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R v Bretherton

R v Bretherton

Case [2013] NSWSC 1036 6 August 2013

Criminal Liability

Mens Rea & Intention

Diminished Responsibility

Criminal Law

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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

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.

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bretherton

Details

AGLC: R v Bretherton [2013] NSWSC 1036
Case: [2013] NSWSC 1036
Decision Date: 06 August 2013

CaseChat Overview and Summary

The case before the court was an application by the accused, Bretherton, for a trial by a judge alone on a charge of murder. Bretherton had pleaded guilty to manslaughter but contested the availability of the defence of diminished responsibility due to substantial impairment caused by an abnormality of mind. The central issue before the court was whether the application of objective community standards in assessing the accused's mental state was appropriate and if it was in the interests of justice to grant the application for a trial by judge.

The court considered the principles governing the application of diminished responsibility as a defence. It examined the statutory provisions and relevant case law to determine whether the accused's mental impairment met the criteria for diminished responsibility. The court also evaluated whether applying objective community standards in assessing the accused's mental state was consistent with the statutory framework and whether it was in the interests of justice to proceed with a trial by judge alone. The court balanced the need for a fair trial with the interests of justice and the potential impact on the accused's right to a jury trial.

In reaching its decision, the court concluded that applying objective community standards to assess the accused's mental state was appropriate and aligned with the statutory provisions. The court determined that the application for a trial by judge alone was in the interests of justice, considering the plea of guilty to manslaughter and the contested issue of diminished responsibility. The court found that a trial by judge would ensure a fair and efficient resolution of the case, taking into account the specific circumstances and the accused's plea.

The court made an order that the application for a trial by judge alone would be granted, with the single issue of diminished responsibility to be determined by the judge. This decision allowed for a focused determination of the contested issue while ensuring the interests of justice were served.

Orders