R v Villalon

[2013] NSWSC 1516

Supreme Court

New South Wales

Medium Neutral Citation:

R v Villalon [2013] NSWSC 1516

Hearing dates:

15 October 2013

Decision date:

17 October 2013

Before:

Bellew J

Decision:

(1)I grant leave to the accused to make application pursuant to s. 132 of the Criminal Procedure Act for a trial by judge alone;

(2)I dismiss the application.

Catchwords:

CRIMINAL LAW - practice and procedure - application for trial by judge alone - where medical evidence supported the raising of the defence of substantial impairment by the accused - where principal issue whether impairment was so substantial as to warrant liability for murder being reduced to manslaughter - where assessment of that issue would require application of community standards - application refused

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:

Potts v R [2012] NSWCCA 229
R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
R v Bretherton [2013] NSWSC 1036
R v Hucker [2002] NSWSC 1068
R v Stanley [2013] NSWCCA 124
Ziah v R [2013] NSWCCA 27

Category:

Principal judgment

Parties:

Regina - Crown
Michael Villalon - Defendant

Representation:

Mr G Tabuteau - Crown
Mr P Winch - Accused
S Kavanagh Solicitor for Public Prosecutions - Crown
Legal Aid New South Wales - Accused

File Number(s):

2012 / 679960

Judgment

INTRODUCTION

1. Michael Villalon ("the accused") has pleaded not guilty to an indictment in the following terms:

"That he did, on 28 February 2012 at Mascot in the state of New South Wales, murder Keith Owen Chaney."

1. The trial is fixed to commence on Tuesday 22 October 2013.

1. By notice of motion dated 19 September 2013 the accused has made an application pursuant to s. 132 of the Criminal Procedure Act 1986 ("the CPA") that he be tried by a judge alone. That application has been opposed by the Crown.

1. Section 132 of the CPA is in the following terms:

132 Orders for trial by Judge alone

(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a "trial by judge order").

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(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.

1. Section 132A(1) of the CPA requires that except with the leave of the court, an application under s. 132 is to be made not less than 28 days before the date fixed for trial. The notice of motion in the present case was filed outside of that time period. However, the Crown does not oppose a grant of leave to bring the application.

1. The notice of motion is supported by an affidavit of Sophie Mae Williams, the solicitor for the accused, affirmed on 20 September 2013. Paragraphs 6 and 7 of that affidavit are in the following terms:

"6. It is anticipated that the primary issue at this trial will be whether the accused should be found not guilty of murder, but guilty of manslaughter, on the basis that he was substantially impaired at the time he killed the deceased, pursuant to s. 23A of the Crimes Act 1900 (NSW).

7. On 12 December 2012 (a solicitor employed by the Legal Aid New South Wales) wrote to Ms Carla Black, a solicitor employed by the Office of the Director of Public Prosecutions, indicating that the accused had instructed that he intends to plead not guilty to murder but guilty to manslaughter on the basis that he was substantially impaired at the time he killed the deceased, Keith Chaney."

1. Annexed to the affidavit of Ms Williams were three reports of specialist medical practitioners who, it is anticipated, will give evidence at the accused's trial. Those reports are as follows:

(i)   a report of Dr Westmore of 12 June 2012;

(ii)   a report of Dr Allnutt of 5 April 2013; and

(iii)   a report of Dr Furst of 15 September 2013.

1. The opinions of Drs Westmore and Furst are relied upon by the accused. The opinion of Dr Allnutt is relied upon by the Crown. I have made further reference to those opinions below.

1. The Crown tendered a copy of the transcript of the accused's interview with police, along with a copy of the statement of Detective Flood, one of the investigating police. The affidavit of Ms Williams and its annexures, along with the other material relied upon by the Crown, comprised exhibit A on the application.

THE CROWN CASE

1. The following summary is taken from the Crown case statement.

1. The accused was born in the Philippines on 29 August 1984. His parents are Maria Villalon and Francisco Villalon; Maria and Franciso separated some time prior to 1999.

2. In 1999 Maria Villalon travelled to Australia. In 2005 Maria was introduced to the deceased, Mr Keith Chaney, through a friend and they started dating soon after.

3. In 2006 the deceased purchased a house at 481 Gardeners Road, Mascot and both he and Maria moved in. In 2008 Maria returned to the Philippines as she was required by the Department of Immigration whilst her temporary visa application was under consideration. Maria then returned to Australia in 2009 after the visa was granted.

4. In April 2009 the accused and his sister Chelsy Villalon arrived in Australia to live with their mother and the deceased. The accused, the deceased and Maria lived inside the premises and Chelsy Villalon lived in the granny flat out the back with her boyfriend, Dandee Delacruz.

5. The accused returned to the Philippines in February 2011 but came back to Australia in October that same year.

6. On the morning of Tuesday 28 February 2012 Maria ate breakfast with the deceased and left home at about 6.55am to go to work. Maria finished work at about 4pm and caught the bus home. Maria got off the bus at approximately 5.30pm and walked to the house.

7. When Maria arrived home she saw that the front screen door of the premises was closed but unlocked and the wooden door was locked. It was daylight and there were no lights on inside.

8. Maria was unable to unlock the wooden door and knocked several times. She called the accused's mobile phone but received no answer. Maria then called the deceased's mobile phone and also received no answer. Maria states she then tried the back door but it too was locked, so she climbed in through a front window, gaining access by sliding the bottom half up.

9. Maria walked through to the kitchen area whereupon she noticed a broken figurine from a hallway cabinet lying on the floor. Maria turned the light to the kitchen on and saw the deceased lying on the floor with his head facing the back door. Maria stated she knew immediately that the deceased 'had already died' because she saw his face was covered in blood and a knife was sticking out of his eye.

10. Maria then saw the accused walk out of his bedroom and she screamed at him in Tagalog, "Why did you do this?" Maria then contacted the police.

11. Constables Beckman and Stewart were the first officers to arrive at the scene at approximately 6.30pm. Const. Beckman was met at the front door by Maria who was screaming on the telephone at the time. Const. Beckman stated that the house was extremely dark because all lights were off at the time, such that he was required to use his flashlight.

12. Const. Beckman walked through the living room area towards the kitchen and saw the accused standing in the doorway with his hands in front of his face, palms facing outwards. The accused was wearing only a pair of shorts at the time. Const. Beckman noticed cut marks to the accused's left wrist. He also saw a knife on the floor just behind the doorway where the accused was standing.

13. The accused moved towards Const. Beckman and it was then that Constable Beckman saw that the deceased had severe neck and facial injuries.

14. A crime scene was established and the accused was arrested and escorted to Mascot police station where he was charged with murder.

15. An autopsy identified a fatal stab wound to the face of the deceased which partially transacted the upper cervical spinal cord.

16. The accused was interviewed by police on 29 February 2012 in the course of which he made full admissions to stabbing the deceased in the chest and eye, as well as striking him with a figurine and a hammer.

THE MEDICAL EVIDENCE

Dr Westmore

1. Dr Westmore examined the accused (at the request of the accused's solicitors) on 7 June 2012 and provided a report of 12 June 2012. He diagnosed the accused as suffering from a psychotic illness. He said that the differential diagnosis would include a paranoid schizophrenic illness or psychosis, occurring in the context of a depression. Under the heading "Opinion" Dr Westmore said:

"Based on his history and the collateral history provided by his sister in particular as well as the clinical observations noted in the Justice Health file, I believe that Mr Villalon, on the balance of probability, was suffering from a psychotic illness at the time the homicide occurred.

The illness is likely to have been present for some time, certainly months, possibly years, further history would need to be obtained to clarify this.

He reports a range of symptoms which are likely to be of psychotic origin. I also note however, the history of antagonism and conflict which existed between Mr Villalon and the deceased. To what degree his paranoid illness contributed to these particular difficulties is also unclear at this time.

Mr Villalon appears to have had paranoid and possibly psychotic symptoms in relation to the deceased, this occurring on the background of conflict between them.

Mr Villalon was suffering from an abnormality of mind (a paranoid psychotic illness) at the time of the homicide. He could raise the defence of substantial impairment, although it will be a matter for the jury to determine whether or not he was substantially impaired at the relevant time."

Dr Furst

1. Dr Furst examined the accused (again at the request of his solicitor) and provided a report of 15 September 2013. Dr Furst noted that the history obtained by Dr Westmore was similar to that which he had obtained from the accused and under the heading "Opinion re diagnosis" Dr Furst said:

"Mr Villalon presents with features of a psychotic illness that include paranoid delusions, auditory hallucinations, mood disturbance, a decline in his level of psychosocial functioning, and odd somatic experiences, believing that a snake was crawling inside of his chest. The presence of those symptoms over at least several months was consistent with a primary diagnosis of schizophrenia, paranoid type.

Schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, prominent mood symptoms, and bizarre behaviour as a consequence of the illness. There is often a prodromal period in which individuals with the illness feel lethargic, depressed and unable to cope, resulting in disruption to family relationships and poor social functioning."

1. Dr Furst then set out the provisions of s. 23A of the Crimes Act 1900 (NSW) before continuing:

"In my opinion, his underlying schizophrenic illness probably impacted on his capacity to reason about his actions and their wrongfulness, meaning he may well have been substantially impaired at the time of the offence. He probably also lacked capacity to control himself by virtue of the perceived threats from the victim and his underlying condition in the form of schizophrenia.

The issue of substantial impairment by abnormality of mind as a defence to the charge of murder will be a question for the trial (sic) of fact to determine; however, there is little doubt that he was suffering from a serious mental illness at the time of the offence, which has persisted over the course of the last 18 months whilst remanded in custody and has required ongoing assertive psychiatric treatment."

1. Dr Furst then said:

"Mr Villalon has evidence of an apparent schizophrenic illness, which constitutes a disease of the mind in the McNaughten's sense. His illness may well have prevented him from reasoning about the wrongfulness of his actions with a moderate degree of sense and composure; however, his thinking of the period following the offence, including concerns about the reactions of his mother and police, suggests he retained some knowledge of the wrongfulness of what he had done. He was probably not acting in response to delusional ideation about the victim alone, as there were apparent threats and other actions from the victim towards the accused that were offensive, which were confounding factors. These factors include conflict between the accused and the victim at the time of the offence and preceding the offence, unwanted sexual advances, sexual advances towards his younger sister and the issues surrounding child pornography.

Mr Villalon may well have the mental illness defence available to him; however, this issue is less clear than the apparent presence of substantial impairment as a defence."

Dr Allnutt

1. Dr Allnutt examined the accused on 2 March 2013 at the request of the Crown and provided a report dated 5 April 2013. Under the heading "Opinion" Dr Allnutt said:

"In my view, having regard to the information provided to me in his presentation, it is more likely than not that the Defendant commenced experiencing psychotic symptoms a number of years ago, possibly at the time that he first attended at Maroubra Medical Services, and was manifesting symptoms of a developing mental illness; these symptoms impacted on his social, occupational functioning and interpersonal relationships - a differential diagnosis would include schizoaffective disorder, schizophrenia or psychotic depression."

1. In relation to the issue of substantial impairment, Dr Allnutt said the following:

"If it is accepted that at the material time, at least some of his beliefs about the Deceased were erroneous or distorted by a paranoid bias, then there are grounds to conclude that at the material time that the alleged offending occurred the Defendant was suffering from an ''underlying condition" (that is that he had a undiagnosed or early signs of a psychotic disorder); that as a consequence of his "underlying condition" he experienced a "abnormality of mind" (persecutory beliefs, referential thoughts, and auditory phenomena) around that time.

It is probable that his "abnormality of mind" impacted on his "capacity to understand events" making illogical an erroneous interpretation of some of the events relating to the Deceased, that led him to believe that the Deceased was conspiring with others to have him harmed in a serious manner; that the Deceased was putting various medications into the drinking water and milk attempting to harm his mother; and hearing a baby crying next door, or hearing a woman saying "help, help".

It is probable that these beliefs and perceptions would have contributed to a sense of justification with regard to his attack on the Deceased, driven by underlying feelings of anger, fear, and indignation at what he perceived at (sic) provocative behaviour on the part of the Deceased; on this basis he would be regarded as compromised in his "capacity to judge right from wrong", but this capacity was not completely negated, given evidence of knowledge of wrongfulness immediately afterwards.

If the course of events as described by him are accepted as fact, it would be reasonable to conclude that he was impaired in his "capacity to control his actions", given a combination of both real and distorted experiences in his relationship with the Deceased; that is, that both actual events and symptoms of mental illness would have contributed an exaggerated response to the interaction that occurred between he and thee Deceased just prior to the alleged offence.

On this basis I believe there are reasonable grounds to conclude that he has a defence of "substantial impairment" available to him.

In my view based on the information provided to me, he would also be regarded as having a "disease of the mind", namely schizophrenia with active symptoms of psychosis at the material time, causing a "defect of reason" (making irrational interpretations about the nature of his relationship with the Deceased believing the Deceased to be harming him) but it is likely that he would have been capable of knowing the nature and quality of his actions."

1. Finally, Dr Allnutt said:

"My preference is for a defence of substantial impairment - his abnormality of mind made him vulnerable to acting in an impulsive and aggressive manner towards the deceased, with loss of control, as a consequence of an exaggerated perception of the Deceased's intentions towards him."

THE ISSUE AT TRIAL

1. It is apparent from the medical evidence that the principal issue at trial will arise from s. 23A(1) of the Crimes Act 1900 (NSW). That section provides a partial defence to an offence of murder and is in the following 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.

1. As detailed further below, it is unlikely that there will be an issue that the accused was suffering from an impairment within the terms of s. 23A(1)(a). There is, however, likely to be an issue as to whether the extent of that impairment was such as to fall within the terms of s. 23A(1)(b).

THE RELEVANT PRINCIPLES

1. In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 McClellan CJ at CL (as his Honour then was), having undertaken an exhaustive review of the authorities, distilled a number of considerations relevant to an application for trial by judge alone. Those principles may be summarised as follows:

(i)   although s 131 provides for trial by jury "except as otherwise provided", the section does not have the effect of creating a presumption that the trial should be with a jury, thereby casting a burden of proof on an accused person (at [96]; 25);

(ii)   although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a presumption of trial by jury is displaced. Given that each mode of trial has its particular characteristics, and depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury (at [96]; 25);

(iii)   subsection 132(5) acknowledges that when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople (at [96]; 25);

(iv)   the legislation does not require weight to be otherwise given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers that it is in the interests of justice to make the order (at [96]; 25);

(v)   the subjective views of an accused, and his or her belief that a jury trial may not be fair (as reflected in his or her desire to dispense with a jury) is a relevant factor to consider. However, the fact that an accused person desires a trial by judge alone is not as significant as the reasons for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial (at [99]; 26 and [102]; 26-27);

(vi) Parliament has made plain by the enactment of s. 132(5) that it would be preferable in the interests of justice that there should be a trial by jury where an alleged offence involves the application of objective community standards (at [100]; 26);

(vii)   the granting of an application which is based upon the mere apprehension of prejudice in prospective jurors, and which is not based on evidence or a matter of which the court may take judicial notice, is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict (at [102]; 26-27);

(viii)   it is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result (at [107]; 27-28)

THE SUBMISSIONS OF THE PARTIES

1. Counsel for the accused advanced four propositions which underpinned the application. They were as follows:

(i)   there was no real divergence in the medical evidence;

(ii) the medical evidence overwhelmingly favoured the conclusion that there was a substantial impairment to the accused's capacity in one or more of the senses contemplated by s. 23A(1)(a);

(iii) the only possible issue in the trial was whether the impairment extended to the level contemplated by s. 23A(1)(b); and

(iv)   the evidence left no room for any verdict other than that the accused was not guilty of murder but guilty of manslaughter by reason of substantial impairment.

1. With these matters in mind, counsel submitted that in circumstances where the primary issue centred upon the accused's culpability, a trial by a judge alone was appropriate because questions of culpability were routinely determined by judges on sentence. This, it was submitted, meant that a judge was well placed to make such a determination.

1. Secondly, counsel submitted that leaving the matter to a jury to determine would give rise to the possibility of a perverse verdict, and that it was in the interests of justice to grant the application so as to limit, or perhaps eliminate, that possibility, and to overcome the Crown's decision not to accept a plea of manslaughter. In developing that submission, counsel argued that it should not be assumed that the law operated in such a way as to compel the involvement of a jury in a process which may result in an unjust outcome.

1. In this regard counsel referred me to the decision of Howie J in R v Hucker [2002] NSWSC 1068. In that case, the accused's plea of guilty to manslaughter in reliance upon substantial impairment had been rejected by the Crown. Almost at the end of the defence case, the plea was accepted. His Honour proceeded to express his view that a finding that the accused was guilty of manslaughter was the only conclusion which was supported by the evidence. As I understood it, counsel for the accused in the present case relied upon his Honour's observations as confirmation of the fact that there will be circumstances where the issue of culpability is so clear that the proper course is to accept a plea of guilty to manslaughter. Counsel submitted that the present was one such case, and that this was a factor which favoured the making of the order sought.

1. The Crown accepted, as I understood it, that the medical evidence supported the conclusion that the accused was suffering some impairment at the relevant time. However, the Crown took issue with the assessment of the medical evidence which had been advanced on behalf of the accused. In particular, the Crown took issue with the proposition that the evidence was such that it only supported one verdict, namely that the accused was guilty of manslaughter. The Crown stressed that the extent of the accused's impairment, and in particular whether such impairment extended to the circumstances referred to in s. 23A(1)(b), would be very much an issue in the trial.

1. The Crown submitted that this was not a case where the medical evidence was such as would render unjust a verdict that the accused was guilty of murder. The Crown submitted that it would be open to a jury to find on the evidence that any impairment was at the lower end of the scale, and not to the extent contemplated by s. 23A(1)(b).

1. The Crown further submitted that no relevant analogy was able to be drawn between the present situation and the role performed by a judge in assessing the culpability of an accused for the purposes of sentence. It was further submitted that the issue for determination in the trial was intrinsically one for a jury, and that such a conclusion was consistent with the intention of the Parliament when enacting s. 23A. In this regard, the Crown referred me to aspects of the second reading speech to that enactment, where the then Attorney-General was recorded as saying:

"Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person...

In coming to its verdict the jury brings to bear the community's collective wisdom and its sense of justice."

1. The Crown further submitted that the issue raised by s. 23A(1)(b) would necessarily involve the application of a community standard and that this was a factor which favoured a trial by jury. In this respect he referred, in particular, to the observations of Macfarlan JA in Ziah v R [2013] NSWCCA 27 where his Honour said (at [76]):

"The appellant complains that the trial judge's direction to the jury to apply "the community standard" when considering whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)) was erroneous. I do not agree. In directing attention to how an "ordinary person" would act, that paragraph clearly requires consideration of community standards."

1. Similarly, the Crown relied upon the observations of Johnson J in Potts v R [2012] NSWCCA 229 where his Honour said (at [33]):

"It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact:"

CONSIDERATION AND CONCLUSION

1. It may well be the case that the ultimate issue in the trial centres upon the accused's moral culpability. It may also be the case that assessments of culpability are routinely made by judges on sentence. It may follow from those circumstances that it would be suitable for a judge to determine the issue. However, the question is not whether the circumstances of the case are "suitable" or "appropriate" for the making of an order that the trial proceed before a judge alone. The question is whether or not it is in the interests of justice to do so.

1. In my view, and on the basis of the medical evidence before me, it would be open to a jury to conclude that the accused was suffering from an impairment at the time of killing the deceased. I did not understand the Crown to argue to the contrary. However, there is necessarily a remaining issue as to whether or not such impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Ultimately, the evidence may be capable of establishing that fact. However I am not able, for a number of reasons, to accept the submission of counsel for the accused that the evidence is such as to leave no other finding reasonably open and that it is consequently in the interests of justice to order that the trial proceed before a judge alone.

1. Firstly, and fundamentally, the medical evidence which has been placed before me on this application is obviously in the form of reports. None of the medical practitioners have been cross examined. Whilst there is unanimity of opinion between the experts that it is open to the accused to raise the issue of substantial impairment, whether that defence is ultimately made out is a determination which can only be made on the whole of the evidence. Unlike Howie J in Hucker (supra) I have not heard the whole of the evidence, or indeed anything approaching it. As a consequence, I am not in a position to determine whether, as counsel suggested, this is a case in which the only possible outcome is that the accused will be found not guilty of murder but guilty of manslaughter.

1. Secondly, for similar reasons, I am not able to accept the submission that an order for a trial by judge alone is necessary to overcome the possibility of a perverse verdict being returned by the jury. Such a submission is burdened with a number of difficulties. Firstly, it proceeds on an assumption that the evidence is capable of supporting only one verdict. For the reasons I have already outlined, I am not in a position to determine whether that is the case. Secondly, it disregards the assumption to which McClellan CJ at CL referred in Belghar (supra at [102]; 26-27) that jurors will understand and obey the directions of the trial judge. Thirdly, it disregards the further assumption to which his Honour referred (at [107]; 27-28) that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result.

1. I am also unable to accept the proposition that the order sought is necessary to, in effect, overcome a decision by the Crown to reject the plea of manslaughter. Doubtless there are cases where the issue of substantial impairment, and the evidence in relation to it, are so clear that it is proper to accept a plea of guilty to manslaughter. Hucker (supra) was obviously such a case although as I have already noted, the observations of the trial judge were expressed with the advantage of having heard almost the entirety of the evidence. In the absence of hearing all of the evidence, it is not possible for me to determine whether the present case falls into the same category. In any event, I do not consider that my role in determining the present application extends to supervising the Crown's exercise of its prosecutorial discretion.

1. I have identified the principal issue in the trial above (at [31]). In my view, that is an issue which will be informed by the application of an objective community standard. I am fortified in that view by the observations of Harrison J in R v Bretherton [2013] NSWSC 1036 at [25]:

"The interplay between s 23A(1)(b) and (2) is important. The terms of s 23A(2) make it plain that the decision called for by s 23A(1)(b) is not in fact a medical or technical decision, even if the decision itself is likely, if not certainly, to be one that will have been informed by evidence of that type or character. Section 23A(2) makes it plain, as the Second Reading Speech was at pains to emphasize, that the factual matter requiring determination is at large, and is not in any way to be constrained or limited by expressions of opinion about it. It is abundantly clear that the opinion is one that calls up consideration of an objective community standard, being whether the extent of the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. That is a question upon which minds may differ, but is nevertheless an evaluative question that cannot, and ought not, be foreclosed."

1. Consistent with these observations, the jury will be directed that the issue raised by s. 23A(1)(b) is a matter for them to decide by the application of standards which they regard as prevailing in the community. McClellan CJ at CL pointed out in Belghar (supra at [96] 25) that in such circumstances the interests of justice may be best served by utilising a jury of laypeople. Similar observations were made by Barr AJ in R v Stanley [2013] NSWCCA 124 at [28]:

"I accept that the fact alone that community standards must be applied in the resolution of factual issues does not mandate trial by jury but, as subs (5) makes clear, it is a circumstance in which the jury may be considered to be the superior tribunal of fact."

1. For all of these reasons, I am not satisfied that it is in the interests of justice that the application for trial by judge alone be granted.

ORDERS

1. I make the following orders:

(1) I grant leave to the accused to make application pursuant to s. 132 of the Criminal Procedure Act for a trial by judge alone;

(2)   I dismiss the application.

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Decision last updated: 24 July 2014