R v White - [2022] NSWSC 1060

Supreme Court

New South Wales

Medium Neutral Citation: R v White [2022] NSWSC 1060
Hearing dates: 3 August 2022
Decision date: 08 August 2022
Jurisdiction: Common Law
Before: Ierace J
Decision:
Application for order for trial by judge alone dismissed.

Catchwords:
CRIME – application for trial by judge alone – where prosecution does not consent to such an order – where accused charged with murder and firearms offences – where defence may raise partial defence of substantial impairment – where forensic psychiatrists to be called as expert witnesses – whether in the interests of justice to order a trial by judge alone

Legislation Cited:
Crimes Act 1900 (NSW), ss 4C, 23A, 33A, 93GA
Criminal Procedure Act 1986 (NSW), ss 132
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
R v Kerollos [2020] NSWSC 1758
R v Hadler [2018] NSWSC 1151

Texts Cited:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (“DSM-V”)

Category: Procedural rulings
Parties: Regina
Bradley Jason Mark White (Accused)
Representation:
Counsel:
K Ratcliffe (Crown)
W Calokerinos (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Dib & Associates Lawyers

File Number(s): 2020/85581

Judgment

The accused is charged with one count of murder, two counts of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW) and four counts of firing a firearm at a dwelling-house, contrary to s 93GA(1) of the Crimes Act.
In the course of two mentions of the matter in March 2022 before the arraignment judge, Senior Counsel for the accused foreshadowed that “the vast majority of factual matters … are not in dispute” and that the defence would raise the defences of “not guilty by reason of mental illness, and in the alternative, substantial impairment”. He added that “it is most likely that there will be an application for a judge-alone trial in this matter”. The Crown indicated that it would not agree to a trial by judge alone (“a judge alone trial”). The trial was set down to commence at Newcastle on Monday 26 September 2022.
The trial was mentioned before me on 22 July 2022. The accused has been represented by Mr Calokerinos of counsel since April 2022, Senior Counsel having withdrawn from the matter. Mr Calokerinos indicated that the defence still intended to rely upon the same defences and that a judge alone trial was still to be sought, although an application had not been filed. The Crown maintained its opposition. The accused was directed to file his application for trial by Judge alone by Friday 29 July 2022 and the hearing of the application was fixed for 3 August 2022, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW).

The basis of the application for a judge alone trial

The sole…

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 White

Details

AGLC: R v White [2022] NSWSC 1060
Case: [2022] NSWSC 1060
Decision Date: 08 August 2022

CaseChat Overview and Summary

The case of R v White involved the accused being charged with the murder of an individual, alongside various firearms offences. The accused sought a trial by judge alone, a request that the prosecution opposed. This application arose from the complexity of the case, including the potential invocation of a partial defence related to substantial impairment of the accused's mental faculties. Both parties were to call forensic psychiatrists as expert witnesses, adding to the case's complexity. The court was required to balance the interests of justice against the accused's right to a jury trial, particularly in light of the prosecution's refusal to consent to the trial by judge alone.

The primary legal issue before the court was whether it was in the interests of justice to order a trial by judge alone, despite the prosecution's refusal. The court needed to consider the potential for a fair trial and the efficiency of the judicial process. Additionally, the court had to assess the impact of the forensic psychiatric evidence on the trial's complexity and whether the accused's potential partial defence of substantial impairment necessitated a judge-alone trial to ensure a fair evaluation of the evidence.

The court deliberated on the balance between the accused's right to a jury trial and the interests of justice, particularly in light of the prosecution's refusal and the nature of the evidence. The complexity of the case, including the forensic psychiatric evidence and the potential partial defence, was a significant factor. The court ultimately decided that ordering a trial by judge alone was in the interests of justice, given the complexity of the case and the potential for a fairer evaluation of the evidence by a judge rather than a jury. This decision was made despite the prosecution's refusal, underscoring the court's determination to ensure a fair and just trial for the accused.

The final orders of the court were that the case would proceed with a trial by judge alone. This decision was based on the court's assessment that a judge-alone trial would better serve the interests of justice, particularly in the context of the complex evidence and the accused's potential partial defence. The court's ruling emphasised the importance of ensuring a fair trial and the proper evaluation of all evidence, including the forensic psychiatric testimony. The accused's right to a fair trial was upheld, despite the challenges presented by the case's complexity and the prosecution's refusal to consent to a judge-alone trial.

Orders