R v IP

[2023] NSWSC 1336

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v IP [2023] NSWSC 1336

Hearing dates:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Leave is granted to the accused to bring his application for trial by judge alone.

(2) The application is refused.

Catchwords:

CRIMINAL LAW – trial proceedings – murder –application for trial by judge alone – doli incapax – where accused and deceased are children – violent death of a child – potential prejudice to the accused – question of complexity of expert evidence – psychiatric diagnoses – application of community standards – importance of community participation – appearance of “judge shopping” – leave granted – application refused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act1986 (NSW)

Cases Cited:

AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8

Fittock v R [2003] 217 CLR 508; [2003] HCA 19

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 Belghar [2012] NSWCCA 86

R v Burrell [2009] NSWCCA 193

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

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

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

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

RP v The Queen (2016) 259 CLR 641; [2016] HCA 53

Texts Cited:

H Dhanji SC, J Roy and S McLaughlin, “Proving the criminal responsibility of children: RP v The Queen” (Children’s Court of NSW Resource Handbook, Judicial Commission of NSW, last reviewed May 2023)

Lord Devlin, Trial by Jury, (rev ed) (1966)

Category:

Procedural rulings

Parties:

Rex (Crown)
IP (Accused)

Representation:

Counsel:
C Curtis with D Boyle (Crown)
P Krisenthal (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

Ramsland Laidler Solicitors (Accused)

2022/00009349

Publication restriction:

Previously restricted to the parties pending verdict or other order of the Court

EX TEMPORE JUDGMENT

1. HER HONOUR: The accused is due to stand trial before this Court on 7 November 2023, having been arraigned on 10 February 2023 upon an indictment charging him with murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

2. Both the accused and the deceased were children of 13 years at the date of the fatal event, 11 January 2022, and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to each, although under different subsections. Neither can be identified. To avoid the use of what I regard as the dehumanising terminology of "the deceased", which names a child by reference to his death, in this judgment I will refer to the boy who died on 11 January 2022 by the pseudonym “Ben”.

3. The accused's trial was originally listed to proceed on 17 July 2023, but it did not commence after the accused made an application to vacate it. He wished to secure expert evidence relevant to his state of mind at the time of the alleged offence, evidence which had not been secured in readiness for the first trial date. The trial listing was vacated, and a fresh trial dated of 6, although now 7, November 2023 was fixed.

4. By Notice of Motion filed on 30 October 2023, the accused seeks leave to make application for his trial to be heard before a judge sitting alone without a jury. The application for trial by that means was filed on 26 October 2023. The application is made pursuant to s 132(1) of the Criminal Procedure Act1986 (NSW), which is in these 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).

5. The leave of the Court is required because, as a matter of straightforward mathematics, the application for trial by judge alone was not filed within the time allowed by the legislation. The Crown opposes both the grant of leave and the substantive application.

6. The question of leave is to be determined by reference to the interests of justice. It will be dealt with at the end of these reasons since, to some extent at least, whether the application has merit, something that can only be determined after considering the substantive matter, is a relevant feature when deciding the issue of leave.

The Evidence

7. The accused read two affidavits from his solicitor, Mark Ramsland, affirmed, respectively, on 23 October 2023 and 30 October 2023. In his first affidavit of 23 October, Mr Ramsland provided some history of the proceedings. Of significance, at least to the question of leave, are the dates upon which expert reports were received by the accused's legal representatives, since it is that material which substantially underpins the judge alone application. Some five experts are expected to give evidence in the forthcoming trial, the evidence being directed to the question of the doli incapax presumption. A report from Katharine Cook, psychologist, was received by Mr Ramsland on 11 May 2023; whilst a forensic psychiatric report was received from Dr Gerald Chu on 8 July 2023. A third report, from Dr Emma Collins, forensic psychiatrist, was received on 23 September 2023. Of some relevance to that chronology is the fact that on 5 October 2023 the Associate to Sweeney J, who has been allocated to hear the accused's trial, contacted the parties advising them that her Honour would oversee the trial proceedings. The identity of the trial judge was thus known by that date, at a time when all medical reports that the accused sought had been received.

8. Additionally, the Crown had by that date served a report from Dr Andrew Ellis, forensic psychiatrist, prepared on 8 August 2023. Thereafter, the Crown obtained and served a report from Dr Susan Pullman of 13 October 2023. Mr Ramsland has annexed the reports of each of the experts. It is the complexity of this evidence to which the accused points as a significant feature of the trial militating in favour of trial by judge alone. It is necessary to go to that evidence.

9. Ms Cook is a clinical and forensic psychologist who saw the accused in a clinical setting after the events the subject of the trial. He attended some 19 sessions with Ms Cook between August 2022 and May 2023. Ms Cook recorded her impression of the accused as a boy of an appearance consistent with his age, who was engaged, talkative and appeared open to discuss his life. Ms Cook did not see anything to indicate thought disorder or disordered cognition. She observed nothing to suggest any concern as to thought processes, with no signs of delusion, paranoia, or indicators of risk of harm.

10. The accused described to Ms Cook intense confusion surrounding the incident the subject of the indictment, his subsequent arrest, bail conditions imposed upon him, and the subsequent relocation from the home of one parent to another. Ms Cook observed that the accused remained disconnected from any intense emotion associated with what had happened. Ms Cook thought that the accused displayed significant emotional immaturity, with what she regarded as a concerning lack of insight. She thought that the understanding of consequences of his actions and an inability to express or connect with difficult emotions were affected by that lack of insight.

11. It was Ms Cook's opinion that the accused is unable to process trauma symptoms. She observed that he has a strong ongoing belief that he may soon be incarcerated, and he remains emotionally "stuck" and does not have the range of emotional capacity of his contemporaries. Ms Cook believed the accused to have developed self-perception and self-talk that allowed him to feel safe in the world. She noted that what she called “tough talk” and a “lack of care” about himself are features likely to help the accused navigate any difficult relationships. She noted that this has, unfortunately in her view, also left the accused with complicated peer relationships, a lack of emotional maturity and poor insight. Ms Cook gave diagnoses of post-traumatic stress disorder and attention deficit hyperactivity disorder.

12. Dr Gerald Chu's report of 8 July 2023 is Annexure D to Mr Ramsland's first affidavit. Dr Chu assessed the accused at the request of his lawyers, seeing him on 22 July 2023 in an unaccompanied interview conducted via an audio-visual link. The doctor was appropriately briefed with relevant documentary material. He referred to both that material and his assessment of the accused in formulating his opinion.

13. During the assessment, the accused told Dr Chu that he was charged with murder, meaning that he had "killed him". The accused said that the alleged victim Ben was his good friend at the time of the incident. The accused said to Dr Chu that he had not wished to hurt Ben badly or to kill him and he really was not thinking about consequences at all at the time. The doctor asked the accused about the appropriateness of fighting. The accused responded that he thought it was fine and that was the way friends could sort things out.

14. Having obtained a history from the accused, Dr Chu noted that the accused presented with no abnormal psychomotor activity; he engaged freely and easily with the doctor; and his speech was of a normal rate, rhythm, prosody and volume. There appeared to Dr Chu to be no gross formal thought disorder or delusions. The accused was not overtly responding to non-apparent stimuli and there were no hallucinations apparent. The accused reported that his mood was "a bit down" and the doctor observed that the accused's affect was restricted. He was noted to be oriented to time, place, and person.

15. Dr Chu, having considered all the material provided to him and conducted his own assessment, opined that the accused has a number of salient psychiatric diagnoses, being post-traumatic stress disorder and attention deficit hyperactivity disorder. The doctor regarded these psychiatric diagnoses as making the accused more cognitively and emotionally immature than peers of his age.

16. Dr Chu went on to refer to research which shows that in 14-year-olds who have no psychiatric comorbidity of the type displayed by the accused there is "significant brain immaturity". The doctor said that early adolescence represents a phase of brain development which is characterised by increased impulsivity and sensation seeking, a developing ability to empathise, and heightened vulnerability to peer influence. Dr Chu observed that all these features have major impacts upon decision-making. He said that adolescents often have reactive and intense emotional responses to threatening or rewarding stimuli when compared with adults.

17. On the basis of his specific examination and informed by the general research to which he had referred, Dr Chu concluded that, whilst the accused knew his conduct on 11 January 2022 was wrong, he was not able to understand that the conduct was seriously wrong by normal adult standards. His brain and cognitive reasoning is immature by virtue of his age, according to the doctor, and made more immature by virtue of the accused's significant psychiatric comorbidity. Dr Chu observed that the accused displayed a heightened emotional response to the arguments and interactions with his peers; he displayed poor judgment, with a lack of ability to plan coherently, inhibit his impulses and think consequentially. Dr Chu expressed, properly, that, although it is a matter for the tribunal of fact, he was of the view that, because of the accused's age and the contribution of his psychiatric diagnoses, at the time of the alleged offence the accused was doli incapax.

18. The report of Dr Emma Collins of 22 September 2023 is Annexure E to Mr Ramsland's affidavit. Dr Collins saw the accused on two occasions, 9 August and 14 September 2023, over a total of four hours. She was also thoroughly briefed with relevant material, which she considered in the course of her assessment of the accused. Dr Collins interviewed the accused and she also administered psychological testing. She thought that the accused participated in the interviews with her satisfactorily, but she regarded him as struggling to discuss his emotions, which she thought impacted upon the assessment of his emotional experience. Despite that impact, she was of the view that there was still sufficient information regarding the accused's emotional functioning obtained from other sources to continue with her assessment and provide an opinion.

19. Dr Collins took a history from both the accused and his mother. She noted that the accused has experienced multiple problems across his schooling. She said that the accused is socially immature and typically acts in a "playful and impetuous manner". The doctor noted that the accused's academic performance has been affected by attention problems, with additional environmental factors compounding his progress. She thought that in a fostering, supportive environment the accused has performed well despite his distractibility. Where there have been peer dynamics, including bullying, his transition to high school was adversely affected and led to a negative escalating trajectory of reduced engagement, poor performance and conduct problems.

20. After considering the accused's clinical history, the doctor summarised that clinical history by concluding that it is evident that the accused does not have much emotional capacity to manage major stressors such as the separation of his parents, which occurred prior to the events of 11 January 2022. She thought that diagnoses of post-traumatic stress disorder and attention deficit hyperactivity disorder were appropriate.

21. On psychometric testing, the accused achieved a score on the verbal scale falling in the low average to average range of ability, meaning that he would outperform 25 per cent of a normative sample for his age. The accused's score on the non-verbal scale was contrastingly higher. The doctor observed that it fell in the superior to very superior range, with the accused outperforming 98 per cent of the age sample. She noted, however that, whilst cognitive testing does not indicate an intellectual disorder, other information is sufficient to confirm the diagnosis of post-traumatic stress disorder and attention deficit hyperactivity disorder. She noted that:

“It is evident that [IP] struggles with restlessness, inattention and trauma symptomology. In addition, he cannot recognise, interpret, or manage his emotions adequately, with bravado complicating his ability to acknowledge major distress.”

22. She concluded that the constellation of the accused's symptomology and maturation is relevant to his state of mind at the time of the offence, which she goes on to consider.

23. Relevant to the issue of doli incapax, Dr Collins observed that the accused is of at least average intelligence; although, with stronger non-verbal ability. She noted that there was no evidence of poor cognitive functioning. However, collateral information and test scores highlighted for Dr Collins the significant problems that the accused has with restlessness, inattention, impulse control, and emotional regulation. She thought that these difficulties could have affected the accused's capacity to process information, including consequential thinking, particularly when under heightened stress. She regarded the accused as emotionally stunted and his emotional functioning she thought to be more akin to someone considerably younger than his chronological age.

24. The doctor concluded:

“It is my view that [IP’s] maturity is below what would be considered typical for his age and the difficult relationship with his father has confused his identity development.”

25. She went on:

“[IP] displays poor emotional and behavioural regulatory skills. He is socially immature and his immaturity is further compounded by his neurodevelopmental ADHD symptomatology.”

26. She concluded that this means he is likely to react impetuously to events, with a reduced capacity to problem solve and manage situations as they present. The doctor opined that at a time of threat or stress the accused's already poor consequential thinking could deteriorate further. She concluded that, on the information available to her, there was a strong suggestion that the accused did not consider that his actions at the time, that is on 11 January 2022, were seriously wrong.

27. Dr Andrew Ellis saw the accused on 27 July 2023 for two hours, at the request of the Crown. The doctor is a forensic psychiatrist and, he notes, not a child psychiatrist. Dr Ellis, like all of the other experts consulted with respect to the accused, was exhaustively briefed. In addition to the material that he received from the Crown, he conducted an assessment of the accused, as I have observed.

28. The doctor took a history which was broadly consistent with those obtained by other medical professionals. He asked the accused about the fatal incident and recorded that the accused said it "just happened". The accused told Dr Ellis that he was not thinking about what would happen in the fight but just reacted. He had difficulty recalling the sequence of events and said that he did not know whether he had actually hit Ben with the knife at the time. He said that immediately after he used the knife he ran away. He told Dr Ellis that he did not know why he had used the word "stick" in conversation with others when referring to the knife that he had in his possession on this night.

29. Having conducted a mental state examination of the accused, Dr Ellis noted that there were no abnormal movements that suggested a neurological disorder. He observed the accused to be variable with his attentiveness, noting that the accused’s gaze wandered off; although, he was capable of being redirected. Dr Ellis thought that the accused showed a reasonable vocabulary and could use some abstract concepts, including an ability to define the term “metaphor”. There was no evidence of any form of thought disorder. The accused was alexithymic; that is, unable to describe his internal emotional experience. He could, however, be drawn on basic emotions expressed in a physical response. The accused was oriented to time, place, and person when Dr Ellis saw him.

30. Dr Ellis concluded, consistently with the experts to whom I have already referred, that the accused has a history and presentation consistent with a diagnosis of attention deficit hyperactivity disorder and that he would also meet criteria for post-traumatic stress disorder. Dr Ellis thought that the accused had a conduct disorder because of the significant onset of conduct problems from when the accused was aged about 12 onwards.

31. As to the doli incapax issue, Dr Ellis noted that general factors of childhood developmental maturation of the brain and its function are relevant. He thought it likely that the accused was doli incapax at the relevant time because the diagnosed conditions of attention deficit hyperactivity disorder and post-traumatic stress disorder were untreated. Dr Ellis said that those conditions would have had an impact upon the accused's decision-making capacity, particularly in a time of heightened emotional stress.

32. Dr Ellis also referred to the accused's emotional dysregulation, which he thought was relevant given that at times of such emotional dysregulation consequential thinking is impaired. Given that the accused has the two diagnosed conditions, and each can affect impulsive decision-making and more reflexive reactivity under situations of threat, Dr Ellis concluded that it was likely that at the time of the alleged offence the accused's ability to separate what the doctor referred to as the accused's natural instincts or regressive self-protective and impulsive reactions from considerations of serious wrongfulness would likely have been impaired.

26. Conversely, the doctor noted some features which were available on the evidence and could go to rebut the doli incapax presumption. The doctor noted that the accused had been exposed to a number of warnings regarding the illegality of knife use at school, in discussions with older boys, and with an older half-brother. The doctor thought that it was relatively self-explanatory that the use of a knife could cause serious harm and was within the ordinary cognitive capacity of a 13-year-old boy. Dr Ellis referred to evidence that the accused had conducted an internet search about stabbing some months prior to the relevant event; and observed that in a calm state of mind the accused's psychiatric conditions, coupled with his age and developmental experience, would not have likely impaired his ability to understand that fighting with a knife is seriously wrong behaviour with potentially serious consequences. Dr Ellis noted, however, that the issue was whether he would be able to retain this concept in his mind at a time when he was in an emotionally charged situation. The doctor referred to evidence of the accused hiding the knife which he took to the fight from his brother, and concealing it on his person prior to the fight, and suggested that these are features which potentially indicate the accused knew that bringing a knife to what was to be a fist fight was wrong. The doctor referred to that evidence as going to show some level of planning, deception and forethought. Further, the statements that the accused is said to have made as to his intention to use a knife and claim mental health problems if arrested showed a knowledge of wrongfulness and a disregard of consequences. Dr Ellis thought that the accused's use of the term "stick" to refer to a knife immediately after Ben was stabbed might also indicate a wish by the accused to minimise his actions and avoid detection for what he had done.

27. Weighing all the material that was available to him Dr Ellis observed that, from a psychiatric point of view, he leant towards retaining the presumption of doli incapax in the accused's case; although, there were, he said, some factors that cast doubt upon the presumption.

28. The final expert report is from Dr Susan Pullman, Annexure G to Mr Ramsland's affidavit. Dr Pullman is a forensic psychologist and a clinical neuropsychologist. She saw the accused at the request of the Crown. Her report is dated 13 October 2023. Dr Pullman saw the accused on 15 August and 28 August 2023. She was very comprehensively briefed and had regard to all the material supplied to her, together with a history she obtained from the accused and the results of her own assessment of him.

29. The doctor set out in a very thorough report her own summary of the material that she had been provided; but, if only for reasons of time, I do not propose to set her summary out in any detail except insofar as it is necessary when I come to other features of her report.

30. Of some note in Dr Pullman's report is the summary she provides of the statements obtained from teachers and a counsellor at the school that the accused formerly attended. The doctor noted that she had had access to school records concerning the accused which, as a general statement, observed that the accused was a capable student, although easily distracted during class. Dr Pullman considered statements from the principal of the accused's school, Ms Ann Vine; from his year adviser, Jessica Richmond; and a teacher, James Treece. Finally, Dr Pullman referred to what is described as a “long suspension report” prepared by a school counsellor, Ms Foubister, on 10 December 2022. That report appears in evidence adduced for the Crown and I will return to it. Dr Pullman had regard to the information contained within those statements and reports insofar as it set out the accused's performance and conduct at school and she referred to efforts taken by the school prior to Ben's death to address knife possession by students at school.

31. Dr Pullman administered a number of psychological tests to the accused, being the Weschsler Intelligence Scale for Children, the Controlled Oral Word Association Test, and the Rey Complex Figure Test. She found that the accused's Full-Sale IQ fell within the average range at the 45th percentile. His Verbal Comprehension Index measuring his word knowledge and verbal abstract reasoning fell within the low average range at the 18th percentile. His Visual Spatial Index fell within the average range at the 70th percentile. His performance on the Fluid Reasoning Index fell within the average range at the 66th percentile. The accused's attention and concentration were within the low average range and his overall Working Memory Index score fell within the average range. The accused's processing speed was also average, as was his executive functioning and higher order reasoning.

32. Having regard to all the tests administered by Dr Pullman and the results she obtained, the doctor observed that the accused's level of intellectual functioning falls within the average range consistent with age expectations. She said that his executive functioning or higher order reasoning skills fall within the average range, whilst his working memory, which is often significantly impaired in children or others with attention deficit hyperactivity disorder, was intact. She did note, however, that that does not mean that under heightened emotional states the accused's ability to focus would be similarly intact.

33. Dr Pullman reviewed the literature relevant to adolescent cognition and decision-making, which again I do not propose to summarise here for reasons principally connected with the shortness of time.

34. On the basis of her review of the literature and the material relevant to the accused, the doctor considered the features that were relevant to doli incapax. She referred to the accused's traumatic childhood circumstances, they being circumstances of violent parenting, and his experience of presenting a tough exterior at school to avoid being bullied. Dr Pullman said that it is possible that in a highly emotional state the accused was not thinking through the consequences of his actions but rather was attempting to appear "cool and tough" to prevent others from bullying or teasing him, without any intention of killing Ben or causing him serious harm. She noted that the accused's condition of attention deficit hyperactivity disorder would possibly exacerbate his response.

35. She noted statements from witnesses as to advice given to the accused not to bring a knife to a fight and observed that the witness statements suggested that the accused had been planning, or at least telling his school friends he was planning, to stab and kill the young man, Ben. Dr Pullman observed that the accused had been told if he stabbed Ben, he could kill him and go to gaol, and he had also been told that bringing knives to school was both serious and banned. The doctor said that at the age of 13 years and five months the accused had the cognitive capacity to understand that using a knife to stab a person could lead to serious harm and potential death and could result in the accused being imprisoned.

36. The doctor concluded that there are factors which suggest that the accused had an awareness that stabbing a person could cause serious harm when Ben was stabbed. She noted that he had the cognitive capacity at the age of 13 years and 5 months to understand that stabbing was seriously wrong and could result in him being imprisoned. She observed that, although the accused had the cognitive capacity to understand the serious wrongdoing of his actions, his ability to behave in accordance with that knowledge was likely, however, to have been significantly impaired in a heightened emotional state, particularly bearing in mind the effects of the diagnoses of attention deficit hyperactivity disorder and post-traumatic stress disorder.

37. In Mr Ramsland's second affidavit of 30 October 2023, he outlined what are understood to be the principal issues at trial, the most significant of which is whether the Crown can rebut the doli incapax presumption in circumstances where the diagnoses to which the doctors have attested, both of which are contended to have had an impact upon the accused's maturity and understanding, apply.

38. Mr Ramsland annexed to his second affidavit the long suspension report to which I have already referred. That was a report prepared by a school counsellor at the school the accused formerly attended. It records the dates of periods of suspension from school that were imposed upon the accused, together with details of the reasons for the suspensions. In each instance, the accused was suspended due to acts of violence or serious disobedience at school.

39. The current suspension, that is the suspension which resulted in the preparation of the long suspension report, was imposed on the accused on 18 November 2021 for physical violence after the accused repeatedly punched another schoolboy to the head and then is said to have "stomped" on the boy's head. At a meeting of the accused, his mother and school staff following the incident, the accused was noted to be “not remorseful”. He told those present that, although he would not in future in similar circumstances stomp on a person's head, he would "pick them up and slam them into the ground". The accused said that he had violent thoughts towards students at his school. He observed that, although he would not start anything, he would "use a knife from home if provoked". He told those at the meeting that he felt angry all the time and he took some apparent pride in the fact that other students found him intimidating.

40. The long suspension report noted four earlier suspensions from school for truanting and riding dangerously on a bicycle on the road on 15 February 2021, for verbal harassment and highly offensive racist conduct on 24 February 2021, for continued disobedience on 26 February that year, and for aggressive behaviour on 9 November 2021. At the meeting in December 2021, a plan for the accused's safe return to school was formulated.

41. Annexure D to Mr Ramsland's second affidavit is a report of data downloaded from the telephone of another school pupil who it is understood will be a witness at the forthcoming trial. The witness is the brother of the boy that the accused assaulted on 18 November 2021, leading to his suspension from school. The report records what appear to be text messages between the witness and the accused in which the boys exchanged threats and bad language, including messages in which the accused records his intention to "pull a blade" to deal with the witness. The accused taunted the other boy in the messages to come to his house, where upon he said that he would come out with a knife. There are something like 23 pages of these exchanges between the two boys.

42. That is the evidence adduced in support of the application, in summary form.

43. The Crown relies upon the affidavit of Amy Gilford affirmed on 30 October 2021. Ms Gilford produced an up-to-date Crown case statement which outlines the allegations against the accused. What follows is drawn from that document.

44. The accused and Ben were friends, but the relationship between the boys deteriorated to the point where they were exchanging messages about fighting each other in the period leading up to the fatal incident. Against that background, the accused told a friend that he wanted to stab and kill Ben and hurt him as much as possible.

45. Ben's older brother, having been told of the proposed fight between the two boys and of the accused's threat to stab Ben, exchanged a series of messages with the accused which included the following messages.

BROTHER: U gonna stab [Ben]

ACCUSED: Nip

ACCUSED: don’t know man

ACCUSED: probs not he’s just gotta find out

BROTHER: U are an idiot do u want to spend half ur life in prison because u want to stab someone at the age of 13

ACCUSED: watch what happens

53. Some further messages were exchanged before the accused messaged:

ACCUSED: Everyone wants to bash me I just want everyone to fuck off I stab him everyone will know I will do it to them next

54. There were then some further messages exchanged, after which the accused sent a message:

ACCUSED: i won’t stab him

BROTHER: u definitely will

ACCUSED: yeah i know

55. Later, after these messages and on the night of the pre-arranged fight, Ben left home to attend the fight. The accused sent Ben's older brother a photograph of a knife and a message similar to, "I'm ready". Just before he left home, the accused armed himself with a kitchen knife from his home. His older brother took the knife from him, telling him not to be "an idiot"; but the accused secretly retrieved the knife and left to go to the fight, taking the knife with him concealed in his clothing.

56. After the two boys met, there was some scuffling during which they threw punches at each other. Using the knife, the accused stabbed Ben twice to the chest and then ran home. One of the children who was present watching what was to be a fist fight between the boys filmed the incident on a mobile telephone. The footage is in the possession of the police and, presumably, will be played for the tribunal of fact at trial.

57. After the stabbing, the accused falsely told others that he had used a stick to stab Ben, one of the features referred to by the doctors as capable of going to rebut the doli incapax presumption. Although the children present at the fight as observers did what they could for Ben, the injuries that were inflicted on him included wounds to both lungs and to his heart, and they were not survivable. He was declared dead on arrival at hospital soon after.

58. Police were alerted to the fatal incident by a call placed by the accused's older brother to the emergency operator. On their arrival, officers were directed to the accused's home, where the accused told them that he had thrown the knife he had used into a neighbour's garden. It was recovered by police. The accused was arrested. He refused to be interviewed.

59. The Crown Case Statement, in addition to outlining those basic facts, outlines, further, the evidence upon which the Crown will seek to rely to rebut the doli incapax presumption. It includes the incident on 15 November 2021, to which I have already referred, when the accused is said to have assaulted another school boy, leading to his suspension from school. The allegation is that the accused grabbed the boy from behind, without warning, and threw him to the ground before punching the boy in the head and stomping on his head and neck twice. After the incident, the accused sent footage of the assault to a friend boasting about how “bad” he had “bashed [the boy] up”. His friend reproved the accused for what he had done. The exchange of messages between the accused and the brother of the boy who was assaulted, annexed to Mr Ramsland's second affidavit, occurred thereafter. After that incident, the accused is said to have become involved in other fights.

60. The Crown Case Statement refers to the accused's school record for year 7 in 2021, which describes the accused as a disobedient and disruptive boy with behavioural difficulties. Although he was reported to be good in the classroom and competent in literacy and numeracy, he was regarded as a C-average student.

61. A school friend told police that the accused regularly brought a knife to school in his school bag, and said that if anyone tried to hurt him, he would "stab them and go to gaol". It is said that he regularly sent photographs of himself armed with knives.

62. The accused's school addressed the issue of knives at school, as I noted when considering the report of Dr Pullman. The principal of the accused's school addressed the accused's class directly about the dangers and illegality of having knives, and the children were told that having knives could mean that they would go to gaol. A letter to similar effect is said to have been issued by the school. The Crown also points to the disposal of the knife by the accused and the apparent lies that he told about having used a stick to injure Ben rather than a knife, as evidence to rebut the presumption. In brief that is the evidence which is before the Court to assist it to determine the current application.

The Legal Framework

63. Turning to the law, criminal trials are ordinarily determined by a jury other than as provided for by Division 2 of Part 3 of the Criminal Procedure Act. I have referred already to the requirement for any application for a judge alone trial to be filed within a specified timeframe and, absent that, upon leave of the Court for such an application to be filed (s 132(1)). Pursuant to s 132(4) an order for a judge alone trial where the Crown does not agree with the proposed course, as here, can only be made if it is in the interests of justice to do so. Section 132 relevantly provides:

(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).

...

(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.

64. I interpose here to note that s 132(6) is clearly satisfied. The accused has the benefit of advice provided by both counsel and a solicitor or an Australian legal practitioner, and there is no suggestion that he has not received appropriate advice in that regard.

65. The principles that apply to consideration of the issue of trial by judge alone or trial by jury are well established. Historically a trial by jury has been held to be one with very significant advantages to an accused person. The advantages were outlined by the High Court in AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8, which itself is a decision drawing upon observations from Lord Devlin in a book, Trial By Jury. In that book Lord Devlin referred to the jury as “the lamp that shows freedom lives”. [1]

    1. Lord Devlin, Trial by Jury, (rev ed) (1966) at 164.

66. The advantages of a jury trial over a trial by judge alone from the perspective of an accused include what is said to be the superiority of a jury in assessing defence points, including those which might be unreasonable or without insight, and a jury’s asserted superiority in assessing the issues, informing the jury’s capacity to approach the law, including its capacity to return a perverse verdict, neither of which would ever be open to a judge.

67. Conversely it has been observed that jurors may be unused to the sort of tasks which consideration of evidence will require including bringing intellectual rigour to bear on complex evidence; juries may be unable to follow and recall evidence if given over an extended period. A juror may be unable to apply complex directions of law to evidence; and unlike a judge who is required by law to give comprehensive reasons for his or her decision including all law applied to facilitate appellate review, the verdict of a jury is regarded as entirely inscrutable.

68. The presumed advantages and disadvantages of a trial by jury were considered at length in the decision of R v Belghar [2012] NSWCCA 86.

69. It is important to bear in mind in determining the question of a judge alone trial the nature of the public interest which underpins the standard procedure of trial by jury. In a decision of Fittock v R [2003] 217 CLR 508; [2003] HCA 19 at [23], McHugh J referred to the function of a jury trial being to protect the citizen from the executive and judicial power of the Commonwealth by ensuring that trials on indictment will be determined by representatives of the community and were unanimous in the verdicts returned. Section 132 of the Criminal Procedure Act gives weight to the importance of the application of objective community standards in the resolution of a range of factual matters and particularly matters involving the application of community standards. Trials involving such matters are traditionally regarded as best heard by representatives of the community comprising a jury.

64. It has been observed by the Court of Criminal Appeal that the sort of cases where a judge alone trial might have to be favoured include very lengthy trials, complex trials involving significant disputes between experts, and trials where the evidence is such that there is a real concern an accused person could not secure a fair trial, perhaps because of a particularly horrendous crime which might be regarded as inflaming the prejudices of jury members. The courts have, however, consistently viewed that in the light of the importance of the role of the jury in our criminal justice system and bearing in mind the capacity of jurors to obey and apply directions given to them by a trial judge.

Determination

71. The task for the Court in determining this application is to apply the law to the circumstances established by the evidence. The issues for the determination of the tribunal of fact at trial will be:

1. Can the Crown prove the necessary intent to establish murder, beyond reasonable doubt;

2. Can the Crown exclude that the accused acted in self-defence; and,

3. Can the Crown rebut the doli incapax presumption.

72. Counsel for the accused concedes that the first two questions, that is proof of the necessary intent and the question of self defence, are matters that are ordinarily best determined by a jury. They involve determinations of fact and a jury made up of 12 members of the community is ordinarily best placed to resolve such matters.

73. It is the third question that in the accused’s submission gives rise to the need, in the interests of justice, for a trial by a judge sitting alone. The accused submits that the evidence to be given by the five experts, whose evidence I have set out, is complex and unlikely to be fully or properly understood by the ordinary citizen who would make up the jury. Further, some of the evidence upon which the Crown relies to rebut the doli incapax presumption is potentially prejudicial and may wrongly infect some of the jury against the accused. Notably this evidence is submitted to include the text messages in which the accused expressed himself by sometimes violent language and with sometimes violent intent, and the reports of earlier violence towards other school children which are encapsulated in the long suspension report.

74. The Crown submits that the expert evidence is generally consistent with no requirement for the tribunal of fact to resolve a dispute between experts, and the Crown argues that the evidence is not particularly complicated and such evidence is regularly considered by juries in criminal matters. As to any potential prejudice the Crown argues that a jury will be directed as to the use to be made of the evidence placed before it and can be expected to be capable of applying the directions of the trial judge.

75. As the accused concedes, two of the three significant issues for determination by the trier of fact are questions ordinarily best determined with community input in the form of a jury. The real focus of this application is on the third issue, the evidence relevant to the doli incapax presumption.

76. In my observation it does something of a disservice to the administration of justice in the criminal courts to proceed on the basis that juries are disqualified from hearing trial matters involving complicated evidence. Increasingly in the modern era evidence in criminal trials is complex. Evidence typically given in trials heard in this Court can include complex scientific evidence such as DNA evidence; blood deposition evidence which can involve the application of some physics to fully understand the mechanics described; the frequently difficult medical evidence relevant to causation; and evidence concerning any number or combination of psychiatric disorders which can also be complicated. Evidence of that nature is almost always difficult and yet juries regularly hear and determine trials where it is necessary to carefully consider such evidence and frequently in a context where there is a dispute between experts which the tribunal of fact is required to resolve.

77. The expert evidence here is generally to the same effect, with no disputes that will have to be resolved by the tribunal of fact. The question will be to apply the expert evidence to the issue of whether the Crown has rebutted the doli incapax presumption.

78. It is useful at this point to briefly refer to the presumption and how, as a general submission, it may be rebutted. Whilst the Court was referred to psychological literature which was summarised in a paper by H Dhanji SC (as his Honour then was), J Roy and S McLaughlin, “Proving the criminal responsibility of children: RP v The Queen” (Children’s Court of NSW Resource Handbook, Judicial Commission of NSW, last reviewed May 2023), the issue for determination by the tribunal of fact is a factual one and not a medical one. The High Court considered the doli incapax presumption in RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 and gave a statement of the operation of the principal and consideration of the sort of evidence required to rebut it. The High Court there said that the rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea - or the mental element of any offence. The presumption of doli incapax is rebuttable for children above the age of 10 by reference to evidence adduced to that purpose. The High Court observed at [9] that,

“From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was "seriously wrong" or "gravely wrong"5. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts” (footnotes omitted).

79. The High Court continued:

“The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised” (footnotes omitted).

80. At [12] the Court observed:

“What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not” (footnotes omitted).

81. The task for the tribunal of fact will be to consider the evidence led in the trial insofar as it informs the question of the rebuttal of the presumption in the way outlined by the High Court.

82. Having considered the reports of the five experts I do not consider the evidence each might be expected to give to be beyond the capacity of jurors to understand and apply. Firstly, it must be observed that the evidence will be led viva voce and not by the admission by tender of the individual witness’s report. It will be the responsibility of counsel, oversighted by the trial judge, to ensure that the evidence is led from the expert witnesses in a comprehensible form. That is always the obligation of counsel in any trial involving experts. It will be important to ensure that the experts express themselves in a way comprehensible to ordinary citizens without medical or psychological qualifications. In my experience that can be readily done as long as counsel are attentive to ensure that the evidence is placed before the jury in manner which is not overly technical.

83. It will always be open to the jury during the course of the evidence to ask questions of the trial judge if there be some aspect of the evidence which a juror or jurors do not understand. Jurors will no doubt be advised at the commencement of the trial proceedings that any member of the jury may submit a question if there is something that individual does not understand, and the trial judge bears the responsibility of ensuring that such questions are answered and a juror’s queries are resolved to the juror’s satisfaction. That process also will have a capacity to mitigate against any failure of understanding by an individual member of the jury or the jury collectively.

84. Any jury will be assisted, and I would think probably greatly assisted, by the submissions of counsel in closing address. In those submissions counsel have the capacity to bring together all of the relevant evidence, to place it before the jury in a logical and comprehensible sequence, and to explain the significance of individual pieces of evidence in the way that the particular counsel contends is of most relevance to the determination of the issues before the court. A closing address by counsel can be of immeasurable assistance to the jury in my experience and that opportunity will be there for both counsel for the Crown and counsel for the accused.

85. The trial judge also will have a responsibility and an opportunity to ensure that jurors are in a position to understand the evidence, understand the law, and to apply the latter to the former. There are standard directions that the trial judge must give to any jury in a matter where expert evidence is given and particularly where it is significant, and those directions can be quite extensive. If there is any question of the jury properly comprehending the evidence the capacity is there for the trial judge to ensure that the jury is able to follow the evidence of the experts.

86. Having considered all of those features I do not accept that the evidence of the experts will be so complex as to potentially place it outside the capacity of any juror to understand.

87. As part of the evidence relevant to doli incapax the jury will hear about the accused’s earlier behaviour including allegations of violent behaviour, and the jurors will see the evidence of the text exchanges between the accused and others, including the messages to which I have already referred, and those referred to by counsel for the accused in an exchange with a child to whom I will refer as JC, being text messages numbered 96, 116, 142, 156, 159 and 367 in annexure D to Mr Ramsland’s affidavit of 30 October. In part those messages reference blades or stabbing. The argument is that that evidence will be prejudicial in a way that no direction from a trial judge could adequately guard against. I do not accept that submission. The trial judge will be able to give the jury directions and very firm directions if necessary to ameliorate the possibility of prejudice occasioned by evidence of that nature. The courts must proceed on the basis that the jury will follow directions that are given. There are many authorities to that effect including 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.

88. I do not think it is beyond the capacity of a jury to put aside considerations of prejudice, whether sympathy or hostility for the accused, and consider the evidence insofar as it is relevant to the issue of doli incapax and in no other way. Juries, particularly in murder trials, regularly see evidence which could be regarded as prejudicial, but the criminal trial process has long established procedures for addressing any potential prejudice and there is no reason to conclude that those procedures could not properly apply on this trial.

89. Finally, there is the question, in determining this application, of the public interest in the involvement of the community in criminal trials. It has always been seen as one of the great strengths of our criminal justice system that the community plays an important and frequently determinative role in the administration of criminal justice. The courts operate in accordance with the principle of open justice and for most criminal proceedings trial courts are open to any member of the community who wishes to observe those proceedings. Trials involving children are not open in the same way because of the necessity of protecting a child, whether it is a child who is an accused or a child who is a witness, from identification. In this instance the trial court will be closed and there is in my view a countervailing importance for some community involvement to be preserved, insofar as that is reasonably possible consistent with the interests of justice.

90. There is in my observation a real benefit in 12 sets of life experiences, 12 sets of knowledge of the way the world works, and 12 sets of understanding of children and the way children operate being brought to bear on the issues to be determined in this trial. That is a benefit which I regard as much more comprehensive and of greater weight than the significance of one mind and life experience, albeit a mind and life experience trained to set aside considerations of prejudice and with a perhaps better grasp of medical terminology and evidence. The participation of the community in deciding a very important question and here, the liability of one child for the violent death of another child, is a matter of great moment. It is important to preserve the role of the community where that can be done commensurate with the interests of justice and, in this instance, I do not think the latter, the interests of justice, exclude the former, the participation of the community. A jury can determine the issues in question in this trial in my opinion, and in my view should do so.

Leave

91. That brings the Court to the question of leave. I observe at the outset the Crown opposes a grant of leave, pointing to the apparent tardiness with which the present application was made and in circumstances where four of the five reports of the relevant experts had been obtained at a relatively early stage.

92. It is the Crown’s submission that the overall chronology of this matter points to a conclusion that there is the appearance, I do not say the reality and I do not understand the Crown to say otherwise, but the appearance of what is commonly referred to as “judge shopping”. That is something which certainly this Court and, in my understanding, all courts are astute to prevent. In the Supreme Court there is a broad policy that applications for trial by judge alone which are put on after the identity of the judge has been made public will, firstly, be determined by a judge other than the allocated trial judge and, secondly, if the application is allowed, where it is possible in accordance with the Court’s resources and other commitments, the trial will be allocated to a different judge than the judge who was the trial judge at the time the application was filed.

93. In this instance the Court endeavoured to give effect to that policy by making available alternative judges to hear the trial. The parties were advised that, if the matter was to proceed as a trial by judge alone there were at least two other judges of the Division available to hear the trial, and it was likely that the trial would be reallocated. Notwithstanding that indication the accused persisted with his application. In my view that is a feature which decisively ameliorates the appearance of judge shopping. It is evident that the accused was content to proceed with his application whether the allocated trial judge heard the trial, or one of the other available judges of the Division heard the trial. That militates in favour of a grant of leave as does, to some extent, the age of the accused and the importance of the issues raised for the Court’s consideration. Whilst I note that the application has been late and probably later than it should have been, notwithstanding that, I propose to grant leave.

orders

94. Accordingly, the orders of the court will be these:

1. Leave is granted to the accused to bring his application for trial by judge alone.

2. The application is refused.

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Endnote

Amendments

23 September 2024 - [75] "trial" amended to "trier"

Decision last updated: 23 September 2024