The State of Western Australia v Lambie - [2021] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LAMBIE [2021] WASC 60
CORAM:   SMITH J
HEARD:   23 FEBRUARY 2021
DELIVERED          :   23 FEBRUARY 2021
PUBLISHED           :   9 MARCH 2021
FILE NO/S:   INS 13 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
REUBEN DAVID LAMBIE
Accused

Catchwords:

Criminal law - Criminal procedures - Application for trial by judge alone - Intoxication an issue - Section 28(3) of the Criminal Code - Technical or complex expert evidence contemplated - Absence of evidence about the complexities in expert evidence to be called - Other issues - Causation - Objective community standards - Section 118(6) of Criminal Procedure Act 2004 (WA) - Criminal negligence - Reasonableness

Legislation:

Criminal Code (WA), s 27, s 28(3), s 266, s 279, s 279(1)(b), s 279(1)(c), s 304(1)(b), s 304(2)(b), s 443, s 444(1)(a), s 444A, s 445A
Criminal Procedure Act 2004 (WA), s 118

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr B F Stanwix
Accused	:	Mr A F Kraus

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Equus Chambers

Case(s) referred to in decision(s):

Collard v The State of Western Australia [2016] WASCA 135
Fitzpatrick v The Queen [2004] WASCA 99
Macaree v The State of Western Australia [2011] WASCA 207
Pace v 'H' (A Child) (1994) 12 WAR 35
Steele v The State of Western Australia [2018] WASCA 133
The State of Western Australia v Quartermaine [2020] WASC 458
Viro v The Queen (1978) 141 CLR 88

SMITH J:

The application and result

Mr Lambie applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA), for his trial to be heard by a judge alone without a jury.
After hearing counsel for the parties on 23 February 2021, I dismissed an application made on behalf of Mr Lambie for trial by judge alone. The reasons that follow set out why I formed the opinion that the interests of justice did not weigh in favour of making the order sought by Mr Lambie.
Mr Lambie has been indicted on several counts of offences arising out of a fire at a backpackers hostel in East Perth on 13 December 2019. In count 8 it is alleged that Mr Lambie murdered Tammee Lee Jones contrary to s 279 of the Criminal Code (WA). In the remaining charges in the indictment it is alleged that Mr Lambie:
(a)in count 1, wilfully and unlawfully damaged a building and its contents by fire, contrary to s 444(1)(a) of the Criminal Code;
(b)in count 1A (in the alternative to count 1), being a person who had charge of or was in control of the source of ignition, unlawfully omitted to do an act which it was his duty to do, namely to use reasonable care and take reasonable precautions to avoid lighting a fire that destroyed or may have destroyed or caused damage to property, namely a building and its contents contrary to s 445A;
(c)in count 2, with intent to harm, did an act as a result of which the life, health or safety of Joseph Ncube was, or was likely to be, endangered, contrary to s 304(2)(b) of the Criminal Code;
(d)in counts 2A (in the alternative to count 2), 3, 4, 5, 6 and 7 committed an act as a result of which the life, health or safety of Mr Ncube, Emma-Rae McKean, Patricia Joan Jonasson, Casey Luke Maguire, Bradley Arthur Lawrence and Robert Nell McCrae was, or was likely to be endangered, contrary to s 304(1)(b) of the Criminal Code.
Mr Lambie has pleaded not guilty to each of the counts on the indictment and will appear for trial commencing on 1 June 2021.
When the application was first made, submissions were filed[1] on behalf of Mr Lambie in which it was stated that the defence to be relied upon is insanity pursuant to s 27 of the Criminal Code.
[1] The submissions were filed on 14 December 2020.
After reviewing the submissions filed in support of the application on 14 December 2020, a request was made by the court for further submissions to be filed on behalf of Mr Lambie addressing a number of issues, including what admissions, if any, did counsel have instructions to make at the trial, Mr Lambie's response to the State's submissions filed on 4 February 2021, what were the factual issues that needed to be determined at trial, and whether any of those factual issues will involve an issue that requires the application of objective community standards as contemplated by s 118(6) of the Criminal Procedure Act.
In response to this request, further submissions were filed on behalf of Mr Lambie on 19 February 2021 in which a concession is made that in light of the State's responsive submissions, the defence of insanity is withdrawn, and instead the issue of intoxication and its effect on Mr Lambie's capacity to form a requisite intent pursuant to s 28(3) of the Criminal Code will be raised as a defence.
The grounds of the application that Mr Lambie now seeks to press, in support of a submission that it is in the interests of justice to grant an order for a judge alone trial, are as follows:
(a)Mr Lambie's defence will be that, should the State establish beyond reasonable doubt that Mr Lambie lit the relevant fire and his acts caused the building to catch fire, he was intoxicated by drugs, and that intoxication impaired his ability to form a specific intent. In respect of this issue, it is argued that the issue relates to the determination of matters of complex expert evidence and the application of the law to that evidence; and
(b)Mr Lambie suffers from schizophrenia and psychosis. He is prone to verbal outbursts, lapses of concentration, and mood swings, all of which would have highly prejudicial consequences if the matter were to be tried by jury and observed by members of the jury. Further, as a consequence of his illness, he may require frequent breaks during a trial that would be difficult to accommodate with a jury.

The State's case

The State's case is outlined in the amended statement of material facts, dated 4 February 2021, that forms part of the brief of evidence that has been filed. These facts are as follows.
Mr Lambie was a resident of a hostel in East Perth, known as Exclusive Backpackers, at the same time as each of the victims named in the indictment. It was a hostel where people who were in housing crisis would stay in temporary accommodation. Despite its name, its clientele were not typically young travellers, but people who are homeless, mentally ill or drug addicted.
On the night of the fire, there were many people staying at the hostel. The rooms in the hostel where people slept were on the ground floor and upstairs. Each room accommodated multiple people.
At around midnight on 12 December 2019, most of the guests at the hostel were in bed asleep, including Ms Jones, Ms Jonasson and Ms McKean in room 13 upstairs. At that time, Mr Lambie was nearby in an upstairs room (15) with Joseph Ncube. A third bed in room 15 was unoccupied.
Mr Lambie was awake. Earlier in the day he had consumed a quantity of methylamphetamine, and was still feeling its effects. Mr Ncube was asleep in his bed. Just after midnight, Mr Lambie set fire to something and left it smouldering either on or under the spare bed in room 15.
Mr Lambie left the smouldering item in his room, walked out and closed the door. He went downstairs and left the hostel, and walked across the road to the deli where he purchased two cans of soft drink. After leaving the deli, he remained in the area and drank the soft drink.
Meanwhile, the item continued to smoulder in room 15 and eventually caused the spare bed to catch fire. Mr Ncube woke up to find the spare bed on fire and flames just reaching the ceiling. He managed to get out of the room without being injured, and raised the alarm.
The fire spread through room 15 and to other parts of the building, and caused extensive damage to the building and its contents.
Ms McKean was woken up by someone else raising the alarm. By that time her room was already filled with thick dark smoke. Ms Jonasson was woken by Ms Jones screaming.
Mr Maguire was asleep in room 9 upstairs when the fire started. Mr Lawrence was awake and lying in bed upstairs in room 11. Mr McCrae had been asleep but was woken up by another guest a short time prior to the fire. He was trying to get back to sleep upstairs in room 10 when the alarm was raised about the fire.
Although it is not stated in the amended statement of material facts, all of the victims, except Ms Jones and Ms Jonasson, escaped the building. Ms Jones was found in her bedroom unresponsive by firefighters and was conveyed to Royal Perth Hospital where after coronary pulmonary resuscitation she was pronounced deceased. Ms Jonasson was also found in the building and rescued by firefighters. She was treated in hospital for smoke inhalation. Ms McKean managed to escape from her room through a window onto the balcony and together with some of the other victims she was rescued by firefighters from the upstairs balcony of the hostel. Other than Ms Jones, all of the victims named in the indictment received treatment for smoke inhalation.
Ms Jones died as a result of the fire, specifically as a result of inhaling the fumes created by the fire, which saturated her blood with carbon monoxide.
In respect of count 8 on the indictment, the State alleges that Mr Lambie killed Ms Jones in that he caused her death by starting the fire. The killing was not authorised, justified or excused by law, and so Mr Lambie unlawfully killed Ms Jones. Further, it is alleged that when Mr Lambie unlawfully killed Ms Jones, her death was caused by means of an act or series of acts done in the prosecution of an unlawful purpose, and that act or series of acts was of such a nature as to be likely to endanger human life.
In respect of count 2, the State alleges that when Mr Lambie set fire to the item and left it smouldering in the room, he did not just intend to damage property, he did so intending to harm Mr Ncube. He intended to harm him because he intended to unlawfully cause bodily harm, and/or because he intended to unlawfully endanger his life, health or safety.
In the days prior to the fire, Mr Lambie had developed an animosity towards Mr Ncube. On two separate occasions he had damaged property belonging to Mr Ncube using fire.
In respect of counts 3 to 7, the State alleges that his act of setting fire to the item in room 15, in circumstances where he left it smouldering in the room, was itself unlawful and resulted in the life, health or safety of other people in the building being endangered or being likely to be endangered.

Factual issues to be determined at trial

It is intended that the following admissions will be made on behalf of Mr Lambie at trial:
(a)Mr Lambie was a tenant, and an occupant at the Exclusive Backpackers on 12 and 13 December 2019, and for some time before those dates;
(b)Mr Lambie shared room 15 with Joseph Ncube;
(c)at some time, Mr Lambie lit a t-shirt on fire that he believed was owned by Joseph Ncube; and
(d)at 12.06 am on 13 December 2019, Mr Lambie walked out of the Exclusive Backpackers then walked across Adelaide Terrace to a business named 'Rise'.
Mr Lambie denies in his instructions and pleas of not guilty that the t‑shirt he lit on fire caused damage to the building of Exclusive Backpackers, and subsequently, endangered the health and safety of any person and killed Ms Jones.
The factual issues to be determined at trial are as follows:
(a)whether Mr Lambie lit the fire that caused damage to the building as described in the forensic report (that is, whether the t-shirt that Mr Lambie lit on fire subsequently caused the damage, was a danger to health and safety, and caused the death of Ms Jones as alleged);
(b)regarding count 1 on the indictment, if Mr Lambie did light a fire as alleged in (a), whether he did so with the requisite state of mind 'knowing or believing that the act or omission is likely to result in the destruction of or damage to property', being the building of the Exclusive Backpackers;
(c)in the alternative to count 1, in count 1A, if Mr Lambie did light a fire as alleged in (a), whether Mr Lambie lit the relevant fire in a manner that could be considered, beyond reasonable doubt, to constitute criminal negligence;
(d)whether Mr Lambie was intoxicated by methylamphetamine or other substances at the time he lit the t-shirt on fire; and
(e)the extent of Mr Lambie's intoxication, and whether that intoxication impaired his ability to form a specific intention.

Section 118 of the Criminal Procedure Act 2004 (WA)

Section 118 of the Criminal Procedure Act provides:
118. Trial by judge alone without jury may be ordered
(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.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.

Legal principles

The principles to be applied in determining whether an order should be made under s 118 for trial by judge alone were settled by the Court of Appeal in Steele v The State of Western Australia as follows:[2]
[2] Steele v The State of Western Australia [2018] WASCA 133 [11] ‑ [16] (citations omitted).
The general principles to be applied in the exercise of the power to order a trial by judge alone were identified by Buss JA, with whom Mazza JA agreed, in LFG v The State of Western Australia. The following presently relevant general principles were identified:
(1)Neither the accused nor the prosecutor has a right to elect a trial by a judge alone.
(2)The court's power to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so.
(3)The phrase 'in the interests of justice' has a broad connotation, which includes not only the interests of the accused but also the public interest. 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.
(4)It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. This is a fundamental (but not the only) issue with which s 118 is concerned. It will be 'in the interests of justice' to order a trial by a judge alone if that is necessary to ensure the accused receives a fair trial according to law. That will be necessary if there is 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 by or before a jury.
(5)It is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is 'in the interests of justice' to order that there be a trial by a judge alone.
(6)The phrase 'in the interests of justice', in s 118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under s 118(1). They will vary from case to case and must be determined on a case‑by‑case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances.
(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 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.
(8)It may be in the interests of justice to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:
(a)Pre‑trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside;
(b)The nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance; and
(c)The jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact.
These examples are not exhaustive.
The appellant refers to the observations of Martin CJ in LFG. The Chief Justice observed that the requirement for the consent of the accused reflects legislative recognition of the fact that a right to trial by jury on an indictable offence is generally regarded as a right of the accused. His Honour said that it is consistent with the implicit legislative recognition of that right to give at least some weight to the views of the accused which are not fanciful or irrational in the exercise of the discretion conferred by s 118.
We agree that the views of the accused are not an irrelevant consideration. However, the views of the accused, even if not fanciful or irrational, are not controlling. The crucial consideration will be the court's view of whether it is in the interests of justice to order a trial by judge alone, and other matters relevant to an assessment of where the interests of justice lie. The court's view is formed having regard to the public interest and legal policy considerations referred to above, as well as the subjective views of the accused.
It follows that we would not go so far as Martin CJ did in Arthurs v The State of Western Australia, where his Honour observed:
'Thus, in my opinion an apprehension by an accused person, which is not fanciful or irrational, that he or she may not get a fair trial by jury because, for example, of pre-trial publicity or because of their ethnic, religious, cultural or other peculiar circumstances, may be entitled to significant weight.
Therefore, in some cases the fact that an accused person has made an application for trial without jury and has an apprehension, which is not fanciful or irrational, that his or her trial by a jury may be prejudiced by any circumstance may of itself be sufficient to produce the conclusion that it is in the interests of justice for the application to be granted if there are no countervailing considerations in favour of trial by jury.'
Counsel for the appellant also rely on the following passage of Martin CJ's reasons in LFG:
'In this case, it is apparent from the reasons of the Chief Judge that he placed considerable reliance upon observations made in earlier cases to the effect that juries, properly directed, are capable of ignoring prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. However, with respect, observations of that kind are customarily made in the context of an application to stay or abort a trial on the basis of unfairness. Considerations of the kind to which the Chief Judge referred were of the utmost relevance to the decision made by Stevenson DCJ to admit the evidence pursuant to s 31A of the Evidence Act. However, the fact that a jury is capable of returning a true verdict despite the risk of prejudice is of much less significance to the exercise of the discretion under s 118 of the Act, which requires attention to be directed to the enhancement or advancement of the interests of justice. For the reasons I have enunciated, that question is more concerned with the steps that might be taken to reduce the risk of unfairness or injustice without it necessarily being established that an order is necessary to avoid injustice or unfairness which would otherwise result. (emphasis added)'
This passage reflects the difference of approach between the dissenting judgment of Martin CJ and the reasons of the majority in LFG. On the majority's view, the question is not merely whether a trial by judge alone would reduce the risk of unfairness or injustice. A conclusion that trial by judge alone would have that effect does not determine whether an order for trial by judge alone should be made. It is rather necessary to consider whether the court is affirmatively satisfied that, in the particular case, in all the circumstances, it is in the interests of justice to order a trial by judge alone, having regard to the public interest, general principles and matters of legal policy referred to in the majority's decision. We respectfully endorse the majority's approach, which we apply in this appeal.

In Steele v The State of Western Australia, their Honours also relevantly remarked about the relevant factor of a trial involving a factual issue that requires the application of objective community standards, which in that case was whether relevant acts were indecent:[3]
This was a factual issue that requires the application of objective community standards, which under s 118(6) may itself be a ground for refusing to make an order for trial by judge alone. Before the primary judge, the appellant indicated that the appellant would formally admit that the acts in question were indecent, so the issue would not need to be resolved at trial. However, no such admission was actually made at the appellant's trial, and the jury were directed as to elements of indecency of which they were required to be satisfied. This is a further factor counting against the making of an order for trial by judge alone. It also illustrates why a court may properly be reluctant to act on a non-binding indication of a future admission in a trial for an offence the elements of which involve the application of community standards.
[3] Steele v The State of Western Australia [2018] WASCA 133 [42] (citations omitted).

Factors identified on behalf of Mr Lambie

The technical or complex nature of the expert evidence

It is conceded on behalf of the State that the present case involves the evaluation of expert psychiatric evidence concerning Mr Lambie's mental state at the time of the incident, that where such an evaluation is the only matter seriously in dispute, a trial by judge alone would ordinarily be appropriate, and the State usually concedes applications for a trial by judge alone in such cases. However, because this is not the only issue that requires determination in this matter, the State says this factor should not be determinative in assessing where the public interest lies.
Although it is intended that a defence of insanity under s 27 of the Criminal Code will not be maintained at trial, in support of Mr Lambie's application, a report from a consultant forensic psychiatrist, Dr Victoria Pascu, dated 10 July 2020, was filed on 14 December 2020. In her report, Dr Pascu states that:
(a)regarding Mr Lambie's mental state at the time of the alleged offences, from a psychiatric point of view an insanity defence can be supported;[4]
(b)Mr Lambie suffers from a major mental illness, namely chronic paranoid schizophrenia, which is a mental impairment which has been complicated by his polysubstance abuse which further contributed to his altered mental state and impaired judgement with worsening of the psychotic symptoms; and
(c)given the history of polysubstance abuse and history of mental illness and his reported use of illicit drugs in the 48 hours leading up to the alleged offences, it is difficult to know how much of Mr Lambie's mental state at the time of the alleged offences were altered primarily from his mental illness and how much was the effect of illicit drug use.
[4] Despite Dr Pascu's opinion, counsel for Mr Lambie has instructions to withdraw this defence.
Dr Pascu also states in her report that she notes that during the interview with police on 13 December 2019, Mr Lambie indicated that in the 48 hours leading up to the alleged offences he had consumed approximately 30 units of intravenous methylamphetamine and 20 units of inhaled methylamphetamine (smoked), but that she was not aware whether Mr Lambie had a drug screen (urinary or blood screen) following his arrest.
A toxicology report indicates that approximately six hours after the fire, a sample of Mr Lambie's blood revealed:
a.Methylamphetamine at 0.10mg/L
b.Amphetamine at 0.01mg/L (presumably a metabolite of the methylamphetamine)
c.Tetrahydrocannabinol at <1ug/L
d.Aripiprazole (an anti‑psychotic drug) at 0.1mg/L and the presence of its metabolite
Mr Lambie does not accept that he was responsible for the fire. Leaving that issue aside, the expert evidence which is to be adduced at the trial, both on behalf of Mr Lambie and the State, will go to the issue of whether if the State proves that Mr Lambie was responsible for the fire that he was intoxicated by drugs at the relevant time and the effect of those drugs was to impair his ability to form an intent. It appears clear that it will be accepted that illicit drugs were taken by Mr Lambie voluntarily, but that the defence position will be that, having regard to all the circumstances, including the intoxicated state of Mr Lambie, it cannot be proven beyond reasonable doubt that he had the necessary intent to commit each of the offences in counts 1, 2 and 8.
Whilst it is usually the case that expert evidence relevant to this issue involves complex concepts, there is no expert evidence or other evidence before the court to explain what those complexities are in this matter and how they will arise in the trial of these offences. All that is before the court is Dr Pascu's expert report, which contains no information as to the nature of the evidence on this issue.
However, this is an issue which arises in many cases that come before this court where the issue of intoxication is raised as a defence pursuant to s 28(3) and s 27 of the Criminal Code, in which complex opinion evidence is given about interactions between drugs and substances and psychiatric conditions, and sometimes there are differing expert views on these issues.
It is noted that the State intends to obtain an expert toxicology opinion from a Dr Grasko and an expert psychiatric opinion from a Dr Brett. At the time of hearing this application, those reports had not become available.
Juries routinely deal with expert evidence, including expert evidence of a relatively complex nature, and juries are plainly competent to do so when appropriately directed.[5] In any event, in the absence of evidence about the nature of the expert evidence to be given in this case, I cannot be persuaded that there is a substantial risk that a jury properly directed would have difficulty in understanding expert evidence about the effect of drugs on Mr Lambie at the time of the incident, or would not give proper weight to such evidence.
[5] An appropriate direction in respect of the element of intent on account of murder where intoxication is raised was set out by Gibbs J in Viro v The Queen (1978) 141 CLR 88, 112; recently applied in The State of Western Australia v Quartermaine [2020] WASC 458 [30] (Hall J).
The issue of intoxication is only one issue of fact that will be required to be determined in the trial. Whilst this is an issue I would ordinarily give weight to favouring a trial by judge alone, in the absence of any evidence about what those complexities might be, I cannot give this factor much weight.

Mr Lambie's medical condition and his consumption of methylamphetamine

Counsel for Mr Lambie made a submission that there is a significant prospect that a jury will form a biased or unfavourable view:
(a)of Mr Lambie's behaviour in court; and
(b)about Mr Lambie having heard that he has mental illnesses and that those illnesses are directly related to the use of methylamphetamine.
Counsel for Mr Lambie also made a submission to the effect that intoxication by methylamphetamine itself is an inherently prejudicial matter because it is well known that methylamphetamine has addictive properties and is destructive of mental health.
I do not agree. The prospect that a properly directed jury will not be able to bring an unbiased mind to these matters is remote. Juries are routinely called upon to evaluate the behaviour of the acts of an accused constituting an offence who was affected by illicit drugs and other substances, and the behaviour of an accused and witnesses who exhibit strange behaviour at trial because of mental illness.
Although a person who suffers a mental illness or illness is a vulnerable person, appropriate directions would be given at trial to the jury to explain how they should consider an accused's perception of events and their behaviour. A jury can be expected to give effect to those directions and to approach their duties conscientiously.
It is difficult to understand how it could be said that if a jury observes the effects of Mr Lambie's psychiatric medical conditions that they are likely to be prejudiced by this. Although the jury will be shown Mr Lambie's record of interview, which shows him in a state, as Dr Pascu states, displaying chronic psychotic symptoms, evidence will be given by Dr Pascu and Dr Brett that will explain these symptoms and the effect of these symptoms on Mr Lambie's behaviour. A jury will then be given directions as to how they should consider that expert evidence when making their findings of fact.
There is no reason why Mr Lambie cannot be given frequent breaks during a trial to assist him to deal with his anxiety, and his other medical conditions, including breaks to take medication.
For these reasons, I do not find this factor should be given much weight.

The factual issues to be raised in the trial, other than intoxication

It is common ground, that the primary factual issue is whether Mr Lambie caused the building to catch fire, causing damage to the building and its contents, and killing Ms Jones.
As the State points out in their submissions, Mr Lambie admits to lighting a t-shirt fire and leaving it at the point of the origin of the fire (the spare bed in room 15), but denies the building fire that killed Ms Jones and the damage to the building and its contents were caused by him. He suggests the fire must have been started by Mr Ncube.
On count 8, the State case is put on the dual bases of s 279(1)(b) and s 279(1)(c) of the Criminal Code. There is no scope for community standards to apply in relation to the intent‑based s 279(1)(b), but murder under s 279(1)(c) (felony murder) will, except if liable under s 266, require the State to exclude the defence of accident in order to prove that the killing was unlawful.[6] In this matter, an assessment of whether it was reasonably foreseeable that Mr Lambie's act of lighting the t‑shirt fire in the manner he did would cause the building to catch fire and kill Ms Jones must be determined as a factual issue. The alternative verdict of manslaughter would also require the same assessment.
[6] Collard v The State of Western Australia [2016] WASCA 135.
Proof of specific intent to commit the specified offence is only an element in count 8 murder (insofar as the State relies upon s 279(1)(b)), and count 1, criminal damage by fire, and count 2, with intent to harm did an act that endangers or is likely to life, health or safety.
In respect of count 8 murder (insofar as the court relies upon s 279(1)(b)), counts 1 and 2, the trier of fact will have to decide:
(1)Whether Mr Lambie's act caused the damage to the building and its contents, and caused the death of Ms Jones.
(2)Whether Mr Lambie's act was of such a nature as to be likely to endanger human life.
It is conceded on behalf of Mr Lambie that if the State is able to prove that Mr Lambie did light the fire and cause damage to the building and its contents:
(a)in respect of count 1A, whether Mr Lambie did so in a manner that could be considered, beyond reasonable doubt, to constitute criminal negligence; and
(b)in respect of count 8 (felony murder, s 279(1)(c)), whether it is a reasonably foreseeable consequence that lighting the fire would cause the building to catch fire and to kill Ms Jones;
are issues that require the application of objective community standards.
The State points out that the trier of fact will also have to apply objective community standards when determining whether the State has proved count 2A and counts 3 to 7. Each of these counts raise the issue of whether it was a reasonably foreseeable consequence that lighting the fire was an act that endangered or was likely to endanger the life of Mr Ncube, Ms McKean, Ms Jonasson, Mr Maguire, Mr Lawrence and Mr McCrae. Each of these counts require the State to exclude accident.
Also on count 8 (felony murder), an alternative pathway to proving unlawfulness requires the consideration of criminal negligence under s 266. The trier of fact will be called upon to find that the t-shirt fire was a thing 'of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered'. A live issue will then be whether the trier of fact considers the accused to have breached his duty imposed by s 266 to the standard of being criminally negligent as explained in Macaree v The State of Western Australia.[7]
[7] Macaree v The State of Western Australia [2011] WASCA 207.
The mental element of count 1, criminal damage by fire, requires an assessment of Mr Lambie's subjective state of mind in the context of s 443 of the Criminal Code and the element of wilfulness. The trier of fact will be called upon to decide whether he lit the t-shirt fire 'knowing or believing that the act or omission is likely to result in the destruction of or damage to property',[8] that is the building and/or its contents.[9]
[8] Criminal Code s 443(b).
[9] Fitzpatrick v The Queen [2004] WASCA 99, citing with evident approval Pace v 'H' (A Child) (1994) 12 WAR 35.
In the alternative count 1A, a negligent act or omission, a duty is imposed by s 444A and the offence provision s 445A is constituted by a breach of that duty amounting to criminal negligence. The trier of fact will be called upon to find that Mr Lambie had a reasonable duty to take precautions to contain the t-shirt fire. Similar to count 8 (felony murder), a live issue will then be whether the trier of fact considers Mr Lambie to have breached his duty imposed by s 444A to the standard of being criminally negligent.
The State concedes that a jury will have to grapple with different types of specific intention in counts 1, 2 and 8 as follows:
(a)in respect of the element of intent in count 1:[10]
(i)whether in lighting the t‑shirt fire Mr Lambie intended to destroy or damage property; or
(ii)whether in lighting the t-shirt fire he did so knowing or believing the act would result in destruction of or damage to property.
(b)in respect of the element of intent in count 2, whether Mr Lambie intended to harm Mr Ncube;
(c)in respect of the element of intent in count 8, insofar as the charge relies upon s 279(1)(b), Mr Lambie intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; and
(d)in respect of count 8, insofar as the charge relies upon s 279(1)(c), the State must prove an intention to commit an act in the prosecution of an unlawful purpose.
[10] Criminal Code s 443.
However, as the State submits, none of these concepts of intention are complex or difficult for a properly instructed jury to comprehend.
I agree that these are questions of fact that are ordinarily entrusted to the collective wisdom of a jury drawing upon the life experience of its members. A jury has certain advantages in making findings of fact which a trial judge does not have.
A jury has a variety of life experiences that they bring to the assessment of evidence concerning human behaviour, and are able to make findings of fact of matters going to specific intent and issues that involve community standards that depend on such assessments.

Disposition

Given that the trial will involve the application of ordinary community standards of reasonable foreseeability in the context of accident, and criminal negligence under s 266 of the Criminal Code, this is a factor that weighs heavily in favour of a trial by jury. When the factors relied upon by Mr Lambie are weighed against this factor, this factor outweighs the factors relied upon by Mr Lambie.
For these reasons, I am not satisfied that it is in the interests of justice for the counts on the indictment to be tried by judge alone.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
9 MARCH 2021