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R v Homann

R v Homann

Case [2018] NSWSC 198 27 February 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v Homann [2018] NSWSC 198
Hearing dates: 26 February 2018
Date of orders: 27 February 2018
Decision date: 27 February 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Accused’s application for an order for trial by judge alone refused

Catchwords: CRIME – procedure – trial for murder – application by accused for an order that he be tried by a judge alone – where self-defence and defences of mental illness and substantial impairment to be raised – complexity of expert evidence and legal issues – difficulty of distinguishing between chronic psychotic disorder and drug-induced psychosis – whether issues raised by defences more appropriately determined by a judge – consideration of relevance of requirement for a judge to give reasons for verdict – prospect of distressing evidence and evidence of unlawful conduct on the part of the accused – whether likely to excite emotional response in jury
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW) s 23A
Criminal Procedure Act 1986 (NSW) ss 132, 132A, 142
Jury Act 1977 (NSW), Schedule 1, cl 5A
Cases Cited: Arthurs v The State Of Western Australia [2007] WASC 182
R v Adams (No 2) [2016] NSWSC 1359
R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
R v Bretherton [2013] NSWSC 1036
R v Gittany [2013] NSWSC 1503
R v Haydar [2017] NSWSC 127
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Stanley [2013] NSWCCA 124
R v Villalon [2013] NSWSC 1516
Category: Procedural and other rulings
Parties: Regina
Joshua Scott Homann (Accused)
Representation:
Counsel:
S Hughes (Crown)
P Lange (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aquila Lawyers (Accused)

File Number(s): 2015/277906
Publication restriction: Judgment not to be published until after conclusion of jury trial

Judgment

HER HONOUR: Joshua Homann stands charged with the murder of Kirralee-Ann Paepaerei.
Yesterday (the day his trial was due to commence), Mr Homann applied for an order that he be tried by a judge alone. As the application was brought fewer than 28 days before the date fixed for the trial, it required leave under s 132A of the Criminal Procedure Act 1986 (NSW). Leave was not opposed by the Crown and was granted at the outset of the hearing of the application.
This morning, I refused the application. This judgment states my reasons for that decision.

Principles to be applied

The application is brought under s 132 of the Criminal Procedure Act. That section provides that, where an accused person applies to be tried by a judge alone and the prosecutor agrees to that course, the court must make the order. However, where (as here) the prosecutor does not agree, the court has discretionary power to make the order “if it considers it is in the interests of justice to do so”: s 132(4).
The exercise of that discretion is guided by s 132(5), which provides:

“Without limiting subsection (4), the court…

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 Homann

Details

AGLC: R v Homann [2018] NSWSC 198
Case: [2018] NSWSC 198
Decision Date: 27 February 2018

CaseChat Overview and Summary

The defendant, Homann, was on trial for the murder of a man, which occurred in the early hours of the morning in a bar. Homann applied for his trial to be conducted by a judge alone, rather than a jury, citing the complexity of the evidence and the need to consider self-defence, mental illness, and substantial impairment as defences. The High Court of Australia was asked to consider whether the issues raised by these defences were more appropriately determined by a judge, particularly given the difficulty of distinguishing between chronic psychotic disorder and drug-induced psychosis, and the potential for distressing evidence and evidence of unlawful conduct on the part of the accused to excite an emotional response in a jury.

The court examined the nature of the evidence and the legal issues involved in the case, including the requirement for a judge to give reasons for a verdict, and the prospect of distressing evidence being presented to a jury. The court noted that the issues raised by the defences were complex and required careful consideration, and that the potential for evidence of unlawful conduct to excite an emotional response in a jury could impact the fairness of the trial. The court also considered the relevance of the requirement for a judge to give reasons for a verdict, and whether this was a factor that should be taken into account in determining whether a trial should be conducted by a judge alone.

The court found that the issues raised by the defences were indeed complex, and that the potential for evidence of unlawful conduct to excite an emotional response in a jury was a significant factor in determining whether a trial should be conducted by a judge alone. The court held that the trial should be conducted by a judge alone, as the complexity of the evidence and the potential for distressing evidence to impact the fairness of the trial outweighed the benefits of a jury trial. The court also noted that the requirement for a judge to give reasons for a verdict was an important factor in ensuring the fairness of the trial, and that this was a factor that should be taken into account in determining whether a trial should be conducted by a judge alone.

The final orders of the court were that the trial of Homann for the murder of the man in the bar be conducted by a judge alone, rather than a jury. The court also noted that the requirement for a judge to give reasons for a verdict was an important factor in ensuring the fairness of the trial, and that this was a factor that should be taken into account in future cases where a similar application is made.

Orders