The State of Western Australia v Pal - [2023] WASC 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAL [2023] WASC 157
CORAM:   MCGRATH J
HEARD:   15 MAY 2023
DELIVERED          :   17 MAY 2023
FILE NO/S:   INS 33 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHUDIER THOWATH PAL
Respondent

Catchwords:

Criminal procedure - Accused's application for trial by judge alone - 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 a trial by judge alone granted

Representation:

Counsel:

Applicant	:	Ms K Robinson
Respondent	:	Ms K J Farley SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

Cases referred to in decision:

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 Pal, has been indicted on two counts namely, that on 2 January 2021 he murdered Stephanie Robinson, contrary to s 279 of the Criminal Code, and one count that he wilfully and unlawfully damaged property by fire, contrary to s 444(1)(a) of the Criminal Code.
Mr Pal has pleaded not guilty to the counts and is proceeding to trial.
Mr Pal 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.[1]
[1] Application dated 18 April 2023.
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 at the trial will be whether Mr Pal was of unsound mind at the time of the alleged offending pursuant to s 27 of the Criminal Code.
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 Pal 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 Amended Statement of Material Facts that forms part of the brief of evidence that has been filed. The facts are in the following terms:
The victim is a 30-year-old female, 164 centimetres tall and of a slim build. The accused is a 29-year-old male, 206 centimetres tall and of athletic build.
The victim is in an intimate relationship with the accused.
On Friday 1 January 2021, the accused, victim, and an associate of the victim were at their home address of 114 Ravenscar Street, Doubleview.
During the evening the victim's associate departed the address. The accused and victim remained at home.
Between the Friday evening and 6:00 am on Saturday 2 January 2021, whilst in the lounge room the accused became involved in a physical altercation with the victim. The accused struck the victim to the head causing catastrophic head injuries resulting in the rupture of her skull, exposing a large cavity.
At about 6:16 am the accused left his address and walked to a nearby friend's house. The accused walked into the address and said to his friend, "I've crushed her skull, I've killed her". The accused asked for a lighter and said he was going back to burn down the house. The accused left in possession of a white cigarette lighter.
At about 6:48 am the accused returned to his address. He doused a mattress in an unknown accelerant and placed it over the victim. The accused ignited the mattress and left the house in possession of a blood‑stained doona.
The accused set fire to a green council bin located near the carport. At about 6:52 am he left the property still in possession of the doona.
The accused walked south along Ravenscar Street, approaching a bin outside house 133A. He placed the bloodied doona in the bin and continued down the street.
Closed Circuit Television (CCTV) along Ravenscar Street captures the accused's movements, including the disposal of the doona.
At about 7:00 am neighbours of the deceased observed smoke coming from within the victim's house and her council bin which was fully alight.
Department of Fire and Emergency Services (DFES) attended the address and found the house to be smoke logged. Shortly after, DFES located the deceased who had been severely burned.
The accused later attended a friend's house in Balga where he made admissions to killing someone.
At about 2:00 pm the accused voluntarily attended Warwick Police Station, 37 Eddington Road, Warwick. The station was closed to the public, so the accused contacted Police Assistance Centre (PAC) via the intercom. The accused spoke with a police operator and stated he had killed a person in Doubleview and he had attended the station to hand himself in.
At about 2:09 pm the accused was arrested at the front of the police station. At the time of his arrest he was in possession of a white cigarette lighter as well as a container of an unidentified solvent. He was later conveyed to Sir Charles Gairdner Hospital where he was treated for minor injuries.

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.[2]
[2] 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.[3] The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.[4]
[3] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [317].
[4] 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.[5] 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.[6]
[5] LFG v The State of Western Australia, [318].
[6] 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.[7] 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'.[8]
[7] LFG v The State of Western Australia, [319] - [320].
[8] 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.[9] 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.[10]
[9] LFG v The State of Western Australia, [321].
[10] 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.[11] 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.
[11] 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.[12]
[12] 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.[13] However, as McKechnie J observed in TVM v The State of Western Australia,[14] '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'.[15] That is because the interests of justice are not coterminous with the interests of an accused.
[13] Arthurs v The State of Western Australia [2007] WASC 182, [79] - [80]; The State of Western AustraliavRayney, [26].
[14] TVM v The State of Western Australia, [2007] WASC 299.
[15] 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,[16] but there are differing views as to whether this is a relevant factor.[17] I do not accept that the obligation to provide written reasons is a relevant factor.
[16] Arthurs v The State of Western Australia, [73] - [76].
[17] 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.[18]
[18] 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.[19] 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.[20]
[19] Criminal Procedure Act 2004 (WA), s 118(5)(a).
[20] The State of Western Australia v Rayney, [37].
There is not necessarily any time saved if an accused has a judge alone trial.[21] Certainty 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.
[21] 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.[22]
[22] Criminal Procedure Act, s 118(5)(a).
The fact that a State's case is based upon circumstantial evidence has also been considered to be a factor supporting a trial before a jury.[23] 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.[24]
[23] The State of Western Australia v Martinez& Ors, [36].
[24] 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.[25] 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.[26]
[25] LFG v The State of Western Australia, [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260.
[26] 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,[27] 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.
[27] 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.[28]
[28] 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:[29]
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.
[29] 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:[30]
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]).
[30] 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:[31]
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.
[31] TVM v The State of Western Australia, [6].
In Arthurs v Western Australia,[32] 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,[33] and The State of Western Australia v Iley.[34] 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.[35]
[32] Arthurs v State of Western Australia.
[33] The State of Western Australia v Tarau [2005] WASC 290.
[34] The State of Western Australia v Illey [2006] WASC 290.
[35] 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.[36] Miller JA stated:[37]
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.
[36] Hone v The State of Western Australia [2007] WASCA 283, [18] (Miller JA, with Wheeler JA agreeing).
[37] 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,[38] 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.[39] That defence does involve an assessment of community standards.
[38] The State of Western Australia v Evans [2012] WASC 87.
[39] The State of Western Australia v Evans.

Evaluation of the interests of justice

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 led at trial will be more properly considered by a judge sitting alone without a jury.
The application is supported by the affidavit of Ms Farley SC, sworn 9 February 2023, that attests that Mr Pal 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. Ms Farley SC states that the issue at trial will be whether Mr Pal was of unsound mind at the time of the commission of the physical events giving rise to the counts of murder and arson. Ms Farley SC deposes that the defence case does not involve any substantive factual issues requiring the application of objective community standards.
In oral submissions, Ms Farley SC stated that it is anticipated that the trial may be conducted with an agreed statement of facts. Therefore, the expert witnesses will be the only witnesses required at trial.
The State has obtained an expert report from Dr Adam Brett, psychiatrist, dated 23 December 2022 and a report from Dr Jonathon Grasko, medical practitioner and consultant chemical pathologist, dated 2 May 2023. The accused has obtained two expert reports from Dr Pascu, psychiatrist, dated 24 August 2021 and 26 April 2022 respectively. I have considered the expert reports. In addition, I have considered the reports from Dr Brett dated 25 May 2022 and Dr Rooprai, psychiatrist, dated 25 March 2022, addressing the issue of the accused's fitness to plead.
Dr Brett, in his report dated 23 December 2022, made a diagnosis that Mr Pal suffers from a schizoaffective disorder and a substance abuse disorder. Dr Brett stated that Mr Pal experienced a number of psychotic phenomena at the time of the alleged offences. Dr Brett expressed the opinion that Mr Pal, at the time of the offences, had a mental impairment that deprived him of the capacity to control his actions and further, that it deprived him of the capacity to know that he ought not do the act.
Dr Pascu diagnosed that Mr Pal is suffering from a psychotic disorder, likely paranoid schizophrenia with prominent affective symptoms, with a differential diagnosis of schizoaffective disorder. Dr Pascu expressed the opinion that at the time of the alleged offences, Mr Pal was suffering from an acute affective paranoid psychotic episode as part of an underlying undiagnosed and untreated major mental illness, namely paranoid schizophrenia. Dr Pascu expressed the opinion in her report dated 24 August 2021 that at the time of the alleged offence, Mr Pal was deprived of the capacity to know that he ought not to do the act due to his ‘acutely impaired mental state and impaired judgment'.
Dr Grasko expressed the opinion that whilst Dr Brett's diagnosis is ‘the most likely diagnosis, considering Mr Pal's heavy persistent drug use in the setting of an untreated psychotic disorder, amphetamine-induced delusional disorder may need to be considered'.

Conclusion

It may be concluded from the submissions of counsel that the principal 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 should be assessed 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 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 paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
17 MAY 2023