The State of Western Australia v McCullock

[2024] WASC 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MCCULLOCK [2024] WASC 143

CORAM:   FORRESTER J

HEARD:   23 APRIL 2024

DELIVERED          :   23 APRIL 2024

FILE NO/S:   INS 49 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

SARA JADE MCCULLOCK

Accused

Catchwords:

Criminal Procedure - Accused's application for trial by judge alone - Murder - s 27 of the Criminal Code - Expert psychiatric evidence - Turns on own facts

Legislation:

Criminal Code
Criminal Procedure Act 2004 (WA)

Result:

Application for trial by judge alone granted

Category:    B

Representation:

Counsel:

Prosecution	:	M M Cvetkoski
Accused	:	Ms S Auburn

Solicitors:

Prosecution	:	Director of Public Prosecution (WA)
Accused	:	S Auburn

Case referred to in decision:

Steele v The State of Western Australia [2018] WASCA 133

FORRESTER J:

(This judgment was delivered extemporaneously on 23 April 2024 and has been edited from the transcript.)

Introduction

1. The accused is charged that on or about 26 April 2022 at Madora Bay she murdered Jace Air Martin, contrary to s 279 of the Criminal Code (WA).

2. The accused has applied for an order that she be tried by judge alone without a jury, pursuant to s 118(1) of the Criminal Procedure Act 2004 (WA).

Statutory framework and legal principles

1. 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.

2. The relevant legal principles in relation to s 118 were summarised by the Court of Appeal in Steele v The State of Western Australia[1] and it is unnecessary to repeat them.

   [1] Steele v The State of Western Australia [2018] WASCA 133 [11].

Prosecution case

1. It is alleged that on 26 April 2022, the accused and her 14‑month‑old son were at home, where they lived with the accused's mother.

2. Between 5.00 pm and 6.00 pm the accused's sister and mother spoke with the accused at the house.  The accused had been acting in a way that her sister and mother regarded as unusual and erratic and they were concerned the accused had not been taking her medication and that her mental health had deteriorated.

3. The accused's sister and mother were unable to persuade the accused to seek medical attention that night, but the accused agreed to go to a medical practitioner on 28 April 2022.  The accused's sister and mother then left the house between 7.30 pm and 8.00 pm, leaving the accused and her son alone.

4. At the time they left, the accused's son was asleep in her arms.  He was not suffering any illness or injury.

5. The following morning, at about 5.00 am, police were called to attend the house, relating to a disturbance.  The accused was playing loud music and walking through the house laughing.  She was not responsive to police.

6. When police entered the house, they saw the accused walking out of the theatre room holding her son in her arms who was pale and had obvious injuries to his head and face.  His jumper was soaked in blood and there was blood on the floors and walls in the house.

7. The accused said someone had entered her home and slammed her child on the ground.

8. It was plain that the child was deceased.  A post‑mortem revealed he had suffered a severe head injury, including multiple skull fractures and a traumatic brain injury.  He also had a number of other injuries which it is not necessary to detail here.

9. No alcohol or prohibited drugs were detected in a blood sample taken from the accused at 2.45 pm on 27 April 2022.

10. The accused later told staff at the Frankland Centre she had killed her son because she believed he was going to be tortured for eternity and she had struck him on the ground, believing that killing him would prevent him from being tortured.

11. The accused will make the following admissions at trial:

    (1)Jace Air Martin died on or about 26 April 2022;

    (2)Jace Air Martin died as a result of head injuries; and

    (3)The accused did the acts which caused Jace Air Martin's death by striking his head on the ground.

12. There will be evidence at the trial of previous episodes of mental ill‑health on the part of the accused.  There will also be evidence of the behaviour of the accused in the lead up to and after the accused's death.

13. The accused relies on the medical report of Dr Adam Brett, Consultant Psychiatrist.  Dr Brett is of the opinion that the accused was deprived of both the capacity to control her actions and the capacity to know that she ought not do the act.  He does not believe the accused was acutely intoxicated at the time of the acts which caused the death of the deceased.

14. The State relies on the medical report of Dr Pascu, Consultant Forensic Psychiatrist.  Dr Pascu was of the opinion that, at the time she did the act which caused the death of the deceased, the accused was deprived of the capacity to know that she ought not to the act, and that she was deprived of that capacity due to her acutely impaired mental state and impaired judgement.  Further, while she was not deprived of her capacity to control her actions, that capacity was severely impaired. 

Application

1. The application can only be made if the identity of the trial judge is unknown to the parties.  I am satisfied that that precondition is made out.

2. It is argued, on behalf of the accused, that it is in the interests of justice that a trial by judge alone be ordered because 'there is a real and substantial doubt as to whether the accused will receive a fair trial according to law' given that:

   (1)the jury may have difficulty in properly understanding intricate and disputed expert psychiatric evidence to be adduced at the trial and in properly applying difficult legal principles in the context of complicated questions of fact; and

   (2)the nature 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.

3. As the accused has made the admissions sought, and the sole issue at the trial is likely to be whether the accused was of unsound mind at the time of the acts causing the deceased's death, the State does not oppose an order for trial by judge alone.  As is pointed out by both parties, the issue of intention will only need to be determined after the issue of unsoundness of mind.

Disposition

1. In my view, it is in the interests of justice for this matter to be dealt with by judge alone.

2. The primary issue is whether the accused has proved, on the balance of probabilities, that she lacked at least one of the capacities set out in s 27 of the Criminal Code.

3. The expert evidence which will be adduced in relation to that issue is technical but, in my view, it is not incapable of being properly understood by a jury.

4. The factual foundation of the expert evidence includes previous conduct of the accused, some of which is potentially discreditable.  It is necessary for that evidence to be led in order for the tribunal of fact to have a proper appreciation of the accused's diagnosis and its effect on her.  In my view, a jury would properly follow directions as to the manner in which such evidence could be used, but it is a factor in favour of granting a trial by judge alone.

5. Further, having regard to the admissions to be made by the accused, there is a limit to the evidence which would need to be led at trial as to the injuries suffered by the deceased.  There would certainly need to be no images adduced.  While the act said to have occurred is, without doubt, distressing, I do not consider that the accused would be unable to get a fair trial before a jury. 

6. Notwithstanding this, having regard to the provisions of s 118, the admissions made by the accused and the fact that the experts are largely in agreement as to the lack of capacity of the accused pursuant to s 27, I am satisfied that it is in the interests of justice for there to be a trial by judge alone in this case.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT

Associate to the Honourable Justice Forrester

24 APRIL 2024