The State of Western Australia v Cameron
[2024] WASC 37
•20 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CAMERON [2024] WASC 37
CORAM: MCGRATH J
HEARD: 19 FEBRUARY 2024
DELIVERED : 19 FEBRUARY 2024
PUBLISHED : 20 FEBRUARY 2024
FILE NO/S: INS 38 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CALLUM JAMES CAMERON
Accused
Catchwords:
Criminal procedure - Accused's application for trial by judge alone - Murder - Intoxication - Whether had capacity to form intent - Expert psychiatric evidence - Expert toxicology evidence - Whether objective community standards required in circumstances - Turns on own facts
Legislation:
Criminal Code (WA), s 27, s 28, s 279
Criminal Procedure Act 2004 (WA), s 118
Result:
Application for trial by judge alone granted
Category: C
Representation:
Counsel:
| Prosecution | : | Ms K Robinson |
| Accused | : | Ms H E Prince |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Arthurs v The State of Western Australia [2007] WASC 182
Bell v The State of Western Australia [No 2] [2014] WASC 260
Chiha v The State of Western Australia [No 2] [2015] WASC 147
Hone v The State of Western Australia [2007] WASCA 283
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Marotta v The State of Western Australia [2018] WASC 141
Steele v The State of Western Australia [2018] WASCA 133
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v Daly [2019] WASC 386
The State of Western Australia v Davidson [2022] WASC
The State of Western Australia v Dent [2023] WASC 69
The State of Western Australia v Evans [2012] WASC 87
The State of Western Australia v Haast [2020] WASC 161
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Lang [No 2] [2016] WASC 206
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v McDonald [2010] WASC 304
The State of Western Australia v Pal [2023] WASC 157
The State of Western Australia v Shayler [2019] WASC 86
The State of Western Australia v Siddique [No 2] [2016] WASC 358
The State of Western Australia v Stefanski [2015] WASC 371
The State of Western Australia v Strabach [2012] WASC 97
The State of Western Australia v Tarau [2005] WASC 290
The State of Western Australia v Ugle [2018] WASC 337
The State of Western Australia v Wark [2017] WASC 154
The State of Western Australia v Zahidi [2023] WASC 359
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
MCGRATH J:
The applicant, Mr Cameron, has been indicted on one count, namely that on 10 August 2020 he murdered Ms Carol Ann Cameron, his mother, contrary to s 279 of the Criminal Code (WA).[1] Mr Cameron has pleaded not guilty to the count and is proceeding to trial.
[1] Indictment dated 3 November 2022.
Mr Cameron applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), for his trial to be heard by judge alone without a jury.[2]
[2] Application dated 3 February 2024.
The basis for the application is that it is in the interests of justice to grant an order for a judge alone trial. Whilst the issue at trial is most likely whether the accused had the requisite specific intention for the offence of murder, complex evidence will be given by psychiatrists and toxicologists concerning the mental health history of the accused and his consumption of substances. The trial may require a consideration of s 27 and s 28 of the Criminal Code. In addition, the accused contended that the killing of the deceased occurred in confronting circumstances which would cause significant prejudice to the accused at trial.
The State consents to the application by the accused, however, that is not determinative of the application.
For the following reasons, I have determined that it is in the interests of justice that Mr Cameron be tried by judge alone and therefore, I exercise my discretion to so order.
In my reasons, I will consider the following:
(a)The nature of the State's case;
(b)Legal principles relevant to an application under s 118 of the CPA; and
(c)An evaluation of the interests of justice in the application.
The State's case
The State's case is outlined in the Statement of Material Facts that forms part of the brief of evidence that has been filed. The facts are in the following terms:
The accused (27) is the son of the deceased, Ms Carol Ann Cameron (63 years).
At the time of the offence, both were residing at 43 Palmerston Street, St James, together with the accused's father/Ms Cameron's partner Chris Hancock.
At about 2 am on 10 August 2020, Ms Cameron called 000 to request an ambulance for the accused, who had overdosed on drugs.
Ambulance officers attended a short time later. Ms Cameron waited for them by the front door. She advised them that the accused had taken Ayahuasca (a plant-based psychedelic) that night and had taken too much. He was acting 'weird', and she was concerned about this behaviour. She led ambulance officers Bowring and Vincent to a bedroom at the end of the hallway.
The accused was lying on his bed, rubbing his head into his pillow, and was unresponsive to the ambulance officers. Ms Cameron advised that the accused had experienced many drug-induced psychoses before, and earlier that night had taken Ayahuasca - which he had taken before but not as much - as well as Lorazepam and Olanzapine.
The accused suddenly sat up, with his pupils dilated and expression vacant. Ms Cameron assisted him with drinking some water. The accused lay back down on his bed. Ambulance Officer Vincent said they could take the accused to hospital if he was willing to come. Ms Cameron encouraged the accused to get up. As she was doing so, the ambulance officers went outside to the parked ambulance to get the stretcher. Back inside the unit they decided to request police assistance.
Ms Cameron and the accused were talking in the kitchen, and then walked past Bowring in the loungeroom, with Ms Cameron encouraging the accused to move to the front door. The accused was reluctant and lay down on the sofa in the lounge room, with his face in the cushions and bum up in the air.
Ms Cameron continued to encourage the accused to go with the ambulance officers. The accused got up and walked into the kitchen area, followed by Ms Cameron, out of sight of the ambulance officers. The conversation between the accused and Ms Cameron became more agitated, with Ms Cameron encouraging the accused to go with the ambulance and the accused telling her to 'fuck off'.
There was a sound as if from cutlery, and Ms Cameron shouted 'no, no, don't, stop'. Ms Cameron was screaming for help and crawling away, as the accused stabbed her repeatedly with a knife. The ambulance officers retreated to the ambulance and activated 'Code Black', requesting Priority One Police.
Senior Constable (S/C) Emery from the Canine Section, who was on patrol with his police dog, was the first on the scene and entered the house with his firearm drawn and Body-Worn-Camera activated. Ms Cameron was lying on the floor of the living room, with a large amount of blood around her. S/C Emery moved on to the games room at the end of the hallway, where he located the accused who was sitting on a couch, with his feet on the coffee table and being 'remarkably calm'. S/C Emery instructed him to hold out his hands, which the accused complied with. S/C Emery saw a small red knife resting on the accused's stomach. The accused had blood on his hands. Two other police officers entered and tried to arrest the accused, who was struggling and trying to break free. The accused was finally arrested with the assistance of several police officers, and the use of a taser and a baton.
The accused was escorted out of the house into a waiting ambulance. He was screaming for help and for the police. On his way to Fiona Stanley Hospital he appeared subdued but asked a couple of times if his mother was okay and if he was in trouble. At Fiona Stanley Hospital the accused was handcuffed to a bed. He spoke to his father several times on the phone. When S/C Mann started speaking to him the accused began to cry, yell and wail. He said he had killed his 'mum', he wanted a hug, he woke up and had a knife in her chest. He said he had not used 'meth' for nine months and had just got his life back on track.
He was taken to Perth Watchhouse after his release and participated in a no comment interview.
Ms Cameron was declared deceased at 4:05 am on the same day at Royal Perth Hospital. The cause of death was identified as multiple sharp force injuries (stab wounds).
The following stab wounds were observed on the deceased during post-mortem examination:
17 penetrating wounds to face and neck, including a penetrating wound to the right side of the chin with a wound track which ran through the skin, adipose tissue, muscle and ending in the soft tissue on the right side of the neck.
Three penetrating wounds to the right upper arm, and four superficial incised wounds to the right thumb.
A penetrating wound to the outer aspect of the left shoulder, a penetrating wound and a superficial ragged incised wound to the left upper arm, a penetrating wound to the back of the left upper arm, 2 penetrating wounds to the back of the left forearm, 12 penetrating stab wounds to the back of the left hand, a penetrating wound to the inner aspect of the left hand, a penetrating wound to the left index finger, a penetrating wound to the back of the left little finger, two penetrating wounds to the outer aspects of the left wrist, a penetrating wound to the palmar aspect of the base of the left thumb, two penetrating wounds to the centre of the left palm, and a penetrating wound to the outer aspect of the palmar surface of the left index finger.
Two penetrating wounds and one abraded incised wound to the outer aspect of the right hip.
A penetrating wound to the outer aspect of the left shin, two slightly Vshaped penetrating wounds to the outer aspect of the left shin with the wound track perforating the subcutaneous adipose tissue and ending in skeletal muscle.
A slightly ragged incised wound above the left heel.
A penetrating wound to the right side of the upper chest with a wound track perforating the subcutaneous adipose tissue, the coracobrachialis muscle, transecting the right axillary artery and ending in the soft tissue, as well as two further penetrating stab wounds to the outer aspect of the right side of the chest.
Three penetrating wounds to the right side of the back. Two further penetrating wounds to the right side of the back, whose wounds tracks were unable to be associated with either of the skin wounds and run through adipose skin tissue, intercostal muscles, right 8th rib and end in the lower lobe of the right lung, the soft tissue of the root of the left lung and TS vertebral body. Further, a superficial penetrating wound to the right side of the back of the body, three further penetrating stab wound to the right side of the back, and a penetrating wound to the right flank.
In summary, the deceased sustained multiple sharp force injuries to face, chest, back and limbs, a transected right axillary artery, a transected right superior thyroid artery, and bilateral haemothoraces (i.e. collection of blood in the space between the chest wall and the lung) with penetrating injuries to the lower lobe of the right lung, and a perforated right 8th rib.
Legal principles
Section 118 of the CPA relevantly provides:
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers –
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
The proper construction and interpretation of s 118 of the CPA has been considered in a number of decisions of the court, from which principles may be distilled. The Court of Appeal outlined the relevant legal principles in Steele v The State of Western Australia.[3]
[3] Steele v The State of Western Australia [2018] WASCA 133.
Neither the accused nor the State have the right to elect a trial by judge alone.[4] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[5]
[4] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [317].
[5] The State of Western Australia v Mack [2012] WASC 127, [43].
Section 118(4) of the CPA provides that the discretion of the court to make an order for a trial by judge alone will not be enlivened unless the court is affirmatively satisfied it is 'in the interests of justice' to do so.[6] If the court is satisfied that it is in the interests of justice to do so, the court then exercises the discretion of whether to make the order for a trial by judge alone.[7]
[6] LFG v The State of Western Australia, [318].
[7] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183, [21].
The phrase 'in the interests of justice' has a broad connotation and includes not only the interests of the accused but also the public interest.[8] The public interest 'in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts'.[9]
[8] LFG v The State of Western Australia, [319] - [320].
[9] LFG v The State of Western Australia, [320].
The fundamental issue with which s 118 of the CPA is concerned is that the accused receives a fair trial according to law and therefore, it will be in the interests of justice to order a trial by judge alone if that is necessary to ensure that the accused receives a fair trial.[10] There must be a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law before a jury.[11]
[10] LFG v The State of Western Australia, [321].
[11] LFG v The State of Western Australia, [319] - [321].
The concept of being in the interests of justice, therefore, is one that should not be narrowly defined and necessarily contemplates the analysis and weighing of relevant factors. What is in the interests of justice will vary from case to case.[12]Some guidance as to the factors that may be relevant in assessing the interests of justice is provided by s 118(5) and s 118(6) of the CPA, but both subsections state that the factors listed therein do not limit the general operation of the concept of what might be in the interests of justice. Where the issues at trial are likely to involve consideration of community standards of the type referred to in s 118(6), then that may favour a trial by jury.
[12] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383, [11].
A number of factors have been identified and considered in other cases that are relevant in determining what is in the interests of justice pursuant to s 118 of the CPA. No one factor will necessarily be paramount, with each factor given its appropriate weight in light of the particular facts and circumstances.[13]
[13] LFG v The State of Western Australia, [324].
The subjective views of the accused as to whether a trial by judge alone is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.[14]However, as McKechnie J observed in TVM v The State of Western Australia,[15]'to pay undue account to the subjective views of an accused person… may have the result that a decision is really being made for the interests of an accused, not the interests of justice'.[16]That is because the interests of justice are not coterminous with the interests of an accused.
[14] Arthurs v The State of Western Australia [2007] WASC 182, [79] - [80]; The State of Western AustraliavRayney, [26].
[15] TVM v The State of Western Australia [2007] WASC 299.
[16] TVM v The State of Western Australia, [30] - [32].
It has been suggested that the obligation of a judge to provide reasons for decision is a relevant factor that may weigh in support of a trial by judge alone,[17] but there are differing views as to whether this is a relevant factor.[18] I do not accept that the obligation to provide written reasons is a relevant factor.
[17] Arthurs v The State of Western Australia, [73] - [76].
[18] TVM v The State of Western Australia, [32]; The State of Western Australia v Wark [2017] WASC 154, [108].
Another factor that may be relevant to the interests of justice is the length of the trial.[19]
[19] Criminal Procedure Act 2004 (WA), s 118(5)(a).
A trial of extreme length may create problems for jurors who are required to forgo normal life commitments, or on whom such trials may place too great of a physical, mental or emotional burden.[20] In addition, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that the jury may be discharged for some reason, without reaching a verdict.[21]
[20] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[21] The State of Western Australia v Rayney, [37].
There is not necessarily any time saved if an accused has a judge alone trial.[22]Certainly not for the trial judge who will undoubtedly take a period of time at the conclusion of the trial to complete and deliver written reasons to be published at the delivering of the verdict.
[22] The State of Western AustraliavRayney, [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380, [29].
Another factor that may be relevant to the interests of justice is the complexity of the trial, which may raise difficult questions of fact. Such complexity will likely be unreasonably burdensome to a jury.[23]
[23] Criminal Procedure Act, s 118(5)(a).
The fact that a State case is based upon circumstantial evidence has also been considered to be a factor supporting a trial before a jury.[24]I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case in a given matter is based upon circumstantial evidence.[25]
[24] The State of Western Australia v Martinez& Ors, [36].
[25] Arthurs v The State of Western Australia, [61] - [67]; TVM v The State of Western Australia, [15].
In other cases, the nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that a jury may be unable to properly consider its relevance and significance.[26] Further, the evidence may involve intricate and disputed expert evidence or the jury may have difficulty in applying different legal principles in the context of complicated questions of fact.[27]
[26] LFG v The State of Western Australia, [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[27] LFG v The State of Western Australia, [337]; The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147.
In Steele v The State of Western Australia, the Court of Appeal observed:[28]
(7)In enacting s 118, Parliament must be taken to have known of the following well-established and long-standing principles in relation to criminal trials by or before juries:
(a)The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.
(b)The criminal justice system, as administered by the appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision-making of juries is unaffected by matters of possible prejudice.
(c)The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. However, what is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations.
[28] Steele v The State of Western Australia, [11].
The overarching consideration in determining whether it is in the interests of justice that an accused be tried by judge alone is whether the accused can receive a fair trial by jury.[29]
[29] The State of Western Australia v Rayney, [30].
Therefore, pre-trial publicity is a significant factor. In TVM v The State of Western Australia, McKechnie J outlined the extent and nature of pre-trial publicity that may create an environment in which the accused is unable to receive a fair trial. McKechnie J stated the following:[30]
It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear.
[30] TVM v The State of Western Australia, [29].
In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre‑trial publicity:[31]
The issue of pre-trial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pre-trial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527 at 532-533 per Street CJ, Yeldham and Finlay JJ agreeing; Western Australia v BLM (2009) 40 WAR 414 per Buss JA, with whom Owen, Wheeler and Pullin JJA agreed. It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM (at [70] - [73]); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J. In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (at 614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs (at [87]). Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' (at [33]).
[31] The State of Western Australia v Rayney, [34].
There has been support for judge alone trials where the issue for determination at trial is the mental capacity of the accused under s 27 of the Criminal Code. In TVM v The State of Western Australia McKechnie J observed that:[32]
Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone.
[32] TVM v The State of Western Australia, [6].
In Arthurs v Western Australia,[33] Martin CJ observed that a trial by judge alone may be ordered when the state of mind of the accused is relevant and therefore, the findings in the trial may depend upon an assessment of expert evidence. His Honour referred to two previous cases in support of that proposition, being The State of Western Australia v Tarau,[34] and The State of Western Australia v Iley.[35] There are now other cases in which an order for a judge alone has been made where an issue at trial was the state of mind of the accused under s 27 of the Criminal Code.[36]
[33] Arthurs v State of Western Australia, [59].
[34] The State of Western Australia v Tarau [2005] WASC 290.
[35] The State of Western Australia v Illey [2006] WASC 290.
[36] The State of Western Australia v Strabach [2012] WASC 97; The State of Western Australia v McDonald [2010] WASC 304; The State of Western Australia v Brown [No 2]; The State of Western Australia v Herbert [2017] WASC 101.
The Court of Appeal accepted in Hone v The State of Western Australia that it may be appropriate to order a trial by judge alone in a murder case involving an insanity defence.[37] Miller JA stated:[38]
The psychiatric evidence to be led in the case was likely to be more properly determined by a judge alone than by a jury. This was because the psychiatric evidence was to be directed to the question of whether or not the accused was of unsound mind at the time of the commission of the offences.
[37] Hone v The State of Western Australia [2007] WASCA 283, [18] (Miller JA, with Wheeler JA agreeing).
[38] Hone v The State of Western Australia.
There are numerous cases where an application for a judge alone trial has been granted on the basis that the issue at trial is whether the accused was suffering from a mental impairment at the time of the alleged offending.[39] However, it will not be axiomatic that a trial in which the insanity defence is to be determined will be conducted by a judge alone.
[39] See: The State of Western Australia v Zahidi [2023] WASC 359; The State of Western Australia v Pal [2023] WASC 157; The State of Western Australia v Dent [2023] WASC 69; The State of Western Australia v Davidson [2022] WASC 70; The State of Western Australia v Haast [2020] WASC 161; The State of Western Australia v Daly [2019] WASC 386; The State of Western Australia v Shayler [2019] WASC 86; The State of Western Australia v Ugle [2018] WASC 337; Marotta v The State of Western Australia [2018] WASC 141; The State of Western Australia v Herbert [2017] WASC 101; The State of Western Australia v Siddique [No 2] [2016] WASC 358; The State of Western Australia v Lang [No 2] [2016] WASC 206; The State of Western Australia v Stefanski [2015] WASC 371.
In The State of Western Australia v Evans,[40] Commissioner Sleight ordered a trial by judge alone in a case involving the insanity defence. The main basis for granting the trial by judge alone was pre-trial publicity. In his decision, Commissioner Sleight stated that he would not have granted a trial by judge alone on the basis of the other ground of the application, being the difficulty for the jury to resolve complex psychiatric evidence. Commissioner Sleight regarded the jury as being well able to deal with matters involving disputed psychiatric evidence and the behaviour of the accused at the relevant time. Though, it must be recognised that in The State of Western Australia v Evans there were further factual disputes involving a claim of the defence of provocation.[41] That defence does involve an assessment of community standards.
[40] The State of Western Australia v Evans [2012] WASC 87.
[41] The State of Western Australia v Evans.
Evaluation of the interests of justice
Counsel for the accused submitted that ultimately the issue at trial will be whether the accused had the specific intention for the offence of murder. The issue of intention is ordinarily an issue that may be readily understood and determined by a jury. However, in respect to this matter the trier of fact may be required to consider the interaction of s 27 and s 28 of the Criminal Code. The expert evidence that will be led at trial will be more properly considered by a judge sitting alone without a jury. The submission of the accused is that the issue is of some complexity in respect to the evidence. I accept that submission.
The application is supported by the submissions of Ms Prince. Counsel submitted that the accused will admit that he caused the death of his mother by inflicting multiple penetrating stab wounds. The accused was heavily intoxicated with illicit substances, prescribed medication and was allegedly suffering from a psychosis at the relevant time. The principal evidence at trial will be from a toxicology expert and two psychiatrists.
The State submitted that the accused's intent is the only issue at trial, with the accused's mind being disordered by intoxicating drugs but potentially due to pre-existing psychiatric conditions. The State further submitted that the nature and severity of those psychiatric conditions, and how they may have impacted on the accused's mind, is a difficult matter for assessment in the context of complex psychiatric and legal issues. Counsel stated that the expert evidence overlaps with both relevant and irrelevant material and that it would be difficult at trial to separate the interconnecting evidence.
I will briefly outline salient parts of the proposed expert reports that will be relied upon at trial. This will assist in understanding the issues likely to be assessed at trial.
The State has obtained a report from Professor Martin-Iverson.[42] Dr Martin-Iverson confirms that the Chemcentre report established that the accused returned a positive result to the following drugs: N,N‑Dimethyltryptamine (DMT), Olanzapine, Oxazepam, Psilocin and amphetamine. Dr Martin-Iverson stated that amphetamine was unlikely to be relevant to the incident. Dr Martin-Iverson stated that in the case of a person such as the accused, who previously has been diagnosed with schizophrenia, is medicated with anti-psychotic drug treatments and who is actively hearing voices, the detected drugs are more likely to produce strong negative emotions and precipitate paranoia and paranoid delusions and may have increased the likelihood of violent behaviour.[43] Dr Martin-Iverson stated such effects could be observed at the likely levels of DMT at the time of the incident.
[42] Report of Dr Martin-Iverson, State Brief of Evidence, p 213 - 216.
[43] Report of Dr Martin-Iverson, State Brief of Evidence, p 215.
Dr Martin-Iverson says '[i]t is highly likely that the accused would have been intoxicated at a severe level with the level of DMT, potentiated by the other two drugs (moclobemide especially, and psilocin)'.[44]
[44] Report of Dr Martin-Iverson, State Brief of Evidence, p 215.
Dr Martin-Iverson was asked whether he would expect a person with that level of intoxication to be deprived of their awareness as to what they were doing when stabbing another person with a knife. To that question Dr Martin-Iverson stated:[45]
In this particular case, with a history of schizophrenia, and reported auditory hallucinations, it is likely that the drugs were not only intoxicating but had precipitated a psychotic episode resulting in hallucinations, paranoid delusions, and thought disorder such that he would not have had a grasp on reality. That is, an interaction amongst the [two] or [three] drugs and underlying psychotic illness likely resulted in a loss of contact with reality.
[45] Report of Dr Martin-Iverson, State Brief of Evidence, p 215.
The State also obtained a report from Dr Brett, Consultant Psychiatrist, dated 10 January 2024. Dr Brett stated that he was of the opinion that at the time of the offending behaviour, Mr Cameron was 'acutely intoxicated'.[46] Dr Brett stated that the accused became voluntarily intoxicated and was aware of the potential impact of the substances that he had taken. The accused took a higher dosage than what he had wanted and he experienced an acute confusional state as a consequence. Dr Brett stated that the acute confusional state or delirium is a change in the mental state that is associated with 'confused thinking, a lack of awareness of one's surroundings, perceptual disturbances and often associated with physiological changes'.[47]
[46] Report of Dr Brett dated 10 January 2024, p 17.
[47] Report of Dr Brett dated 10 January 2024, p 18.
Dr Brett stated that he was of the opinion that the time of the alleged offending the accused had a mental impairment, namely a mental illness schizoaffective disorder and that he was experiencing an acute confusional state. This would have been impacted by his intoxication and his personality structure.[48]
[48] Report of Dr Brett dated 10 January 2024, p 18.
Dr Brett stated that he believes the severe intoxication and probable psychosis would have impacted on the accused's ability to make informed decisions and to understand the impact of any of his actions.
Dr Brett stated that he was of the opinion that the level of intoxication and the accused's mental health had likely deprived him of the capacity to know that he ought not do the act. Dr Brett stated it was the accused's severe intoxication and acute confusional state that is more relevant in causing this deprivation.[49]
[49] Report of Dr Brett dated 10 January 2024, p 19.
The defence obtained reports from Dr Wojnarowska, Psychiatrist, dated 1 April 2023 and 6 July 2023 respectively.
Dr Wojnarowska diagnosed the accused as having an underlying functional illness namely, schizoaffective disorder. The accused's acute psychotic episodes were usually triggered by drug use and stress in a person with vulnerable brain structure.[50] Dr Wojnarowska stated that at the time of the offending, the accused was in a delirious state, disorientated and exhibiting symptoms of hallucinogen intoxication.[51] Dr Wojnarowska expressed the opinion that given that the accused is not able to recall the details of the incident, it is difficult to 'speculate what his intention' was, however it is evident he did not plan or had no motivation to cause harm to his mother or anyone else on that day.[52]
[50] Report of Dr Wojnarowska dated 1 April 2023, [77].
[51] Report of Dr Wojnarowska dated 1 April 2023, [83].
[52] Report of Dr Wojnarowska dated 1 April 2023, [83].
Dr Wojnarowska expressed the opinion that the accused had no capacity to understand what he was doing at the time of the alleged offence.[53] Further, Dr Wojnarowska stated the accused did not have the capacity to know that he ought not do the act.[54] Further, that the accused 'had sufficient knowledge of the potential effects of the illicit and prescription substances would have on his brain, and as such on his thought processes, emotions and behaviour'.[55]
[53] Report of Dr Wojnarowska dated 6 July 2023, [6].
[54] Report of Dr Wojnarowska dated 6 July 2023, [6].
[55] Report of Dr Wojnarowska dated 6 July 2023, [4].
Other matters
During the hearing of this application, counsel submitted that the number of witnesses required would be truncated given agreement concerning issues at trial. The trial may be conducted, in part, by the tendering of witness statements.
Counsel for the accused submitted that another factor supportive of a trial by judge alone was the graphic nature of the murder. Whilst the nature of the killing was most confronting, I do not accept that there is merit in the submission. I am of the view that judicial direction would overcome any prejudice to the accused that may arise from the confronting nature of the killing.
Conclusion
It may be concluded from the submissions of counsel that the principal issue at trial will be whether the accused held the specific intention for the offence of murder. However, a trial may also raise the issues of s 27 and s 28 of the Criminal Code. The determination of issues at trial will rely, to a significant degree, on the evidence of the expert witnesses. I consider that the expert evidence should be assessed by a judge sitting alone without a jury.
Accordingly, it is in the interests of justice to make an order that there be a trial by judge alone and I exercise my discretion by so ordering.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
20 FEBRUARY 2024
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