R v Bretherton

[2013] NSWSC 1036

Supreme Court

New South Wales

Medium Neutral Citation:	R v Robert Bretherton [2013] NSWSC 1036
Hearing dates:	2 August 2013
Decision date:	06 August 2013
Before:	Harrison J
Decision:	Application for a trial by judge order pursuant to s 132(1) Criminal Procedure Act 1986 is dismissed
Catchwords:	CRIMINAL LAW - application by accused for trial by judge alone - charge of murder - plea of guilty to manslaughter - single issue of diminished responsibility by reason of substantial impairment caused by an abnormality of mind - whether application of objective community standards - whether in the interests of justice to make trial by judge order
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Arthurs v State of Western Australia [2007] WASC 182 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 R v Majdalawi [2000] NSWCCA 240; (2000) 113 A Crim R 241 R v Trotter (1993) NSWLR 428
Category:	Procedural and other rulings
Parties:	Crown Robert Bretherton
Representation:	Solicitors: Director of Public Prosecutions (Crown) Purcell Lawyers (Accused) Counsel: P Barnett SC (Crown) S Corish (Accused)
File Number(s):	2011/367057
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The accused is due to stand trial commencing on 26 August 2013 in Newcastle on an indictment charging that on 16 November 2011 at Bellbird in the Sate of New South Wales he murdered Jodie Jurd. The accused has entered a plea of guilty to manslaughter but not guilty of murder. The Crown has not accepted that plea in satisfaction of the indictment. On 2 August 2013 the accused filed an application pursuant to s 132 of the Criminal Procedure Act 1986 for trial by judge alone. He relies upon an affidavit sworn on 1 August 2013 by his solicitor. The application is opposed.

1. Section132 is in the following relevant terms:

"132 Orders for trial by Judge alone

(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a 'trial by judge order').

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7)..."

1. It is convenient and efficient to observe that s 132(4) is the principal provision requiring consideration in the circumstances of the present application. Some attention is also given to s 132(5).

Background

1. The accused and the deceased had been in a relationship for approximately ten years. During that time they had separated and reconciled on a number of occasions. The most recent period of separation commenced in October 2010. In May 2011, they decided to try to resurrect their relationship.

1. At the time of the offence, the accused and the deceased were seeing a counsellor. The deceased was still residing at a property at Bellbird, which they jointly owned, while the accused was living at Telarah. The accused stayed regularly at the Bellbird address as the house was on the market and he was doing work around the property. The property was sold on 8 November 2011. Settlement was due on 13 December 2011.

1. There had been ongoing arguments between the deceased and the accused about a property settlement. They also jointly owned a house in Queensland. It had been proposed that the accused would keep the proceeds of the sale of the Queensland house and the deceased would keep the proceeds of the sale of the Bellbird house. However the accused was not content with that arrangement and wished to revisit it during the week preceding the offence.

1. The relationship was characterised by the accused's intense jealousy of the deceased's close relationship with her family. He sought to limit the frequency of her contact with them and did not like her talking to members of her family on the phone. It is alleged that the accused was physically violent to the deceased. She complained to several witnesses that the accused had hit her, kicked her and slapped her, and that it was worse when he was drinking.

1. At about 7:35pm on 16 November 2011, Rosalie Keller, who lived next door to the deceased, was outside her house having just arrived home from work. She heard loud voices of the accused and the deceased and loud banging. She described the deceased as screaming hysterically. She ran inside and called "000" telling the operator that she was very frightened for the deceased and admitted she had heard similar things on previous occasions.

1. Inside the house, the accused had also called "000". He said that the deceased at that stage was bleeding, and still breathing. He was told to obtain a cloth or towel. He was asked if the offender was still nearby and he replied, "Yes". He was asked if he knew who the offender was. He replied "Yeah me". He told the operator the deceased had been stabbed several times, in the chest and abdomen.

1. Police arrived around 7:55pm. Constable Nicholson had drawn his taser and the camera device was active. On entering the house the police found the deceased in the main bedroom. She was lying on her side. The accused was kneeling beside her body. The floor was stained with a large quantity of blood. Constable Rowe asked, "Fucking hell, who did this?" The accused calmly replied, "It was me". Police directed him to move away from the body and lie on the ground face down. He told police that the knife he used was at the feet of the deceased on the ground. He appeared calm and responsive.

1. Ambulance personnel arrived but due to the blood loss were unable to revive the deceased. A crime scene was declared. There was physical evidence of a violent struggle, including holes to walls and a quantity of blood. The deceased suffered 12 stab wounds, four to her back, seven to her torso, and one to her cheek. There were additionally defensive wounds to her hands and fingers. One of her fingers had been dislocated.

The legislative framework

1. Section 132 commenced on 14 January 2011. It was introduced to remove the former veto power held by the prosecution. Under the new provision, if the prosecutor does not agree to an accused's request for a judge alone order, the Court may make the order "if it is in the interests of justice to do so". In his Second Reading Speech, the Attorney-General said this:

"The bill further amends the Criminal Procedure Act 1986 to implement a new system for determining when a trial should proceed before a judge sitting alone without a jury. Section 132 of the Criminal Procedure Act 1986 allows the accused person in criminal proceedings to be tried by a judge alone if the judge is satisfied that the accused has sought legal advice in relation to the election and the Director of Public Prosecutions consents to the making of the election. The Chief Judge of the District Court proposed in late 2009 that the Director of Public Prosecution's veto power be removed from s 132 by allowing a court to settle the dispute if the prosecution and defence cannot agree on the issue of trial by a judge alone. Judge-alone trials are appropriate in a limited number of circumstances. For example, they may be appropriate where there are concerns that cannot be overcome regarding pre-trial publicity, or where the evidence of the trial is likely to be highly technical.''

1. Prior to the introduction of this legislation, if the prosecutor did not agree to the making of a judge alone order, an accused's only recourse was to apply for a permanent stay of the proceedings. This was rarely successful because the courts tended to be of the view that the prosecution's decision not to agree to an order being made was a matter of prosecutorial discretion with which the courts should not interfere.

1. The effect of the new provisions was considered at length by McClellan CJ at CL in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1. In that case, the Crown appealed against the decision of Solomon DCJ to grant a trial by judge order as a result of the possible prejudice flowing to the accused because he was Muslim, he was charged with an assault on a female family member and because the Crown asserted that he acted as he did because he held "antiquated" views about women. In allowing the Crown appeal, the Chief Judge considered the effect of the words "in the interests of justice" in the context of an application for a trial by judge order. His Honour referred to the decision in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, where the issue had been considered in respect of civil trials. The effect of the decision in Pambula Hospital was that, before a jury should be dispensed with in a civil trial, it was "necessary to show grounds which are particular to the case in hand." His Honour was of the opinion that the legislation did not create a presumption in favour of a trial by jury. His Honour said the following at [96]:

"[96] This appeal raises questions of fundamental importance which the divergence of views in previous decisions confirms are not readily resolved. Although s 131 provides for trial by jury 'except as otherwise provided', I do not think that the section has the effect of creating a 'presumption' that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a 'presumption' of trial by jury is displaced. Each mode of trial has its particular characteristics and, accordingly, depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a judge-alone trial rather than trial by a jury. Of course, absent an application by an accused person, the default position will be that the trial must take place with a jury. And, no doubt, when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople. Subsection (5) acknowledges this consideration. However, I see no reason why the legislation otherwise requires particular weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers it is in the interests of justice to make the order."

1. In agreeing with the orders proposed by his Honour, Hidden J in Belghar commented as follows at [118]:

"[118] I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in subs (5). To adopt the words of Chesterman JA in Fardon, an accused cannot have a trial by judge alone 'for the asking'."

Submissions

1. The accused has foreshadowed that he intends to raise the issue of the partial defence of substantial impairment pursuant to s 23A of the Crimes Act 1900. A notice pursuant to s 151 of the Criminal Procedure Act has been served. Section 23A is relevantly as follows:

"23A Substantial impairment by abnormality of mind

(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

(3) ...

(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.

(6) ...

(8) In this section:

'underlying condition' means a pre-existing mental or physiological condition, other than a condition of a transitory kind."

1. According to the accused, the central issue in the trial will be whether he should be found not guilty of murder but guilty of manslaughter due to the substantial impairment of his mind as the result of an underlying condition. There is competing expert medical evidence before me, some at least of which supports the proposition that the accused is suffering from an Autistic Spectrum Disorder or what was at one time commonly described as Asperger's Syndrome. It is anticipated that these expert witnesses will give evidence in support of the existence and severity of this condition. It is unnecessary for present purposes to refer extensively to this material or to analyse it in detail. It is sufficient to observe that one expert medical opinion upon which it is anticipated the accused will rely contains the following conclusion:

"All this suggests strongly that the accused's Asperger disorder and comorbid depression with or without alcohol related and/or perinatal brain damage caused substantial impairment with regard to his capacity to retain self-control at the time of the killing whilst in the midst of a heated argument with his wife."

1. It can reasonably be anticipated that this opinion will be in contest at the trial and that the Crown will call competing expert medical evidence.

1. In these circumstances the accused submitted that it is in the interests of justice for a judge to make the determination in this case. This is said to be at least for the following reasons. First, a judge is likely to be more experienced in assessing and weighing expert opinion evidence. Secondly, a judge is less likely to be inappropriately influenced by the tragic and violent facts of the case, which are to a large extent not in dispute. Thirdly, the accused desires a trial by judge alone and the opinion of an accused person may be relevant to the issue. Fourthly, the trial does not require the application of objective community standards to any significant degree, if at all. The issues of intention or the assessment of expert opinion do, or at least may, not involve the application of community standards. Finally, s 23A(2) prevents evidence of opinion in relation to the degree of impairment being adduced so that the ultimate question for the tribunal of fact is a question of degree rather than one concerned with the application of objective community standards.

1. It should be noted that the Crown disputes the last two reasons upon which the accused relies.

1. The accused contended that as the central issue in the case revolved around competing expert opinions regarding a medical condition, it was therefore in the interests of justice that the final decision on that issue be supported by reasons given by a judge, rather than that the decision remain shrouded in the uncertain and unverifiable processes of the jury. He cited Martin CJ in Arthurs v State of Western Australia [2007] WASC 182 at [59] and [89] as follows:

"[59] In the limited time available my researches have only identified three decisions dealing with the section. Two of those, The State of Western Australia v Tarau [2005] WASC 290 and The State of Western Australia v Iley [2006] WASC 107, were cases in which the application was granted on the ground that the essential issue for determination was whether the accused person was not guilty by reason of insanity. Because that issue will obviously turn largely upon the evaluation of expert evidence in each of those cases it was considered appropriate to grant the application.

...

[89] Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict. That consideration seems to me to lend weighty support in this case to the proposition that trial by Judge without jury is in the interests of justice."

1. In opposing the application the Crown drew my attention to the speech of the Honourable J W Shaw, the then Attorney General and Minister for Industrial Relations on the occasion of the Second Reading of the Crimes Amendment (Diminished Responsibility) Bill that preceded the ultimate passage of s 23A into law. The Attorney's speech was quite detailed but for presently relevant purposes can be limited to the following:

"The centrepiece of the legislation is the emphasis on the moral assessment to be made by the jury as to whether murder should be reduced to manslaughter in the light of any proven substantial impairment. Some may ask whether this new defence would have led to a conviction for murder rather than manslaughter in Mr Cassell's case. That is a hypothetical and somewhat improper question. Mr Cassell has been lawfully convicted under the present legislation and is serving his sentence. What I can say is that the new defence places increased emphasis on the role of the jury as the appropriate body to assess guilt or innocence when the defence is raised. The new defence also places increased emphasis on the moral assessment by the jury as to whether the evidence warrants the reduction from murder to manslaughter.

...

I turn now to a detailed analysis of the provisions of the bill. Item [1] of schedule 1 repeals the present section 23A of the Crimes Act 1900 and inserts a new section 23A. The new section 23A(1)(a) requires the accused person to prove that his or her capacity to understand events, to judge whether his or her actions were right or wrong, or to control himself or herself was substantially impaired by an abnormality of mind arising from an underlying condition. The reference to 'substantially impaired' in proposed new section 23A(1)(a) excludes trivial impairments. The term 'abnormality of the mind' has a restricted meaning in the context of this amendment. Everyone would agree that a person who kills another person is acting abnormally. However, a person charged with murder cannot come within the defence unless they prove that the abnormality of mind affected his or her capacity to understand events, to judge whether his or her actions were right or wrong, or to control himself or herself.

'Underlying condition' is defined as a pre-existing mental or physiological condition other than of a transitory kind. Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person. Under the old defence of diminished responsibility, some commentators felt that the opinions of the expert witnesses - that is, the psychiatrists and psychologists - dominated the jury's decision as to whether or not the defence succeeded. The new defence returns the jury to the central role by requiring the jury to determine whether the impairment, once established, was so substantial as to warrant liability for murder being reduced to manslaughter. In coming to its verdict, the jury brings to bear the community's collective wisdom and its sense of justice.

Proposed new section 23A(2) emphasises community values. It does this by preventing expert witnesses from giving an opinion as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The experts will only be able to give evidence about whether there was a substantial impairment under proposed new section 23A(1)(a). I will be reinforcing the important role of the jury set out in proposed new section 23A(1) by asking the Director of Public Prosecutions to amend his prosecution guidelines to require prosecutors to take community values into consideration when deciding whether to consent to a trial by judge alone when the accused is charged with murder and has given notice that he or she will rely upon the defence of substantial impairment, and whether to accept a plea to manslaughter on the basis of substantial impairment when the person has been charged with murder.

I accept that this emphasis on the role of the jury may lead to more trials and therefore greater costs to the courts, the Director of Public Prosecutions, defence agencies and the accused. In determining the guilt or innocence of a person for murder or manslaughter, however, costs should not be the only consideration.

...

In conclusion, the bill introduces half a dozen new measures. The amendments emphasise the role of the jury. They give the experts concrete tests by which to assess the impairment of the accused. They do not permit the experts to give evidence about the ultimate moral assessment which the jury must make."

1. The Crown contended in this case that the issue was definitively one that required the assessment and application of objective community standards and as such was one that fell squarely within the purview of a properly instructed jury. I was in that respect referred to the decisions of Hunt CJ at CL in R v Trotter (1993) NSWLR 428 at 431E-G and Adams J in R v Majdalawi [2000] NSWCCA 240 at [36]. The Crown also contended that there were no other factors or issues tending to suggest that it was in the interests of justice to make the order sought.

Consideration

1. I do not consider that it is in the interests of justice to make the order sought by the accused. I have had particular regard to his patent concern that issues of a potentially technical nature should not be left to the private ruminations of a jury when the prospect of a misunderstanding of the evidence has the potential to create an irremediable injustice, in contrast to the prospect of an ordered appellate review of any reasons that a judge would be required to provide in support of his or her conclusion on the same issue. There is no doubt that such an argument has an easily understandable, if possibly superficial, forensic attraction.

1. The interplay between s 23A(1)(b) and (2) is important. The terms of s 23A(2) make it plain that the decision called for by s 23A(1)(b) is not in fact a medical or technical decision, even if the decision itself is likely, if not certainly, to be one that will have been informed by evidence of that type or character. Section 23A(2) makes it plain, as the Second Reading Speech was at pains to emphasise, that the factual matter requiring determination is at large, and is not in any way to be constrained or limited by expressions of opinion about it. It is abundantly clear that the opinion is one that calls up consideration of an objective community standard, being whether the extent of the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. That is a question upon which minds may differ, but is nevertheless an evaluative question that cannot, and ought not, be foreclosed.

1. The anterior question with which s 23A(1)(a) is concerned is in a different category. Medical opinions upon it and about it appear likely to figure prominently in the trial. It does not involve the determination of assessment of an objective community standard or indeed any other form of standard at all. It involves a question of fact to be decided with the legitimate benefit of expert medical evidence. Despite the concerns expressed by the accused about it, that is a decision of a type upon which juries are asked regularly to confer on something approaching a daily basis. It does not, and in my view in this case it ought not, derogate from the importance of leaving the s 23A(1)(b) issue to the jury in this case.

1. For the reasons I have given, I consider that the trial will involve a factual issue that requires the application of objective community standards. It is for that reason not in the interests of justice to order that the trial proceed before a judge alone or that a trial by judge order be made.

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