Marotta v The State of Western Australia - [2018] WASC 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   MAROTTA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 141
CORAM:   MCGRATH J
HEARD:   7 MAY 2018
DELIVERED          :   8 MAY 2018
FILE NO/S:   INS 429 of 2017
BETWEEN:   VINCENZO CARLO MAROTTA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal procedure - Application for trial by judge alone - Charge of wilful murder - Unsoundness of mind - Section 27 Criminal Code (WA) - Expert psychiatric evidence - Whether objective community standards required in circumstances - Turns on own facts

Legislation:

Criminal Code (WA), s 27, s 278, s 282
Criminal Procedure Act 2004 (WA), s 118
Criminal Procedure Rules 2005 (WA)
Evidence Act 1906 (WA)

Result:

Application for trial by judge alone granted

Category: B

Representation:

Counsel:

Applicant	:	Ms K A Shepherd
Respondent	:	Mr P M Usher

Solicitors:

Applicant	:	Karen Shepherd
Respondent	:	Director of Public Prosecutions

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
Hone v The State of Western Australia [2007] WASCA 283
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 Evans [2012] WASC 87
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Illey [2006] WASC 290
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v McDonald [2010] WASC 304
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Strabach [2012] WASC 97
The State of Western Australia v Tarau [2005] WASC 290
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 applicant, Mr Marotta, has been indicted on one count that on 23 November 1989 he wilfully murdered Van Phan Ngyuen contrary to s 278 and s 282 of the Criminal Code (WA).
Mr Marotta has pleaded not guilty to the count and will appear for trial commencing on 22 October 2018.
Mr Marotta applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), for his trial to be heard by a judge alone without a jury.
The basis for the application is that it is in the interest of justice to grant the order for a judge alone trial, given that the single issue for determination at the trial will be whether Mr Marotta was of unsound mind at the time of the offending pursuant to s 27 of the Criminal Code. For the following reasons, I have determined that it is in the interests of justice that Mr Marotta be tried by judge alone and therefore, I exercise my discretion to so order.
In my reasons, I will consider the following:
(a)The nature of the State's case;
(b)Legal principles relevant to an application under s 118 of the CPA;
(c)The basis for the application; and
(d)An evaluation of the interests of justice in the application.

The State's case

The State's case is outlined in the statement of material facts that forms part of the brief of evidence that has been filed. At approximately 8.40 pm on Thursday, 23 November 1989 the victim was walking home along a walkway adjacent to the east bound train line between Wellington Street and Moore Street, East Perth. As the victim was walking, Mr Marotta approached him from behind whilst holding a knife. At that time Mr Marotta began to stab the victim a number of times to the head and body in an unprovoked attack.
After a minute of attacking the victim, Mr Marotta ran from the walkway to a nearby car park where he washed his hands of the blood and threw the knife into a council bin.
Within two to three minutes of the attack, three witnesses entered the walkway and located the victim who by that time was deceased.
As a result of the attack, the victim received 26 penetrating stab wounds to the head, mouth, upper chest and left arm. Further, the victim received a number of defensive type injuries to his arms and left hand. A post‑mortem examination determined that he had been stabbed eight times to the head and eight times to the chest with a number of the injuries piercing the heart.
In 1989, the WA police undertook a homicide investigation but no person was identified as being responsible for the attack. In 2016, Special Crime Squad investigators conducted a cold case homicide investigation and, as a result using forensic advances, Mr Marotta was identified as a suspect for the offence.
On 2 November 2016, Mr Marotta was arrested at Graylands Hospital and charged with wilful murder.
As a result, Mr Marotta was taken to the Special Crime Squad office of the WA police where he participated in two electronic records of interview and made full admissions to committing the crime in 1989.

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 a judge alone will not be enlivened unless the court is affirmatively satisfied that it is 'in the interests of justice' to do so.[1] 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.[2]
[1] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [318].
[2] 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 both the interests of the accused and the public interest.[3] 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.[4] The fundamental issue with which s 118 of the CPA is concerned is that the accused receives a fair trial according to law and that therefore it is 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.[5] 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.[6]
[3] LFG v The State of Western Australia [319] - [320].
[4] LFG v The State of Western Australia [320].
[5] LFG v The State of Western Australia [321].
[6] LFG v The State of Western Australia [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.[7] 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 concept of what might be in the interests of justice.
[7] 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.[8] 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.[9] That is because the interests of justice are not coterminous with the interests of an accused.
[8] Arthurs v The State of Western Australia [2007] WASC 182 [79], [80]; The State of Western Australia v Rayney [26].
[9] 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,[10] but there are differing views as to whether this is a relevant factor.[11]
[10] Arthurs v The State of Western Australia [73] - [76].
[11] 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 consideration of what is in the interests of justice is the length of the trial.[12] There is not necessarily any time saved if an accused has a judge alone trial.[13] However, a trial of extreme length may create problems for jurors who are required to forgo normal life commitments or upon whom such trials may place a physical, mental or emotional burden which is too great.[14] 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.[15]
[12] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[13] The State of Western Australia v Rayney [37]; The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [29].
[14] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[15] 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.[16] I agree with the alternative view that there is no reason why either mode of trial is preferable for the reason that the State's case is based upon circumstantial evidence.[17]
[16] The State of Western Australia v Martinez [36].
[17] 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.[18] 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.[19]
[18] LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[19] 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.
An overarching consideration in deciding 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.[20] 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:[21]
[I]t 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.
[20] The State of Western Australia v Rayney [30].
[21] TVM v The State of Western Australia [29].
In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre‑trial publicity.[22]
[22] The State of Western Australia v Rayney [34].
Accordingly, the nature and extent of the pre‑trial publicity must necessarily be of such a nature that, despite a detailed warning to the empanelled jury both at the commencement and the judge's summation of the trial, the risk of prejudice or pre-judgment could not be ameliorated.[23]
[23] LFG v The State of Western Australia; The State of Western Australia v Martinez [31] ‑ [34]; The State of Western Australia v Rayney [92].
Where the issue for determination at trial is the mental capacity of the accused under s 27 of the Criminal Code there has been support for judge alone trials. In TVM v The State of Western Australia McKechnie J observed that:[24]
Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trail 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.
[24] TVM v The State of Western Australia [6].
In Arthurs v Western Australia[25] 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[26] and The State of Western Australia v Iley.[27] 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 s27 of the Criminal Code.[28]
[25] Arthurs v State of Western Australia.
[26] The State of Western Australia v Tarau [2005] WASC 290.
[27] The State of Western Australia v Illey [2006] WASC 290.
[28] 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.
The Court of Appeal accepted in Hone v The State of Western Australia[29] that it may be appropriate to order a trial by judge alone in a murder case involving an insanity defence. Miller JA stated:[30]
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.
[29] Hone v The State of Western Australia [2007] WASCA 283 [18] (Miller JA, with Wheeler JA agreeing).
[30] Hone v The State of Western Australia.
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,[31] 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[32] there were further factual disputes involving a claim of the defence of provocation. That defence does involve an assessment of community standards.
[31] The State of Western Australia v Evans [2012] WASC 87.
[32] The State of Western Australia v Evans.
The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[33] In this case both the State and the accused have submitted that the trial should be conducted before a judge alone.
[33] The State of Western Australia v Mack [2012] WASC 127 [43].

The basis for the application

The basis of this application for a trial by judge alone is that the single issue for determination at trial 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 lead at trial will be more properly considered by a judge sitting alone without a jury.
The s 118 application is supported by an affidavit of Mr Marotta's counsel, Ms Karen Shepherd, sworn on 4 April 2018. Ms Shepherd attests that Mr Marotta intends to plead not guilty to the count on the indictment on the basis of unsoundness of mind under s 27 of the Criminal Code. Ms Shepherd states that the issue at trial will be whether Mr Marotta was of unsound mind at the time of the commission of the physical event giving rise to the charge of wilful murder. In oral submissions, Ms Shepherd raised a further possible issue, depending upon the trial judge's findings, being whether Mr Marotta was capable of forming the specific intention of wilful murder.
Ms Shepherd stated in her affidavit that expert evidence in the form of psychiatric evidence will be central to the resolution of the issue of the mental capacity of Mr Marotta. Both the State and the defence have obtained psychiatric reports regarding the state of mind of Mr Marotta at the relevant time. Ms Shepherd states that both reports conclude that Mr Marotta meets the criteria under s 27 of the Criminal Code.
The State has obtained a report from Dr Patchett, Consultant Forensic Psychiatrist, dated 20 October 2018. The defence has obtained a report from Dr Pascu, Consultant Forensic Psychiatrist, dated 3 May 2017. I have considered both reports. It appears that both psychiatrists have made a diagnosis that is supportive of a possible finding that Mr Marotta had at the time of the alleged offending a mental impairment as defined in s 27 of the Criminal Code.

The interests of justice

The State consents to the application by the accused. That is not determinative of the application.
It may be concluded, from the submissions of counsel, that the trial will involve admissions as to the material facts, with the issue for determination being the accused's mental capacity at the time of the alleged offence. That determination will rely, to a significant degree, on the evidence of the expert witnesses. I consider that the expert evidence will be more properly considered by a judge sitting alone without a jury.

There is no issue to be resolved at trial that will require a jury to consider objective community standards.
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.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH
8 MAY 2018