotional burden which is too great.[18] 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.[19]
[16] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[17] Rayney v The State of Western Australia [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[18] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[19] The State of Western Australia v Rayney [37].
The fact that the State's case is based upon circumstantial evidence has been considered to be a factor supporting a trial before a jury.[20] I agree with the alternative view that there is no reason why either mode of trial is preferable for the reason that the State case is based upon circumstantial evidence.[21]
[20] The State of Western Australia v Martinez [36].
[21] Arthurs v The State of Western Australia [61] - [67]; TVM v The State of Western Australia [15].
The nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that the jury may be unable to properly consider its relevance and significance.[22] 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.[23]
[22] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[23] 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.
The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[24]
[24] The State of Western Australia v Mack [2012] WASC 127 [43].
An 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.[25] Therefore, pre-trial publicity is a significant factor. There is no contention that there has been or will be prejudicial pre-trial publicity in this matter.
[25] The State of Western Australia v Rayney [30].

The basis for the application and assessment of the application

The gravamen of the application is that the extent and nature of the evidence that the State proposes to lead at trial, whilst admissible, is so confronting for a member of the public that the accused would be unable to receive a fair trial. That is, the nature of the proposed evidence is likely to invoke in the jury, or at least some of its members, strong emotions that would interfere with, or prevent, a proper assessment of the evidence.
The application is supported by an affidavit sworn by Mr Freitag SC, counsel for the accused and a written outline of submissions.[26] The accused contends that there are factors that favour the exercise of my discretion to order a trial by judge alone. Those factors include the fact that the DNA evidence will be detailed and could be considered complex. I find that the forensic evidence to be presented in this case is not of the level of complexity that a properly directed jury would not be able to satisfactory understand. Further, the length of the trial, being three weeks will not be burdensome on the jury. The issues that require resolution in the trial are issues that a jury will be able to resolve. This application turns on whether the prejudicial material is so confronting that it would invoke such emotions that a jury would be unable to make a proper assessment of the evidence and thereby determine the verdict according to law.
[26] Accused's written outline of submissions filed 23 June 2021 [7]; Affidavit of Mr Freitag sworn 3 June 2021.
The contention of the accused is that a judge alone trial is an effective safeguard against the unfairness to the accused arising from the confronting and horrific nature of part of the evidence the State proposes to rely upon at trial.

The black suit video is approximately four minutes in duration. The State's contention is that the accused is depicted in the video wearing a tight black body suit, which covers his entire body and face. The accused is holding a taser and a large knife whilst uttering threats to severely hurt or kill an unnamed imaginary person if that person does not provide him with the details of each of his/her bank accounts and bank cards.
During the black suit video recording the accused activates a taser several times and holds a large knife throughout the video. Approximately two and a half minutes into the duration of the video, the following words are uttered: 'Now, listen, buddy, we can do this the easy way or the hard way. The easy way will be done very, very soon. You will lose a very minor amount of money and you will live. If we do this the hard way you will be severely hurt and if you keep pushing me eventually I will kill you. Now, are you going to give me your bank details of each of your cards or'. The person then activates a taser saying 'It's going to get a bit painful'. The taser is clearly activated and the blade of the knife is silhouetted. The accused then takes the gloves off, takes the hood off, unzips the suit, and puts a T-shirt on, then the video ceases.
The State accepts that, whilst the black suit video is undoubtedly confronting, there is nothing inherently graphic or horrific about the video. In particular, the State contends that there is nothing about the video that suggests a jury will not be able to assess the video objectively and determine what weight, if any, is to be given to the accused's recording.[27] I accept that the black suit video is confronting and disconcerting. However, I accept the State's assessment of the black suit video. The jury will be directed concerning the evidence and in particular assessing evidence dispassionately and without prejudice.
[27] State's written outline of submissions dated 7 June 2021 [19] - [21].
The 'Equipment' list was located on 16 April 2020 in an exercise book found in the accused's Kia Sorrento car. The entries in the 'Equipment' list included the following:
Black pants (moveable); Black shirt (long sleeve); Quiet shoes (sneakers); Oversize beanie (facial); Pepper spray; 2 x drums (metal and plastic); Box of latex gloves; Knife; Pepper spray; Optional face mask; Cable ties; Rope; Duct tape; Model gun (safety tag removed); Optional - black onesie; Lock pick; Baseball bat/one handed striking weapon
Interrogation
1. Pummelling.
2. Pepper spray to eyes to point of blindness.
The State contends that there is nothing innately graphic or disturbing about the 'Equipment' list. I agree with the State's submission that it is 'a mundane list of items the only discomforting feature of which is the parallels between it and items used to kill the deceased'.[28] However, the entries on the 'Equipment' list under the heading 'Interrogation', being the words 'pummelling' and 'pepper spray to eyes to point of blindness', is extremely confronting. A jury will be required to consider the evidence and determine what weight, if any, is to be given to the 'Equipment' list. A jury will be directed in respect of the use to which the list may be put by the State.
[28] State's written outline of submissions dated 7 June 2021 [23].
To the extent that the black suit video or the 'Equipment' list may evoke emotion in the jury, a direction to the jury will certainly sufficiently remove the risk that the evidence will interfere, or prevent a proper assessment, of the evidence.
In respect of the crime scene, the police investigation evidence and the post‑mortem evidence, the State accepts that the videos and photographs of the crime scene may be confronting to those not accustomed to viewing such scenes. However, the State submits that there is nothing exceptional about the crime scene in this particular case. I accept that submission. The very nature of a murder trial often means that graphic evidence concerning the circumstances of the killing, including photographs or a crime scene recording, is received in evidence. The sensitivity of jurors to such photographs can be too easily overstated.[29]
[29] R v Zammit [1999] NSWCCA 65 Wood CJ at CL [156].
I am mindful that the State will be required to establish a forensic purpose for showing the crime scene and in particular, any photographs that depict the deceased persons' bodies or a graphic area. In respect of the post-mortem examination, the State submitted that at trial the post‑mortem evidence would most likely be led in the form of diagrams rather than photographs. I accept that there is significant injuries to both deceased persons.
The manner in which the evidence is led will be subject to the scrutiny of the learned trial judge.
If the learned trial judge forms the view that the State proposes to lead photographs or recordings of the crime scene that are particularly confronting, then the learned trial judge will make an assessment of the forensic value of the confronting photographs and determine any objection to admissibility.
Further, appropriate directions will be given by the learned trial judge in respect of the jury assessing evidence dispassionately and without prejudice. Any concerns regarding the prejudice arising from the evidence of the crime scene or the post-mortem examination will be ameliorated by directions from the trial judge to the jury.
I have revisited the entire evidence that the accused contends will prejudicially evoke emotion and assessed the composite weight of that material. Having done so, I am not satisfied the evidence, to the extent that it is confronting, would interfere with or prevent the jury undertaking a proper assessment of the evidence.
Accordingly, I am not satisfied that it is in the interests of justice that the trial be heard before a judge alone. Therefore, the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
25 JUNE 2021