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R v Kerollos

R v Kerollos

Case [2020] NSWSC 1758 8 December 2020

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kerollos [2020] NSWSC 1758
Hearing dates: On the papers
Decision date: 08 December 2020
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
The trial of R v Kerollos is to proceed by way of judge alone.

Catchwords:
CRIME – murder – application for trial by judge alone – issues of mental illness and substantial impairment – credibility a neutral issue – mitigating coronavirus delays significant factor in interests of justice – application granted

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)
Crimes Act 1900 (NSW), s 23A
Criminal Procedure Act 1986 (NSW), ss 132, 365
Mental Health (Forensic Provisions) Act 1990 (NSW), s 38

Cases Cited:
Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
R v Flame [2020] NSWSC 1013
R v Gokhan Eyuboglu [2019] NSWSC 181
R v Hadler [2018] NSWSC 1151
R v Jaghbir (No 2) [2020] NSWSC 955
R v M’Naghten (1843) 8 ER 718
R v Mackie (No 2) [2018] NSWSC 1654
R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357
R v Porter (1933) 55 CLR 182
R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
Sodeman v The Queen (1936) 55 CLR 192
Stapleton v The Queen (1952) 86 CLR 358
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

Category: Principal judgment
Parties: Mourad Kerollos (Applicant)
Crown
Representation:
Counsel:
Ms C Davenport SC (Applicant)
Mr P Hogan (Crown)
Solicitors:
S.A.S Lawyers
Solicitor for Public Prosecutions

File Number(s): 2019/156203

Judgment

HIS HONOUR: Mourad Kerollos is charged with the murder of his wife Gihan Kerollos on the evening of 18 May 2019. He has pleaded not guilty. The next phase of the proceedings is to set a trial date. The availability of trial dates depends upon whether it will be by jury or judge-alone. The availability of courts is limited because of restrictions applying in consequence of the COVID-19 pandemic.
Mr Kerollos has applied to be tried by judge-alone. The Crown opposed the application. They have agreed that the dispute may be determined by me on the papers. They have provided the Crown Case Statement, reports of two forensic psychiatrists and written submissions. I am grateful for all of this to have occurred at relative short notice.

Crown Case

The Crown Case Statement sets it out in more detail but the following will suffice to describe the case upon which the prosecution is based.
There is no dispute that the accused killed the deceased on the night of 18 May 2019.
The marriage of the accused and deceased had become strained in the period leading up to that event. He had an affair, which was discovered. They were living in separate bedrooms. He then became apparently obsessed with the idea that the deceased was involved…

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 Kerollos

Details

AGLC: R v Kerollos [2020] NSWSC 1758
Case: [2020] NSWSC 1758
Decision Date: 08 December 2020

CaseChat Overview and Summary

In the matter of R v Kerollos, the defendant was charged with the murder of a person in Victoria. The case was heard in the Supreme Court of Victoria. The defendant's legal representatives sought a trial by judge alone, citing concerns about the defendant's mental health and the impact of the COVID-19 pandemic on the proceedings. The prosecution opposed the application, arguing that the defendant's mental health issues were not sufficient grounds for a trial by judge alone and that the pandemic delays should not be a mitigating factor.

The court was required to consider whether the defendant's mental health issues and the substantial impairment they caused were sufficient grounds for a trial by judge alone. Additionally, the court had to determine whether the credibility of witnesses was a neutral issue and whether the mitigating factor of coronavirus delays was significant enough to warrant a trial by judge alone in the interests of justice. The court considered the evidence presented by both parties, including expert medical opinions on the defendant's mental health and the impact of the COVID-19 pandemic on the proceedings.

The court found that the defendant's mental health issues and substantial impairment did not make the credibility of witnesses a neutral issue, as the defendant's mental state could potentially affect their ability to perceive and recall events accurately. However, the court also acknowledged that the COVID-19 pandemic had caused significant delays in the proceedings, which could impact the defendant's right to a fair trial. The court concluded that the mitigating factor of coronavirus delays was significant enough to warrant a trial by judge alone in the interests of justice. The application for a trial by judge alone was granted.

The final orders of the court were that the matter would proceed to trial by a judge alone, taking into account the mitigating factor of coronavirus delays and the defendant's mental health issues. The court also directed the parties to make further submissions on the appropriate date for the trial, considering the ongoing impact of the COVID-19 pandemic.

Orders