R v Camilleri

[2020] NSWSC 951

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Camilleri [2020] NSWSC 951

Hearing dates:

20 July 2020

Date of orders:

20 July 2020

Decision date:

24 July 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Application for trial by judge alone pursuant to s 132 of the Criminal Procedure Act is refused, and the Notice of Motion filed on 1 July 2020 is dismissed;

2. Reasons reserved;

3. Adjourned to the Arraignments List on 7 August 2020 at 10am (or such other time as advised by the Court) for mention, for a trial date to be fixed;

4. An estimate of five days for trial is noted;

5. Bail not applied for and refused;

6. s 77 order for the accused’s attendance via AVL;

7. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of the evidence relied upon in support of the Notice of Motion filed on 1 July 2020, or of the reasons of the Court in refusing the application, pending further order

Catchwords:

CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – single factual issue in dispute – substantial impairment – application of community standards – importance of community participation

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)

Crimes Act 1900 (NSW)

Crimes Amendment (Diminished Responsibility) Bill 1997 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Jury Act 1977 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Long v R [2002] QSC 54; (2002) 128 A Crim R 11

R v Ahmed [2019] NSWSC 55

R v Bretherton [2013] NSWSC 1036; (2013) 233 A Crim R 427

R v Burrell [2009] NSWCCA 193

R v D’Arcy [2003] QCA 124; (2003) 140 A Crim R 303

R v Davidson (No 2) [2019] NSWSC 1011

R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371

R v Eyuboglu [2019] NSWSC 181

R v Hadler [2018] NSWSC 1151

R v Haydar [2017] NSWSC 127

R v Homann [2018] NSWSC 198

R v Hucker [2002] NSWSC 1068

R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513

R v Hutchison & Wilkinson [2018] NSWSC 1759

R v Jamal [2008] NSWCCA 177; (2008) 191 A Crim R 1

R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318

R v Villalon [2013] NSWSC 1516

Category:

Principal judgment

Parties:

Regina (Crown)
Jessica Camilleri (Accused)

Representation:

Counsel:
G Harrison (Crown)
N Steel (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/00225633

Publication restriction:

Restricted to the parties until verdict or further order of the Court

Judgment

1. HER HONOUR: On 20 July 2019, Rita Camilleri died at her home in St Clair. Her daughter, the accused Jessica Camilleri, was charged the following day with her murder.

2. On 27 March 2020, the accused was committed for trial pursuant to s 93 of the Criminal Procedure Act 1986 (NSW) (the “CP Act”). She appeared in this Court before R A Hulme J on 19 June 2020, when she was arraigned upon an indictment dated 19 April 2020 that charged her with the murder of Rita Camilleri. She entered a plea of not guilty.

3. On 1 July 2020, the accused filed a Notice of Motion moving the Court for an order pursuant to s 132 of the CP Act for her trial to be heard by a judge sitting without a jury. The Crown opposed the order and it was thus necessary for the Court to determine the application on its merits. The matter was listed for hearing on 20 July 2020.

4. On that date, after having received evidence and hearing the submissions of the parties, I refused the application. My reasons for that decision were reserved until today.

The Accused’s Application

5. The accused’s application is advanced on three grounds, as follows:

1. “That a judge alone trial is appropriate to enable the accused to properly participate in her trial given the impacts of her co-morbid psychiatric conditions;

2. That an order should be made pursuant to s 365 of the Criminal Procedure Act as the accused person consents to be tried by Judge alone;

3. That otherwise pursuant to s 132 and 132A it is in the interests of justice in this case for the accused to be tried by a Judge sitting alone.”

6. The accused relies upon the affidavit of her solicitor, Amanda Coultas-Roberts, affirmed on 25 June 2020, in support of her application, with annexed documentary material, together with a copy of a Notice of Intention to Adduce Evidence of Substantial Impairment.

7. The only issue at trial will be the question of the availability of the partial defence of substantial impairment, pursuant to s 23A of the Crimes Act 1900 (NSW).

8. In her affidavit, Ms Coultas-Roberts deposes to having, together with counsel, provided advice to the accused as to the prospect of proceeding with a trial by judge alone, and receiving instructions from her to make an application pursuant to s 132 of the Act. Mr Steel, Counsel for the accused, advised the Court at the hearing of the application that he and Ms Coultas-Roberts were satisfied that their client understood the advice tendered to her. The accused signed an election on 10 July 2020, in which she made an application for a trial by judge alone (MFI 1).

9. Ms Coultas-Roberts has acted for the accused with respect to the current criminal prosecution since August 2019. She engaged Dr Kerri Eagle, a forensic psychiatrist, to examine the accused and provide an opinion as to the accused’s fitness, and any mental illness defence that may be available to her. Dr Eagle provided that opinion on 14 December 2019. Dr Eagle concluded both that the accused was unfit to be tried, and also that she had available to her a defence of mental illness and a partial defence of substantial impairment.

10. Ms Coultas-Roberts held numerous conferences with the accused in the period of August 2019 to February 2020, both in person and via an audio-visual link, and came to the view that the accused was not fit to give her instructions. Accordingly, the matter proceeded to committal pursuant to s 93 of the CP Act.

11. Since committal, the accused has been examined by Professor David Greenberg, forensic psychiatrist; by Yiota Zingirlis, psychologist; and by Dr Richard Furst, forensic psychiatrist. Each has concluded that the accused is fit to be tried. The expert evidence raises the availability of the partial defence of substantial impairment.

12. The accused has served relevant reports on the Crown – Professor Greenberg having been engaged by the Office of the Director of Public Prosecutions – and advised the Crown that she is prepared to plead guilty to manslaughter on the basis of substantial impairment, in full discharge of the indictment. The Crown is proceeding on the indictment charging the accused with her mother’s murder.

13. Ms Coultas-Roberts is concerned that, despite her fitness to be tried, her client will not cope in the environment of a trial by jury. Having regard to the expert opinion, and to her own experience of the accused over a number of conferences in the past year or so, she fears that the accused will not be able to manage her emotions in court, to her detriment. Ms Coultas-Roberts deposed:

"The accused has, during the months I have dealt with her, shown herself to be anxious and frequently unable to focus on the issues which need to be considered, she appears driven to explore in detail whatever she is focused on at the time. She talks at high speed in a pressured verbose monologue and it is often difficult to interrupt and re focus her. I am concerned as to the accused's ability to manage her emotions during the course of a trial and think she will find it hard to move from one topic or witness to another without breaks to explain what is happening and why. I think she will find it hard to understand why the Jury are not being provided with all the detail she believes is necessary and this will cause her to be frustrated and anxious. I fear that it would be difficult to stop her speaking out in court in the presence of the jury. This was a real problem in her first few appearances in the Local Court although she has managed well more recently.”

14. By her affidavit, Ms Coultas-Roberts has produced copies of the Crown Case Statement (“CCS”) and the reports of those who have examined or otherwise assessed the accused. It is not necessary for present purposes to set out the facts alleged against the accused, summarised by the CCS. It is the psychiatric and psychological evidence which is of most relevance to the application.

15. Professor Greenberg saw the accused on 8 April and 11 April 2020 at Silverwater Women’s Correctional Centre, where she was held on remand, for a total of about five hours. He had been comprehensively briefed and had available to him a substantial amount of material relevant to the alleged offence, and to the accused’s psychiatric history. He provided a report on 21 April 2020.

16. He took a history from the accused of the events of 20 July 2019, and of her past personal, medical and psychiatric history. On conducting a mental status examination of the accused, Professor Greenberg found her to be properly groomed, co-operative, and friendly. He saw no evidence of agitation, and “she sat calmly throughout the lengthy interviews”. She was loquacious and over-inclusive in speech, and frequently needed to be asked to focus on the matter at hand. She denied any symptoms consistent with thought disorder or psychosis. She presented as unemotional in her account of her mother’s death.

17. Professor Greenberg noted earlier diagnoses with respect to the accused, and reviewed the clinical material with which he had been provided, as well as police holdings. In the past, the accused has been diagnosed with various conditions or disorders, including obsessive compulsive disorder (“OCD”), an intellectual disability, and anxiety. She has been observed to be impulsive with poor anger control, and has previously lashed out at both strangers and medical staff. She has been the subject of numerous complaints to police for assault or harassment, the latter often by telephone, and sometimes including death threats and threats of beheading. She has been prescribed a wide range of medication, although the efficacy of many of them is doubted.

18. The professor also had access to witness statements assembled as part of the brief of evidence relating to the death of Mrs Camilleri and noted that, following Mrs Camilleri’s death, the accused sought assistance by both telephoning the emergency operator, and by seeking out neighbours to help her. On the arrival of police at the scene, she gave a detailed account of what had happened, claiming to have acted in self-defence. She also asked a number of people whether her mother could be revived.

19. In an interview with police officers that was electronically recorded, the accused presented to a support person as:

“articulate and [she] had a good recollection of what had occurred. She spoke in detail about what happened, her actions and displayed very little emotion during the interview.”

20. Professor Greenberg referred to the custody management record of the accused’s admission to police custody, and the time she spent there. That record states:

“At 01:38 AM on 21 July 2019, the accused was sitting the dock ‘calm’ and ‘well spoken’. When asked if she was okay? She stated, ‘Yes’.

At 2:55 AM on 21 July 2019, the prisoner was sitting in the dock, awake, not complaining and ‘quiet’.

At 03:37 AM on 21 July 2019, she was observed sitting in the dock and awake.

At 04:45 she attended the ERISP room.

At 08:38 AM on 21 July 2019, is the accused was sitting the dock and was described as ‘quiet’.

At 09:35 AM on 21 July 2019, the accused was sitting in the cell ‘quiet’. She was transferred to Amber Laurel on 10:40AM.”

21. He also reviewed the interview that the accused had with investigating police, over a period of about one hour and eight minutes on the morning of 21 July 2020. Professor Greenberg noted that the accused sat throughout the interview “reasonably calmly”, and responded to questions in a timely and coherent manner. She seemed alert, and appeared to understand most questions asked of her, asking for clarification where she did not. Her speech was “clear, mildly rapid, and articulate” and she gave a coherent account of what had happened, with no evidence of thought disorder. She demonstrated “a degree of insight into her circumstances and situation”. She behaved in a similarly appropriate manner when a forensic procedure was conducted, responding to questions in a timely way and giving a coherent account of herself. There was no evidence of bizarre behaviour or psychotic symptoms.

22. Professor Greenberg reviewed the records of the accused’s examination at Nepean Hospital’s Emergency Department on the afternoon of 21 July 2020. The psychiatrist who saw the accused then recorded her account of having ceased to take prescription medication in favour of naturopathic remedies in the previous six months. The accused presented as:

“calm, co-operative and engaging with the interview. She did not show any signs of aggression or agitation”.

23. Although the accused’s speech was pressured, the Nepean psychiatrist was able to interrupt her, and found her to be “goal directed and coherent”. A formal examination conducted pursuant to the provisions of s 27 of the Mental Health Act 2007 (NSW) concluded that the accused was not mentally ill or mentally disordered. There were no signs of delusions, hallucinations, or mood disorder. There was no basis to detain her under the Mental Health Act.

24. When admitted to the custody of Corrective Services New South Wales (“CSNSW”) on 21 July 2019, a Justice Health nurse observed the accused to settle quickly in the cell into which she was placed.

25. On 23 July 2019, the accused was assessed by a CSNSW risk assessment team. She gave an account of her home life in the period immediately before her mother’s death, and asserted:

“It was self-defence you see, not murder. It should be manslaughter actually, it wasn’t planned”.

26. On 24 July 2019, the accused was observed by a nurse to be “very thought disordered”. A psychiatrist who saw her the following day, Dr Baker, noted that her thinking was concrete and emotionally detached. Dr Baker saw no evidence of psychosis, but noted her history of “a primitive coping repertoire and difficulty controlling her anger”. He thought the accused was probably on the autism spectrum and had a mild intellectual disability.

27. Four days later another psychiatrist, Dr Callum Smith, examined the accused, concluding that she may have a level of developmental delay with “stereotyped interests likely related to autism spectrum disorder”. He regarded any diagnosis, however, as subject to ongoing assessment. He saw her on another two occasions into August 2019 and confirmed a diagnosis of autism spectrum disorder. A psychiatric registrar who saw the accused in the Mental Health Screening Unit (“MHSU”) at about that time reached the same conclusion.

28. After about ten days in the MHSU, where the accused had socialised with staff and inmates and responded appropriately on medical assessment, a diagnosis of autism spectrum disorder and intellectual impairment was given. The accused was regarded as “relatively stable” and there were no psychotic symptoms.

29. In September and October 2019, the accused claimed to hear voices and was commenced on antipsychotic medication, and admitted to the MHSU. After a month or so she said she had made up the voices, having been told by another inmate that, if she made a claim of that nature, she would be returned to the MHSU. No psychotic symptoms were observed, with the assessing psychiatrist referring to the accused as a “diagnostic dilemma”. Various possible diagnoses were advanced on 25 November 2019: intellectual disability, autism spectrum disorder, “low-grade hypomania”, or a “grumbling psychosis”.

30. Professor Greenberg observed that the accused has a complex psychiatric presentation that has led to diagnostic uncertainty. His own conclusion is that the accused qualifies for primary diagnoses of intellectual disability disorder, autistic spectrum disorder and intermittent explosive disorder. Further, she has some features of other psychiatric disorders, being personality problems with narcissistic features, OCD, depression and anxiety, and Attention Deficit / Hyperactive Disorder.

31. The accused’s intellectual disability is such that she functions “at the higher end of mild intellectual disability”. She can write coherently in sequential and logical statements, and can use various internet platforms. Her speech and comprehension are consistent with higher function.

32. The diagnosis of autism spectrum disorder is given by Professor Greenberg on the basis that the accused:

“…is talkative and engaging, she has marked deficits in social-emotional reciprocity where there is a failure of normal back-and-forth conversation. There’s also reduced a history of sharing of interests or emotions. She has a history of marked deficits in developing, maintaining and understanding relationships and making friends. It is alleged that she had poor relationships with her father and sister and had no close ongoing friendships. Her soul [sic] support and only real companion was her mother. The only other interpersonal involvement was her constant harassment of male strangers on the phone which in her mind was romantic in nature. She has a history of marked restriction and repetitive patterns of behaviour, interests and activities. There is a history of an insistence on inflexible routines and fixed interests that is abnormal in intensity…”.

33. The diagnosis of intermittent explosive disorder reflects the accused’s impulsive acts of aggression and anger, perhaps most clearly seen in the police holdings relevant to her, which evidence unprovoked assaults on unknown individuals in public places. She has a history of violent outbursts where she has failed to regulate her anger, and acted in an aggressive way vastly out of proportion to the perceived provocation or trigger.

34. Since entering custody the applicant has refused any medication.

35. Professor Greenberg regarded the applicant as fit to be tried. Although there is no issue for this Court to determine concerning fitness, some of the professor’s observations in that regard are relevant. He considers the accused as being able to understand the court proceedings in a general sense, although she will need some “simple education about the court process from her legal counsel” and assistance with court etiquette. She can instruct her lawyers as to her defence and could give evidence herself if that were required. Were she to testify, the accused may be “anxious, verbose, over-inclusive, and circumstantial in her responses to questions”, but she can be redirected and refocused.

36. She is able to understand the substantial effect of evidence given in court. Professor Greenberg noted that the accused has a relatively good attention span, and was able to respond appropriately to his questions over two interviews of over two hours each, and to tolerate the 68 minute police interview on 21 July 2019. She is able to sit in a chair without agitation for periods of time of that order. He considers that it would be prudent for the court to take breaks every two hours or so, and for a support worker to be present with the accused when court was sitting. As to the potential for outbursts, Professor Greenberg said:

“Ms Camilleri has an intermittent explosive disorder where the outburst is grossly out of proportion to any provocation or precipitating stressor. When she becomes agitated, embarrassed or humiliated, there is a potential that she will have an aggressive outburst. There are reports that this may improve with medication such as Neurlactil. Based on her historical behaviour, her physical aggression is likely to be directed at females rather than males and in my view that this caution should also apply to her female solicitor.”

37. In both his report of 21 April 2020, and in his supplementary report of 21 May 2020, Professor Greenberg expressed the view that the accused would be assisted by psychiatric medication, such as Neulactil, during the course of any trial, to “dampen her anxiety and increase her level of frustration tolerance”. Appropriate medication would have a sedative effect that may benefit her.

38. Yiota Zingirlis is a forensic psychologist who saw the accused at the request of her legal representatives over two separate days amounting to about seven hours. Ms Zingirlis was provided with a quantity of documentary material and reviewed the accused’s history as presented in that material (and similarly to Professor Greenberg).

39. Of her progress in custody, Ms Zingirlis noted that the accused reported three physical altercations with other prisoners. She had discussed details of the charge against her with some prisoners, and felt that she was “judged” as a consequence, or viewed as “some kind of monster”. This, and a comment made about her weight, had caused her to physically react, by throwing tea and attempting to pull the hair of other prisoners. To the accused’s surprise, one prisoner retaliated, and she told Ms Zingirlis that she was more cautious of her conduct as a consequence, the behaviour of people in custody being different to the behaviour of people in the community. She reported that, whilst she had often thought of pulling the hair of other prisoners when angered, she now refrained from doing so, fearing reprisal.

40. At interview, Ms Zingirlis observed the accused to be kempt, to make and maintain good eye contact, and to speak candidly. When detailing her history of aggression, she assured Ms Zingirlis of her personal safety, stating that she would not engage in such behaviour against the psychologist during the assessment.

41. Having administered a number of tests to the accused, Ms Zingirlis concluded that she had a borderline intellectual disability. She concluded that the accused had an autism spectrum disorder, and a Specific Learning Disorder.

42. As to her capacity to cope in court, Ms Zingirlis said:

“In additional she has expressed concerns about being able to follow the legal proceedings. Whilst she experienced attentional issues due to preoccupying thoughts, her working memory seemed to be a relative strength when requiring to remember or keeping track of discrete structured information.

Although Ms Camilleri experiences neurocognitive deficits explained above, she was able to demonstrate a general understanding of the trial proceedings and felt she could engage and trust the explanations of her legal team. She likely has capacity although will require significant structure to manage any impulsive reactions, difficulties with shifts in discussions and containment of her preoccupying thoughts. She will benefit from regular breaks to assist with attentional issues, instructions to be broken into smaller sequential bits and explanations on legal terminology and process. Considering her memory deficits, she may also require repetition of information, more specifically in concrete terms.”

43. Dr Richard Furst saw the accused at the request of her legal representatives on 15 May 2020 for about 90 minutes. He had seen her on one other occasion in February 2014, after an incident involving the accused’s aunt led to the accused being criminally charged. On that earlier occasion, Dr Furst thought the accused had an intellectual disability, and an anxiety disorder.

44. During the most recent consultation Dr Furst noted that the accused was talkative and expansive, with no evidence of psychosis. Having reviewed the voluminous documentary record (similarly to Professor Greenberg and Ms Zingirlis) and assessed the accused, Dr Furst concluded that she meets diagnostic criteria for autism spectrum disorder, OCD, and a mild to borderline intellectual disability.

45. Dr Furst was also of the view that the accused is fit to be tried, and could manage to work with her lawyers in a trial setting.

Submissions on behalf of the Accused

46. In support of the application, the accused submits that it is:

“in the interests of justice in this matter to accommodate the issues that are likely to arise in the trial from the impact of a number of co-morbid psychiatric conditions which affect the accused. These conditions include an Intellectual Disability Disorder, Autism Spectrum disorder and Obsessive-Compulsive Disorder”.

47. Her position is that, because of the disorders with which she has been diagnosed, there is a very real risk that she will not cope with the stress of a jury trial and of listening to witnesses speak about her mother or herself and, under the weight of that stress, will conduct herself in a way that may lead a jury to be prejudiced against her. If the accused were to have some aggressive outburst, or even to require frequent breaks in proceedings so that evidence could be explained to her such that the patience of a jury might be tested, prejudice to her may follow.

48. It is submitted that a judge alone trial is better able to accommodate both the unusual presentation of the accused person in the dock, and any need for irregular sitting hours necessitated by some feature particular to the accused. A trial involving 12 members of the community can be assumed to be more likely to be infected by prejudice against an accused person who presents in an unconventional way than would be the case for a judge, whose background and training promotes the ready capacity to disregard such matters. A judge alone trial can also be more flexible than is the case with a trial involving a jury, where the impact of any delay is limited to one fact finder, who would not be secluded in a jury room during any waiting period. It was submitted that the:

“efficiencies and flexibilities of a Judge alone trial are an important consideration given the accommodation and support that Ms Camilleri will require to be able to properly participate in the trial given her co-morbid psychiatric conditions”.

49. Having regard to the situation with the present pandemic, and the possibility that it could have an effect on the conduct of a trial before a jury, the accused referred the Court to the provision inserted into Part 5 of the CP Act by the enactment of the COVID-19 Legislation (Emergency Measures) Act 2020 (NSW). Division 4 of Part 5 of the CP Act now contains s 365 relevant to judge alone trials, a provision that is intended to permit the more ready resort to judge alone trials to accommodate issues that may arise as a consequence of the pandemic. In a situation where a juror could become ill, or be exposed to an infected person, there is a strong possibility that a jury trial could be delayed or even prevented from continuing whilst measures are required to guard against the spread of COVID-19 in the community. The risk of disruption caused by illness or exposure to the virus would be much reduced were the trial heard by a judge alone.

50. Acknowledging that the question of substantial impairment is one determined by reference to community standards, the accused submitted that it is not impossible for a judge to make a determination of that nature, it having frequently occurred in the past. The Court was referred to R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513 and R v Eyuboglu [2019] NSWSC 181, where judge alone trial orders were made (with the Crown’s consent); and to the cases of R v Davidson(No 2) [2019] NSWSC 1011 and R v Hadler [2018] NSWSC 1151 where “issues of a mental illness defence and also substantial impairment arose”; and, in R v Hadler “a judge alone order was made which was not consented to by the Crown.”

51. The Court was also referred to R v Hutchison & Wilkinson [2018] NSWSC 1759 at [45]-[46], where Hamill J considered the issue of substantial impairment, commenting:

“in some rare cases, judges are called upon to determine the issue. Like a jury, the judge is required to apply community standards (insofar as they are known) and take into account the nature of the killing balanced against the severity of the accused person’s impairment, and the extent to which their thought processes differ from those of the ordinary person”.

52. It was ultimately submitted that these considerations taken together demonstrate that it would be in the interests of justice for the accused to be tried by a judge sitting without a jury.

Submissions on behalf of the Crown

53. The Crown submits that the interests of justice are best served by the involvement of a jury applying objective community standards to determine the question of substantial impairment, consistent with the intentions of Parliament. The Crown argues that:

“Parliament intended the jury to be in the central position of assessing the culpability of the accused person in relation to the s 23A Crimes Act 1900 (NSW) partial defence”.

54. It submits that the intentions of Parliament should be paramount in the decision to grant leave to displace the jury as the tribunal of fact.

55. Concerns based on the need to accommodate the accused’s disorders do not outweigh the jury being the appropriate tribunal of fact and can, in any event, be accommodated to allow her to be able to properly participate in her trial.

56. In relation to the COVID-19 pandemic, the Crown submits that the Supreme Court’s “Protocol for Court Operations – COVID-19” enables the safe conduct of jury trials, and minimises the risk to jurors and all court users. Procedures are in place to manage jury trials, whilst maintaining social distancing requirements; these measures adequately recognise the legislative steps taken by Parliament to deal with the pandemic and minimise the impact it has on the interests of justice and the running of criminal trials. The NSW courts are not currently operating in the same critical environment as in May 2020, and the same measures required when jury trials could not take place are not now required.

57. Noting the recommendations of Professor Greenberg’s as to the accommodation that will required in a trial, given the accused’s psychiatric conditions, it was submitted that these issues were all practical matters which could be managed by the Court.

Consideration

58. It is important at the outset to have regard to the way in which this trial will be conducted, regardless of whether it is heard before a judge, or a judge and jury.

59. At the hearing before me the parties agreed that, the only issue being whether the accused’s impairment was so substantial as to warrant her liability for murder being reduced to liability for manslaughter, it would be possible to conduct the trial in a very economical way. There is no issue as to the facts surrounding the death of Mrs Camilleri, and no question that the accused has an abnormality of mind arising from an underlying condition. The only matter to be resolved by the tribunal of fact is that of the reduction of liability.

60. Accordingly, although this matter was originally given an estimate for trial of four weeks, it is considered that it can now be accommodated within five days. The parties concur that the sensible presentation of the evidence would be by way of a document setting out the events surrounding the death of Mrs Camilleri, such as a statement of facts agreed pursuant to s 191 of the Evidence Act 1995 (NSW); the tender of the recording of the interview between police and the accused; and calling oral evidence from the expert witnesses. In that regard, the Crown intends to call Professor Greenberg, whilst the accused will rely upon the evidence of Ms Zingirlis and Dr Furst. On that basis a five day estimate of trial is reasonable.

61. The application for a judge alone trial, at which substantial impairment is the only issue, must be assessed against that background.

62. By the operation of s 131 of the CP Act, the ordinary mode of trial in New South Wales is trial by jury. That position is displaced only where a party makes an application for a trial by judge order pursuant to s 132 of the Act, and such an order is made.

63. Section 132 provides:

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) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that—

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)  the risk of those acts occurring may not reasonably be mitigated by other means.

64. The Crown having declined to consent to the accused’s application for trial by judge alone, the Court may only make the order if it considers it is in the interests of justice to do so, pursuant to s 132(4). The Court may refuse to make the order sought if there is a factual issue to be resolved that requires the application of objective community standards: s 132(5).

65. The only factual issue that the tribunal of fact will be asked to resolve in the accused’s trial is whether the second element of the partial defence of substantial impairment, that her impairment is so substantial as to warrant liability for murder to be reduced to liability for manslaughter, is made out.

66. That defence is provided for by s 23A of the Crimes Act 1900 (NSW). The provision is (relevantly) in these terms:

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)  […]

(6)  […]

(7)  If, on the trial of a person for murder, the person contends—

(a)  that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or

(b)  that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

(8)  In this section—

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

67. It is ordinarily considered that the resolution of whether a s 23A(1) partial defence is available to an accused person involves balancing the character of the act causing death against the severity and impact of the accused person’s impairment, and that that judgment is one requiring the application of community standards and moral values. That has been the view taken in, amongst others; R v Bretherton [2013] NSWSC 1036; (2013) 233 A Crim R 427 at [22]–[27]; R v Villalon [2013] NSWSC 1516 at [35]; R v Haydar [2017] NSWSC 127 at [36]; R v Homann [2018] NSWSC 198; and in R v Ahmed [2019] NSWSC 55 at [15]. In R v Hucker [2002] NSWSC 1068 Howie J described s 23A as “giving rise to an issue which is quintessentially one for a jury” (at [2]).

68. Having regard to s 132(5) of the CP Act, the determination of whether the accused has available to her the partial defence is one of a character that the legislature clearly intended should be resolved by a jury. In Bretherton at [22] Harrison J referred to the Second Reading Speech that accompanied the introduction of the present s 23A of the Crimes Act by the passage of the Crimes Amendment (Diminished Responsibility) Bill 1997  (NSW). In it the Attorney gave considerable emphasis to the intention of the legislature that the resolution of the second element of a defence of substantial impairment was a “moral assessment by the jury as to whether the evidence warrants the reduction from murder to manslaughter”. In making the opinions of experts on that question inadmissible, the focus was placed wholly on the moral assessment by the tribunal of fact, a tribunal that the Parliament considered should ordinarily be a jury.

69. Thus, s 132(5) is a feature that militates strongly in favour of a trial by jury in the accused’s case, where a moral judgment will have to be made balancing the remarkable savagery and persistence of the act causing the death of Mrs Camilleri, with the nature and extent of the accused’s impairment.

70. At the present moment in history, when extraordinary measures have been taken to prevent the spread of COVID-19, s 132(5) must be viewed in light of Division 4 of Part 5 of Chapter 7 of the CP Act. The purpose of Part 5 is provided by s 353, which states:

353   Purpose of Part

The purpose of this Part is to enable criminal trials in the State to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic.

71. Division 4 and s 365 provide for judge alone trials. Section 365 provides:

365   Judge alone trials

(1)  A court may, on its own motion, order that an accused person be tried by a Judge alone.

(2)  A court may make an order under subsection (1) only if—

(a)  the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and

(b)  if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and

(c)  the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone.

(3) This section applies despite any other provision of this Act, including sections 132 and 132A.

72. Although, as counsel for the accused pointed out, s 365 – which mirrors s 132 of the CP Act to an extent – does not include a provision that corresponds with s 132(5), it retains in s 365(2)(b) the interests of justice test by which the question of trial by judge alone is to be resolved.

73. It is notable that s 365 is not intended to supplant or replace s 132; by s 365(3) the provision applies “despite any other provisions” of the CP Act, not instead of them.

74. Section 365 was introduced to facilitate the continued ability of the criminal courts to hear trial matters in circumstances where jury trials could not be held because of the public health measures taken to protect the community from a widespread outbreak of COVID-19. The strictness of those measures has recently been eased, and jury trials are proceeding, including in this Court.

72. Since trial by jury is again an available option by which to determine whether an accused person’s guilt can be proved to the requisite standard, the greatest attention must be given to s 132 in my view, with s 365 having lesser relevance.

73. That being the case, although I accept that judges are capable of applying the standards of the community, those standards are in my opinion best determined by a group of persons who represent a cross-section of the community, and bring to the task a wide range of experience of life and people. A judge has but one life’s experience to draw upon and that experience will be heavy in matters connected with the law; it cannot emulate or replace the cumulative experience of multiple individuals from a variety of backgrounds.

74. Determining whether the accused’s impairment is of such a nature and extent as to warrant the reduction in her criminal liability for the death of her mother from murder to manslaughter will not be an easy task. It will require fine moral judgments and the nuanced application of community values. It will, necessarily, be a task more readily completed by a group of people able to draw upon a wide range of values, viewpoints, and experiences, better reflecting community attitudes.

75. On that basis, it is, in my conclusion, in the interests of justice for the accused’s trial to proceed before a jury, subject to the more practical considerations raised by her.

76. In oral submission, counsel for the accused frankly conceded that the s 132 application loses much of its force having regard to the revised trial estimate of five days, since many of the practical considerations are of lesser concern in a shorter trial.

77. Even a short criminal trial can be something of a moveable feast, during which anything can, and frequently does, occur. However, the criminal courts have sound capacity to deal with most eventualities that might arise.

78. Here, it is clear that some accommodation will be required to permit the accused to fully participate in her trial in a meaningful way. Professor Greenberg was of the view that the accused should have a support person in court during the trial, and that the court should sit in blocks of two hours, rather than strictly adhering to the customary sitting hours.

79. Ms Coultas-Roberts deposed in her affidavit that, regardless of how the trial proceeds, it is her intention to arrange for a support person to assist the accused, probably through the Justice Advocacy Service.

80. Sitting times can be readily varied, and frequently are for a range of reasons. Although the court’s ordinary sitting hours – 10am to 11.30am, 11.45am to 1pm, and 2pm to 4pm – accommodate the two hour period Professor Greenberg referred to, they could be altered as necessary if the accused needed more frequent breaks in proceedings, or was becoming upset or anxious at any given time.

81. Although counsel for the accused suggested that these or other special arrangements could lead to a jury becoming prejudiced against the accused, I think that submission underestimates the earnestness with which the vast majority of jurors regard the oath or affirmation taken on empanelling, and the capacity of individual jurors to obey directions.

82. Since the only issue at trial will be the extent of the accused’s impairment relevant to the moral wrongness of her act, the focus of the evidence will be on her disabilities and disorders. That she is someone who, because of her various conditions, will find it difficult to maintain concentration over extended periods, and follow the evidence with comprehension, should not come as a surprise to jury members. Nor should it be a matter of surprise, or irritation, that some special measures may be required to ensure that she can participate in the proceedings. To the extent that some occurrence could lead to impatience among jurors, and a possibility that any impatience might be visited upon the accused to her disadvantage, an appropriate direction can be given. It must be assumed that jurors will follow directions given to them by the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]; Long v R [2002] QSC 54; (2002) 128 A Crim R 11; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D’Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2009] NSWCCA 193; R v Jamal [2008] NSWCCA 177; (2008) 191 A Crim R 1.

83. If it were considered prudent to do so, these matters can all be raised by the trial judge with the jury panel prior to empanelling to ensure that potential jurors are fully able to give impartial consideration to the issues raised at trial. Section 38(7)(b) of the Jury Act 1977 (NSW) provides the court with such a power.

84. Thus, whilst I accept as a general proposition that a trial heard by a judge alone is likely to have a greater capacity for flexibility than a trial heard before a jury, that feature does not have such significance that it outweighs the strong interest in a trial involving the application of community standards being determined by a jury.

85. Counsel for the accused raised the prospect that, since the pandemic continues, there is a danger that a jury trial could be disrupted or the jury discharged without verdict because of a juror or jurors becoming ill or, by exposure to an infected person, being obliged to isolate. That is a possibility. However, juror misadventure is a possibility in any jury trial at any time. The lives of jurors continue on outside the court house, and any criminal lawyer will be able to readily call to mind a trial that was affected because a juror fell ill, or suffered a death in the family, or became unavailable to continue to serve for some other, unforeseen, reason.

86. The Jury Act contains provisions to allow a trial judge to deal with juror unavailability and, if illness or other misadventure occurred, appropriate steps could be taken such that, in most instances, the trial could continue. I do not regard the speculative risk of unexpected juror unavailability to be a consideration of such weight as to displace the desirability of a jury determining the s 23A issue.

87. Having considered all of these matters, the Court refused the accused’s application for a trial by judge alone.

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Amendments

14 April 2021 - Typographical errors amended in MNC's and at paragraph [15].

Decision last updated: 14 April 2021