Lang v The State Of Western Australia
[2016] WASC 76
•8 MARCH 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LANG -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 76
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 8 MARCH 2016
FILE NO/S: INS 180 of 2015
BETWEEN: GABRIEL GAUDI LANG
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for trial by judge alone - Whether interests of justice require a trial by judge alone - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 118
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: No appearance
Respondent: No appearance
Solicitors:
Applicant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chiha v The State of Western Australia [No 2] [2015] WASC 147
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
LFG v The State of Western Australia [2015] WASCA 88
The State of Western Australia v Brown [No 2] [2013] WASC 280
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
HALL J: The accused is charged that on 15 December 2014 he murdered his mother, Joan Marie Hendry. He is also charged that on the same date he attempted to unlawfully kill his sister, Rosanna Lang. He has entered pleas of not guilty to those charges. A trial has been set down for three days commencing on 27 June 2016.
An application has been filed by the accused seeking an order that the trial be by judge alone. That application is made pursuant to s 118 of the Criminal Procedure Act 2004 (WA). Any such application must be made before the identity of the trial judge is known to the parties. In this case the identity of the trial judge is not yet known.
The only issue at trial will be whether the accused was of sound mind at the time that he did the acts which caused the death of his mother and injury to his sister: s 27 of the Criminal Code (WA). The factual circumstances will not be in dispute and it is for this reason that the trial is expected to only last three days.
In support of the application a solicitor for the accused, Mr Gerald Yin, has sworn an affidavit dated 8 February 2016. That affidavit confirms that the accused's defence to the charge is insanity pursuant to s 27 of the Criminal Code. The affidavit annexes psychiatric reports from Dr Victoria Pascu and Dr Adam Brett and an email from the treating psychiatrist of the accused, Dr Anca Corbu.
The application is not opposed by the State.
Relevant principles
Section 118 of the Criminal Procedure Act provides as follows:
Trial by judge alone without a jury may be ordered
(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.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
The terms of s 118 were recently considered by the Court of Appeal in LFG v The State of Western Australia [2015] WASCA 88. At [318] to [325] Buss JA (with whom Mazza JA agreed) said:
Although s 118(4) confers a power on the court to make an order that an accused, who is committed on a charge to a superior court or indicted in a superior court on a charge, be tried by a judge alone, the court may only make that order 'if', relevantly, it considers it is 'in the interests of justice' to do so. In other words, the court may not make an order that the trial of the charge be by a judge alone unless the court considers, relevantly, that it is in the interests of justice to do so. Accordingly, the court's power to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so.
The phrase 'in the interests of justice' has a broad connotation. It is not defined in s 118 or elsewhere in the Criminal Procedure Act. The phrase takes its meaning in s 118 from the context in which it is used.
The concept of 'in the interests of justice', in s 118, includes not only the interests of the accused but also the public interest. 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.
It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. This is a fundamental (but not, of course, the only) issue with which s 118 is concerned. It will be 'in the interests of justice', within s 118(4), to order a trial by a judge alone if that is necessary to ensure the accused receives a fair trial according to law. That will be necessary if there is 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 by or before a jury. See Coates v The State of Western Australia [2009] WASCA 142 [104] (Buss JA, Martin CJ agreeing).
It is apparent, at least from s 118(5), that the legitimate interests of jurors is an aspect of the public interest within the concept of 'in the interests of justice' in s 118.
It is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is 'in the interests of justice' to order that there be a trial by a judge alone.
The phrase 'in the interests of justice', in s 118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under s 118(1). They will vary from case to case and must be determined on a case-by-case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances.
In my opinion, on a proper construction of s 118, in the context of the Criminal Procedure Act as a whole, the stipulation in s 118(4) that the court may make an order that the trial of the charge be by a judge alone if (and only if) the court considers it is in the interests of justice to do so, requires that:
(a)a process of evaluation be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone; and
(b)the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury.
At [337] Buss JA referred to some of the circumstances in which an order for a trial by judge alone may be justified:
It may be 'in the interests of justice', within s 118(4), to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:
(a)pre-trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside (The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);
(b)the nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance (Bell v The State of Western Australia[No 2] [2014] WASC 260); and
(c)the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact (The State of Western Australia v Brown[No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147).
See also, for example, the facts in Arthurs v The State of Western Australia [2007] WASC 182 and Schmidt v The State of Western Australia [No 3] [2014] WASC 156.
The third of the categories referred to by Buss JA is relevant in this case. As I have earlier noted the only issue at trial will be whether the accused was of sound mind at the time of the alleged offences. Trials where the mental capacity of an accused is in question, especially where there is little dispute as to the facts, are often the subject of trial by judge alone: TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183. See also Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 and The State of Western Australia v Brown [No 2] [2013] WASC 280 and Chiha v The State of Western Australia [No 2] [2015] WASC 147.
The prosecution case
The prosecution case is that on Monday, 15 December 2014 the accused and his mother attended at Fremantle Hospital due to concerns about his mental health. They arrived at about 8.11 pm and left at approximately 11.30 pm without receiving medical advice. They then returned home. The accused's sister, Rosanna Lang, and his mother's partner, Bruce John Abbott, were also at home. Mr Abbott was asleep in the master bedroom. The accused, his mother and sister sat around the kitchen table to discuss the day and play a game prior to going to bed.
The accused obtained a knife from a knife stand and an apple before sitting down at the dining table to cut an apple and share pieces of it with his mother and sister. He then did the same thing with another piece of fruit. He told his mother and sister that he loved them and grabbed their hands and kissed them. His mother told him that everything would be okay. He then got up from the table, walked to the back of his mother's chair and wrapped his arms around her. The hugging continued for about 20 seconds before the accused moved his hands up towards his mother's neck region and cut her throat with the knife that he used to cut the fruit. His mother got up from the chair and walked towards her bedroom before falling to the ground.
The accused then walked towards his sister still holding the knife in his right hand. His sister grabbed the knife attempting to push it away. She tried to kick him and fell to the ground screaming, with the accused on her back. She placed her arms around her neck in an attempt to protect herself. The accused pushed the knife blade against his sister's neck causing a laceration that later required surgery.
Mr Abbott awoke and ran from the bedroom screaming at the accused to stop. He pulled the accused away from his sister and took the knife from him. Mr Abbott sustained serious injuries to his hands during the struggle. At some point the accused grabbed another knife and cut his own throat before walking out of the front door. Mr Abbott and Ms Lang attempted first aid on Ms Hendry but she was pronounced deceased when the ambulance arrived soon after.
After Mr Lang's arrest he was treated as an involuntary patient at Fremantle Hospital and started on treatment with anti‑psychotic medication. Following a bedside hearing he was transferred to the Frankland Centre on a hospital order on 21 December 2014. On admission to the Frankland Centre the accused was assessed as suffering a psychotic disorder. He has continued to be treated since that time with a combination of anti‑psychotic and mood stabilising medications.
Psychiatric reports
In Dr Pascu's report she states that the accused has likely been developing a serious mental illness, namely schizophrenia, over approximately the last three years. Dr Pascu refers to a number of factors that may have made the accused vulnerable to the development of a mental illness, including the emotional impact of a serious assault at the age of 16. She is of the view that the accused's underlying, undiagnosed and untreated acute psychotic symptoms contributed to his impaired judgment, capacity to control his actions and capacity to understand the consequence of his actions. Although there is a reported history of cannabis use, Dr Pascu does not consider that this was a significant factor in causing the alleged offences. Dr Pascu concludes that the accused fulfils the criteria for a mental impairment under s 27 of the Criminal Code because he did not have the capacity to know that he ought not to do the acts and did not have the capacity to control his actions at the relevant time. Dr Pascu also states that, following treatment, the accused is now fit to stand trial, though he would need support to be able to cope with a prolonged trial.
In Dr Brett's report he states that he believes the accused was suffering from a mental impairment at the time of the alleged offences. He believes that the accused had an episode of psychosis in the context of schizophrenia. Like Dr Pascu, Dr Brett is of the view that the accused had an impaired capacity to control his actions because he was in an acute psychotic episode. He is also of the view that the accused was deprived of the capacity to know that he ought not to act in the way that he did. He was in such a state of psychosis that he believed his actions were morally right. Dr Brett does not believe that cannabis use had a significant impact on the behaviour of the accused. Like Dr Pascu, Dr Brett is of the view that the accused meets the requirements of s 27 of the Criminal Code.
An email from the accused's treating doctor, Dr Anca Corbu, dated 11 November 2015 states that, as a result of treatment, the accused is fit to plead and stand trial. However, Dr Corbu states that the accused could easily become overwhelmed and distressed if he were to face trial by jury. Dr Corbu states that in such an event his thinking would become disorganised. There is a high likelihood that this would be detrimental to his mental state and could cause a relapse in his mental health.
Conclusion
The principal issue in this case will be whether the accused was of sound mind at the relevant time. This issue will require careful consideration of detailed psychiatric evidence. Trial judges are accustomed to dealing with such expert evidence. On the other hand a jury may have difficulty in properly understanding intricate expert evidence and applying it to difficult legal principles in the context of violence that jurors would be likely to find shocking. It is also relevant to take into account that the evidence indicates that the accused would have difficulty coping with a jury trial. A jury trial would likely be longer, require more witnesses to give oral evidence and therefore involve increased stress on the accused. It would not be in the interests of justice for a trial to be aborted because the accused was unable to cope and had a relapse of his mental illness. In these circumstances I am satisfied that it is in the interests of justice to order that the trial of the accused be by judge alone without a jury.
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