Criminal law - Procedure - Application for trial by judge alone - Charges of wilful murder or murder - Issues arising at trial - Insanity - Factors for consideration

Legislation:

Criminal Code, s 27
Criminal Procedure Act 2004 (WA), s 118
Criminal Procedure Rules 2005 (WA), r 28
Evidence Act 1906 (WA), s 32

Result:

Application granted

Category: B

Representation:

Counsel:

Prosecution : Mr J Mactaggart
Accused: Mr J I Brash

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)

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

Arthurs v The State of Western Australia [2007] WASC 182
Hone v The State of Western Australia [2007] WASCA 283
Mickelberg v The Queen (No 3) (1992) 8 WAR 236; (1992) A Crim R 288
The State of Western Australia v Martinez & Ors [2006] WASC 25
The State of Western Australia v Yeskovich [2005] WADC 111
TVM v The State of Western Australia [2007] WASC 299

EM HEENAN J: The accused, Brett David McDonald, is charged with the unlawful homicide of Steven David Petersen. The indictment presented against him by the Director of Public Prosecutions for Western Australia (the DPP) alleges that:
(1) On a date unknown between 31 August 2004 and 1 January 2005 at Munster, [he] wilfully murdered Steven David Petersen.
(2)In the alternate to count (1), between 31 August 2004 and 1 January 2005 at Munster, [he] murdered Steven David Petersen.
The trial of this charge has been listed for a period of 10 days in November 2010 before me sitting with a jury. However, Mr McDonald now applies for:
(1) Leave to vacate the allocated trial date;
(2)Leave to apply for a trial by a judge alone; and
(3)An order pursuant to section 118 of the Criminal Procedure Act 2004 (WA) for a trial by Judge alone without a jury.
As required by r 28 of the Criminal Procedure Rules 2005 (WA), the accused's application is supported by an affidavit which sets out the matters required by that rule.
The trial of indictable offences by a judge sitting without a jury has relatively recent application in Western Australia. It was first established by s 651A of the Criminal Code, which was repealed when s 118 of the Criminal Procedure Act 2004 (WA) came into force. Section 118 of the Criminal Procedure Act provides:
118.Trial by judge alone without a 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The State of Western Australia v McDonald

Details

AGLC: The State of Western Australia v McDonald [2010] WASC 304
Case: [2010] WASC 304
Decision Date: 27 OCTOBER 2010

CaseChat Overview and Summary

The case before the court involved the State of Western Australia prosecuting an individual for charges of wilful murder or murder. The dispute centred around whether the accused should be tried by a judge alone, in light of issues arising during the trial, particularly concerning the accused's insanity. The matter was heard in the Supreme Court of Western Australia.

The court had to determine several legal issues. These included whether the accused's mental state at the time of the alleged offence was such that it warranted a trial by judge alone, rather than a jury. The court also needed to consider the factors that should be taken into account when assessing insanity as a defence, and whether these factors had been adequately addressed during the trial. The primary focus was on the correct application of the law in determining the appropriate trial method and the consideration of insanity as a mitigating factor.

The court examined the relevant statutory provisions and case law to address these issues. It concluded that the trial should proceed by a judge alone, considering the complexities of the insanity defence and the need for a more nuanced evaluation of the accused's mental state. The court emphasised that the decision should be based on a thorough assessment of the evidence and the principles of fairness and justice. The court found that the accused's mental health issues warranted a judge-alone trial to ensure an appropriate consideration of the defence.

The final orders of the court mandated that the trial proceed with a judge alone, taking into account the specific factors related to the accused's insanity defence. The court also directed that the trial should be conducted with careful attention to the principles of fairness and justice, ensuring that the accused's rights were fully protected.

Orders