The State of Western Australia v Dent

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DENT [2023] WASC 69
CORAM:   MCGRATH J
HEARD:   13 MARCH 2023
DELIVERED          :   13 MARCH 2023
FILE NO/S:   INS 32 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT GEORGE DENT
Respondent

Catchwords:

Criminal procedure - Accused's application for trial by judge alone - Charge of murder - Unsoundness of mind - Section 27 of the Criminal Code (WA) - Expert psychiatric evidence - Whether objective community standards required in circumstances - Turn on own facts

Legislation:

Criminal Code (WA), s 27, s 279
Criminal Procedure Act 2004 (WA), s 118

Result:

Application for trial by judge alone granted

Category: B

Representation:

Counsel:

Applicant	:	Mr C G Astill
Respondent	:	Ms F M Clare

Solicitors:

Applicant	:	Kate King Legal
Respondent	:	Director or Public Prosecutions (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
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 Evans [2012] WASC 87
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Illey [2006] WASC 290
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 Rayney [2011] WASC 326; (2011) 42 WAR 383
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 Wark [2017] WASC 154
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

MCGRATH J:

The applicant, Mr Dent, has been indicted on two counts that on 21 September 2021 he murdered his mother and father contrary to s 279 of the Criminal Code.
Mr Dent has pleaded not guilty to the counts and is preceding to trial.
Mr Dent 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.
The basis for the application is that it is in the interests of justice to grant the order for a judge alone trial, given that the single issue for determination of the trial will be whether Mr Dent was of unsound mind at the time of the alleged offending pursuant to s 27 of the Criminal Code.
For the following reasons, I have determined that it is in the interests of justice that Mr Dent 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;
(c)The basis for the application;
(d)An evaluation in the interest of justice in the application.

The State's case

The State's case is outlined in the Amended Statement of Material Facts that forms part of the brief of evidence that has been filed. The facts are in the following terms:
1.The Accused is 47 years old and lived at home with his parents Colin and Bernice Dent at 9 Berkshire Street, Capel. Colin Dent was 75 years old and Bernice Dent was 74 years old.
2.The Accused was a recluse whom neighbours had not seen for years. His parents claimed the Accused had health issues, including chemical and electromagnetic sensitivities. He had apparently suffered Glandular fever as a child and was diagnosed with chronic fatigue syndrome at some stage.
3.Colin Dent was last seen alive on the morning of Monday, 20 September 2021 when he went to the local newsagency to buy a newspaper.
4.Sometime around 4:00am on 21 September 2021 the Accused armed himself with a rubber mallet from the shed. After he re-entered the house, the Accused placed a second pair of socks over his existing ones. He entered his father's bedroom. Colin Dent was asleep in his bed on his right side. The Accused struck him with the rubber mallet to the left temple with force, which caused immediate swelling. Colin Dent looked at the Accused. The Accused repeatedly struck his father to the head with the mallet until he was dead.
5.The Accused then armed himself with a butcher's knife from the games room. He entered his mother's bedroom. Bernice Dent was asleep. The Accused struck her to the head with the mallet, which caused her to wake up. She asked the Accused why he struck her. He claimed it was because of a 'radionics' machine and then struck her to the head several more times. Bernice Dent tried to protect herself by shielding her forehead and face with her hands. The Accused continued to strike her until she lost consciousness. The force of the blows dislodged pieces of Bernice's skull, which either fell on the bed or became embedded in her head. The Accused believed she was still breathing so using the knife he'd obtained from the games room he cut the right side of her throat through to her collarbone, which severed the right internal jugular vein.
6.The Accused remained in the house until 24 September. During that time, he cleaned blood from his mother's room with cleaning products. He washed the mallet in the kitchen sink. He also took steps to make it appear his parents had been killed by relatives. He wrote statements on walls and doors of various rooms in the house naming relatives as the killers as well as stating they were paedophiles involved in satanic rituals.
7.The Accused also drew inverted crosses all over his own body, inserted items of cutlery into his anus and knitting needles into his penis. He placed those items in what he considered were satanic positions on his bedroom floor. The Accused wanted it to appear as though he had been sexually assaulted by relatives in a ritualistic satanic way.
8.In the days following the killings the Accused attempted to mask the smell by spraying his father with cleaning products, spraying the house with eucalyptus oil and placing towels at the base of doors to stop the smell coming out of his parents' bedrooms.
9.On Friday, 24 September 2021 at around 3:30am the Accused attempted to kill himself in his bed. He used the same butcher's knife he'd used to kill his mother to slice his penis several times over a period of 90 minutes to two hours, which caused significant bleeding. The Accused fell in and out of consciousness during that period.
10.At approximately 8:17am that morning the Accused called triple zero and requested assistance for the injuries he had inflicted on his penis. The Accused informed the call operator that he had killed his parents with a rubber mallet on Monday night.
11.Police officers arrived at the address at around 8:23am. The Accused came to the front door. After they made initial inquiries about his injuries, the Accused told them his parents were dead in the house and he had killed them.
12.The Accused was taken to Bunbury Health Campus and underwent surgery for his self-inflicted injuries. The Accused was discharged on 25 September 2021. He was interviewed by police on video that day.
13.The Accused claimed radionics machines controlled by his relatives told him to kill his parents and himself. He believed the motive for his relatives' actions stemmed from a perceived family dispute dating back to 1991.
14.The Accused admitted he tried to set up his relatives for killing his parents. He claimed he used the rubber mallet because he believed it would make less noise than a metal one when he hit the skulls of his parents.
15.On post mortem examination both Colin and Bernice Dent were found to have significant head injuries. Further, Bernice's throat had been cut.

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.[1]
[1] Steele v The State of Western Australia [2018] WASCA 133.
Neither the accused nor the State has the right to elect a trial by judge alone.[2] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[3]
[2] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [317].
[3] 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.[4] 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 trial by judge alone.[5]
[4] LFG v The State of Western Australia, [318].
[5] 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.[6] 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'.[7]
[6] LFG v The State of Western Australia, [319] - [320].
[7] 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.[8] 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.[9]
[8] LFG v The State of Western Australia, [321].
[9] 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.[10]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.
[10] 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.[11]
[11] 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.[12] However, as McKechnie J observed in TVM v The State of Western Australia,[13] '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'.[14] That is because the interests of justice are not coterminous with the interests of an accused.
[12] Arthurs v The State of Western Australia [2007] WASC 182, [79] - [80]; The State of Western AustraliavRayney, [26].
[13] TVM v The State of Western Australia, [2007] WASC 299.
[14] 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,[15] but there are differing views as to whether this is a relevant factor.[16] I do not accept that the obligation to provide written reasons is a relevant factor.
[15] Arthurs v The State of Western Australia, [73] - [76].
[16] 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.[17]
[17] 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.[18]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.[19]
[18] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[19] The State of Western Australia v Rayney, [37].
There is not necessarily any time saved if an accused has a judge alone trial.[20] 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.
[20] The State of Western AustraliavRayney, [37]; The State of Western Australia v Martinez & Ors [2006] WASC 25; (2006) 159 A Crim R 380, [29].
The trial may be of complexity, raising difficult questions of fact, which will likely be unreasonably burdensome to a jury.[21]
[21] Criminal Procedure Act, s 118(5)(a).
The fact that the State's case is based upon circumstantial evidence has been considered to be a factor supporting a trial before a jury.[22] I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case is based upon circumstantial evidence.[23]
[22] The State of Western Australia v Martinez& Ors, [36].
[23] Arthurs v The State of Western Australia, [61] - [67]; TVM v The State of Western Australia, [15].
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.[24] 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.[25]
[24] LFG v The State of Western Australia, [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[25] 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,[26] the Court of Appeal observed:
(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 or 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.
[26] 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.[27]
[27] 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:[28]
… 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.
[28] 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:[29]
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]).
[29] 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:[30]
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.
[30] TVM v The State of Western Australia, [6].
In Arthurs v Western Australia,[31] 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[32] and The State of Western Australia v Iley.[33] 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.[34]
[31] Arthurs v State of Western Australia.
[32] The State of Western Australia v Tarau [2005] WASC 290.
[33] The State of Western Australia v Illey [2006] WASC 290.
[34] 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[35] that it may be appropriate to order a trial by judge alone in a murder case involving an insanity defence. Miller JA stated:[36]
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.
[35] Hone v The State of Western Australia [2007] WASCA 283 [18] (Miller JA, with Wheeler JA agreeing).
[36] Hone v The State of Western Australia.
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. In The State of Western Australia v Evans,[37] 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[38] there were further factual disputes involving a claim of the defence of provocation. That defence does involve an assessment of community standards.
[37] The State of Western Australia v Evans [2012] WASC 87.
[38] The State of Western Australia v Evans.

The basis for the application

The basis of the application for a trial by judge alone is that there is a single issue for determination at trial, which is whether the accused was of unsound mind within the terms of s 27 of the Criminal Code, and that the expert evidence that will be lead at trial will be more properly considered by judge sitting alone without a jury.
The application is supported by the affidavit of Mr Jessie Cox sworn 31 January 2022 that attests that Mr Dent is pleading not guilty to the counts on the indictment on the basis of unsoundness of mind pursuant to s 27 of the Criminal Code. Mr Cox states that the issue at trial will be whether Mr Dent was of unsound mind at the time of the commission of the physical events giving rise to the charges of wilful murder. Mr Cox states that Mr Dent will make the following admissions at trial:
1.Robert George Dent was born on 29 August 1974 and was 47 years of age at the time of the incident (The Accused).
2.Colin Richard Dent was born on 31 January 1946 was 75 years of age at the time of the incident.
3.Bernice Rae Dent was born on 10 December 1946 and was 74 years of age at the time of the incident.
4.Robert George Dent is the biological son of Colin Richard Dent and Bernice Rae Dent ('the Accused's parents').
5.Robert George Dent was residing with Colin Richard Dent and Bernice Rae Dent at 9 Berkshire Street, Capel ('the residence').
6.On 21 September 2021 at Capel, Robert George Dent, struck Colin Richard Dent with a rubber mallet to the head until Colin Richard was dead.
7.As a result, Colin Richard Dent sustained blunt force trauma injuries to the head. Those injuries caused Colin Richard Dent's. death.
8.At the time of causing injury to Colin Richard Dent the Accused intended to kill or to cause Colin Richard Dent a life-threatening bodily injury.
9.On the same date and at the same place, the Accused, struck Bernice Rae Dent with a rubber mallet to the head several times until she was unconscious. The Accused then severed Bernice Rae Dent's jugular vein with a knife.
10.As a result, Bernice Rae Dent sustained blunt force trauma to the head and sustained a sharp force laceration to the neck. These injuries caused Bernice Rae Dent's death.
11.At the time of causing injury to Bernice Rae Dent, the Accused intended to kill or to cause Bernice Rae Dent a life-threatening bodily injury.
The State has obtained an expert report from Dr Adam Brett, Consultant Psychiatrist, dated 10 December 2022 and the accused has obtained an expert report from Dr Pascu, Consultant Psychiatrist, dated 2 May 2022. I have considered both reports. Both psychiatrists have made a diagnosis that is supportive of a possible finding that Mr Dent had, at the time of the alleged offending, a mental impairment as defined in s 27 of the Criminal Code.
Dr Pascu stated that it appears that the alleged offences occurred in the context of Mr Dent's longstanding undiagnosed and untreated major mental illness. Dr Pascu diagnosed Mr Dent as suffering from schizophrenia at the time of the alleged offending.
Dr Brett stated that in his opinion, Mr Dent at the time of the offences was suffering from a mental impairment namely a schizoaffective disorder.

The interests of justice

The State consents to the application by the accused, however, that is not determinative of the application.
It may be concluded, from the submissions of counsel and admissions proposed to be made by the accused, that the sole issue for determination at trial will be the accused's mental capacity at the time of the alleged offending. That determination will rely, to a significant degree, on the evidence of the expert witnesses. I consider that the expert evidence will be more properly considered by a judge sitting alone without a jury.
There is no issue to be resolved at trial that will require a jury to consider objective community standards.
Accordingly, it is in the interest 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
13 MARCH 2023

[2023] WASC 69

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Jurisdiction

Unsoundness of Mind

Expert Evidence

Specific Performance

Issue Estoppel