The State of Western Australia v Siddique
[2016] WASC 125
•21 APRIL 2016
THE STATE OF WESTERN AUSTRALIA -v- SIDDIQUE [2016] WASC 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 125 | |
| 21/04/2016 | |||
| Case No: | INS:326/2015 | ON THE PAPERS | |
| Coram: | HALL J | 21/04/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA NOOR MOHAMAD SIDDIQUE |
Catchwords: | Criminal law Trial by judge alone Whether order for trial by judge alone in the interests of justice Turns on own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 118 |
Case References: | Chiha v The State of Western Australia [No 2] [2015] WASC 147 Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 LFG v The State of Western Australia [2015] WASCA 88 The State of Western Australia v Brown [No 2] [2013] WASC 280 TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
NOOR MOHAMAD SIDDIQUE
Defence
Catchwords:
Criminal law - Trial by judge alone - Whether order for trial by judge alone in the interests of justice - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 118
Result:
Application granted
Category: B
Representation:
Counsel:
Prosecution : No appearance
Defence : No appearance
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Mark Andrews Legal
Case(s) referred to in judgment(s):
Chiha v The State of Western Australia [No 2] [2015] WASC 147
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
LFG v The State of Western Australia [2015] WASCA 88
The State of Western Australia v Brown [No 2] [2013] WASC 280
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
1 HALL J: The accused is charged that on 26 May 2015 he murdered Cedric Lionel Rowe. He has entered a plea of not guilty to that charge and a trial has been set down for seven days commencing on 20 October 2016.
2 An application has been filed by the accused seeking an order that his trial be by judge alone. That application is made pursuant to s 118 of the Criminal Procedure Act 2004 (WA). Any such application must be made before the identity of the trial judge is known to the parties. In this case the identity of the trial judge is not yet known. The State does not oppose the making of an order for trial by judge alone.
3 In support of the application the solicitor instructed on behalf of the accused, Mr Mark Andrews, has sworn an affidavit dated 5 April 2016. That affidavit states that the accused intends to admit facts pursuant to s 32 of the Evidence Act 1906, including that he stabbed the deceased multiple times on 26 May 2015 and thereby caused his death. Mr Andrews deposes that the central issue for determination at trial will be the accused's mental capacity at the time of the alleged offence. This will be the subject of expert evidence from a number of psychiatrists.
4 Both the defence and the prosecution have filed written submissions. The parties have indicated that they are content for me to make a decision on the papers filed and do not seek to make oral submissions. At a status conference on 21 April 2016 I made an order that the trial be by judge alone and said that written reasons for that decision would be published in due course. These are my reasons for the order.
Relevant principles
5 Section 118 of the Criminal Procedure Act provides as follows:
(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.
6 The terms of s 118 were recently considered by the court of appeal and LFG v The State of Western Australia [2015] WASCA 88. At [318] - [325] Buss JA (with whom Mazza JA agreed) said:
Although s 118(4) confers a power on the court to make an order that an accused, who is committed on a charge to a superior court or indicted in a superior court on a charge, be tried by a judge alone, the court may only make that order 'if', relevantly, it considers it is 'in the interests of justice' to do so. In other words, the court may not make an order that the trial of the charge be by a judge alone unless the court considers, relevantly, that it is in the interests of justice to do so. Accordingly, 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.
The phrase 'in the interests of justice' has a broad connotation. It is not defined in s 118 or elsewhere in the Criminal Procedure Act. The phrase takes its meaning in s 118 from the context in which it is used.
The concept of 'in the interests of justice', in s 118, 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.
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, of course, the only) issue with which s 118 is concerned. It will be 'in the interests of justice', within s 118(4), 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. See Coates v Western Australia [2009] WASCA 142 [104] (Buss JA, Martin CJ agreeing).
It is apparent, at least from s 118(5), that the legitimate interests of jurors is an aspect of the public interest within the concept of 'in the interests of justice' in s 118.
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.
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.
In my opinion, on a proper construction of s 118, in the context of the Criminal Procedure Act as a whole, the stipulation in s 118(4) that the court may make an order that the trial of the charge be by a judge alone if (and only if) the court considers it is in the interests of justice to do so, requires that:
(a) a process of evaluation be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone; and
(b) the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury.
7 At [337] Buss JA referred to some of the circumstances in which an order for a trial by judge alone may be justified:
It may be 'in the interests of justice', within s 118(4), 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 (Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);
(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 (Bell v Western Australia [2014] WASC 260); 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 (Western Australia v Brown [2013] WASC 280; Chiha v Western Australia [No 2] [2015] WASC 147).
See also, for example, the facts in Arthurs v Western Australia [2007] WASC 182 and Schmidt v Western Australia [No 3] [2014] WASC 156.
8 The third of the categories referred to by Buss JA is relevant in this case. As I have earlier noted the only issue at trial is likely to be whether the accused was of sound mind at the time of the alleged offences. Trials where the mental capacity of an accused is in question, especially where there is little dispute as to the facts, are often the subject of trial by judge alone: TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183. See also Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 ; The State of Western Australia v Brown [No 2] [2013] WASC 280 and Chiha v The State of Western Australia [No 2] [2015] WASC 147.
The prosecution case
9 The prosecution case is that on the afternoon of Tuesday 26 May 2015, the accused was at his home, a unit in South Perth. The deceased was present, having been invited for a drink by the accused. At some point the accused tucked a knife into his pants. It is alleged that whilst in the hallway of the unit he took out the knife and stabbed the deceased numerous times to the back, shoulder and buttocks. The deceased fell to the ground and died as a result of his injuries. The accused covered the body of the deceased with a blanket, leaving him on the kitchen floor and left the premises a short time later. That night he stayed at a backpacker's hostel in the city.
10 The following morning the accused picked up a person he worked with in his vehicle. He told the other man that he needed to clean his unit up and wanted to go to Bunnings to get some heavy duty garbage bags. They went to Bunnings where the accused purchased some large garbage bags as well as latex gloves. As they drove away the accused asked the other man if he would help with cleaning his house. The other man agreed and they drove to the unit in South Perth. On entering the unit the other man saw blood on the floor and then what appeared to be a human figure lying on the kitchen floor covered by a doona. On seeing this, the other man said he wanted nothing to do with it and immediately left the unit. The other man subsequently reported the matter to the police.
11 The accused remained at the unit and wrapped the body of the deceased in plastic bags. He attempted to move the body but was unable to move the deceased past the entry. The accused then left the unit and enlisted another friend to drive him to a service station where he bought paper towels and bleach to clean the blood in his unit. Later that day he was arrested by major crime squad detectives. He was interviewed and made full admissions to the stabbing of the deceased.
12 After his arrest the accused was placed on a hospital order pursuant to s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and was referred to the Frankland Centre at Graylands Hospital. He was assessed as suffering from a mental illness which required treatment in an acute inpatient unit. He was initially unfit to plead or stand trial, but after treatment, including with anti-psychotic medication, his condition improved sufficiently that he was considered fit to plead and stand trial. This was confirmed by a report from a consultant forensic psychiatrist dated 22 March 2016.
Psychiatric reports
13 The prosecution and defence have instructed expert witnesses to provide psychiatric reports regarding the mental state of the accused at the time of the alleged offence. Those reports have not yet been filed with the court, however they will address the issue of whether the accused had a mental impairment in terms of s 27 of the Criminal Code (WA).
14 The report to the court from the consultant forensic psychiatrist of 22 March 2016 states that on admission on 28 May 2015 the accused was observed to be responding to unseen stimuli and reported hearing voices talking to him. He believed he was receiving signs from God in his dreams and that he was a prisoner in his home. He expressed paranoid beliefs regarding other people. Initial treatment in hospital did not dispel these beliefs. He continued to believe that he was being persecuted and that the deceased was the head of a gang that was committing offences and planned to kill him. A different type of anti-psychotic medication was subsequently commenced and this produced significant improvement. A diagnosis of a paranoid schizophrenia, harmful drug use and a history of trauma with possible post-traumatic stress syndrome was made. The report states that use of drugs by the accused may have been a precipitating factor for the development of schizophrenia, or may have reflected an attempt to self-medicate for emerging symptoms. The report states that the accused's account of events suggest that he developed schizophrenia sometime prior to the alleged offence and that his paranoid delusional beliefs were a significant factor in the incident. Symptoms of psychosis were said to be certainly evident on admission to the Frankland Centre and persisted for many months dispute high doses of medication and in the absence of drug use.
Conclusion
15 The central issue in this case will be whether the accused was of sound mind at the relevant time. This issue will require careful consideration of detailed, and possibly conflicting, psychiatric evidence. Trial judges are accustomed with dealing with such expert evidence. On the other hand a jury may have greater difficulty in properly understanding such evidence and applying it to difficult legal principles. The possibility that voluntary use of drugs may have precipitated a mental illness further complicates the picture. The parties have indicated that the interaction of s 27 and s 28 of the Criminal Code (WA) is likely to be an issue at the trial.
16 The State consents to the making of an order for trial by judge alone. It is accepted that the factual issues will be largely conceded and that there will be no matters requiring the application of community standards such as to make trial by jury appropriate. The State also notes that trial by judge alone will have the advantage that uncontested evidence can be presented in a truncated and abbreviated form. A jury trial would likely be longer and require more witnesses to give oral evidence.
17 In all the circumstances I am satisfied that it is in the interests of justice to order that the trial of the accused be by judge alone without a jury. For those reasons an order in those terms was made on 21 April 2016.
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