The State of Western Australia v Ugle
[2018] WASC 337
•7 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [2018] WASC 337
CORAM: PRITCHARD J
HEARD: 26 OCTOBER 2018
DELIVERED : 26 OCTOBER 2018
PUBLISHED : 7 NOVEMBER 2018
FILE NO/S: INS 260 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
TANYA MYNETTE UGLE
Defence
Catchwords:
Criminal law - Criminal procedure - Application for trial by judge alone - Competing psychiatric evidence - Insanity and voluntary intoxication in issue
Legislation:
Criminal Code, s 27, s 28, s 279
Criminal Procedure Act 2004 (WA), s 118
Result:
Application granted
Category: B
Representation:
Counsel:
| Prosecution | : | Mr S O'Sullivan |
| Defence | : | Mr A E Eyers |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Defence | : | Ian Hope Barristers and Solicitors |
Case(s) referred to in decision(s):
Chiha v The State of Western Australia [No 2] [2015] WASC 147
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 Herbert [2017] WASC 101
PRITCHARD J:
(These reasons were delivered extemporaneously on 26 October 2018 and have been edited from the transcript.)
Ms Ugle has been charged with the murder of Mr Jamahl Jordan Ugle, contrary to s 279 of the Criminal Code. Mr Ugle was the biological son of the accused. The accused's trial is listed to commence in this Court on 3 December 2018.
Ms Ugle now applies for a trial by a judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (Application).
The Application is supported by the affidavit of Anthony Eyers sworn 17 October 2018.
The State does not oppose the Application.
An application of this kind is to be made before the parties know of the identity of the trial judge.[1] The parties do not know the identity of the trial judge.
[1] Criminal Procedure Act 2004 (WA) s 118(2).
Having heard the submissions of counsel today as to the issues which will be in dispute at trial, for the reasons which follow, I am satisfied that it is in the interests of justice that there be a trial by judge alone in this case.
Section 118 of Criminal Procedure Act
Section 118 of the Criminal Procedure Act 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 TheCriminal 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 operation of s 118 has been considered in a number of cases in this Court, including by the Court of Appeal most recently in Steele v The State of Western Australia[2] and the Court of Appeal in LFG v The State of Western Australia,[3] and in numerous decisions of single judges of this Court.
[2] Steele v The State of Western Australia [2018] WASCA 133 [11] - [16].
[3] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.
In determining the Application, I apply the principles applicable to s 118 applications which were set out by the Court of Appeal in Steele:[4]
[4] Steele v The State of Western Australia [2018] WASCA 133 [11] (the Court) (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 State's case
The State's case against Ms Ugle is summarised in the statement of material facts, which forms part of the brief. The allegation made by the State is that in November 2016 Ms Ugle and Mr Ugle were in company together at the bus exchange in Fremantle. They boarded a bus, but around the time of its departure the bus driver stopped the vehicle due to Ms Ugle's disorderly behaviour, and requested she leave the bus. She got off the bus and was followed by Mr Ugle. The State says that Mr Ugle pushed Ms Ugle on her shoulder, causing her to lurch forward. Ms Ugle then dropped the items she was carrying, and retrieved a knife which had been concealed in her clothing. She then proceeded to stab Mr Ugle to the left side of his chest. The injuries he sustained are said to have been the cause of his death a couple of days later. Ms Ugle was apprehended a short distance away, and her arrest followed.
The basis for the Application
The affidavit of Mr Eyers confirms that there is likely to be little or no factual dispute in relation to the circumstances surrounding the death of Mr Ugle. A discussion with counsel this morning has confirmed that there may be a need for evidence from some witnesses as to those surrounding circumstances only in order to assist the trier of fact to understand the behaviour of Ms Ugle in the time leading up to the death of Mr Ugle, and immediately afterwards.
However, there is no dispute, as I understand it, that Ms Ugle caused the death of her son by stabbing him. The only issues in the trial, according to counsel for Ms Ugle, will be those which concern the application of s 27 of the Criminal Code, and the effect of any potential voluntary intoxication upon the application of s 27 of the Code, by virtue of s 28(2) of the Code.
Annexed to Mr Eyers' affidavit are two psychiatric reports - one obtained by the State and one obtained by counsel for Ms Ugle on her behalf.
The State's psychiatrist indicates that Ms Ugle has a history of psychotic episodes, and her symptoms developed against a background of childhood trauma and drug use. She expresses the view that Ms Ugle's symptoms disclose the presence of schizophrenia, characterised by the presence of psychotic symptoms, such as delusions and disorganisation of thought. The State's psychiatrist concludes that Ms Ugle knew what she was doing at the time when she took the knife and used it to stab her son.
As to whether Ms Ugle had the capacity to know she ought not do that act, the State's psychiatrist accepts the matter is more complicated. She is of the view that while there was no doubt that Ms Ugle's judgment was impaired due to the presence of psychosis, and that there was also a possibility of auditory hallucinations, there were nevertheless some indications that Ms Ugle attempted to evade security and tried to conceal the knife. The State's psychiatrist expresses the opinion that Ms Ugle knew that she should not have done what she did.
As to Ms Ugle's capacity to control her actions, the State's psychiatrist indicates that she had no doubt that Ms Ugle's mental state was altered by psychotic symptoms, to the point where she was unable to plan, judge or inhibit her impulses. However, the State's psychiatrist indicates that a question that cannot be answered with certainty pertains to the origins of Ms Ugle's mental state at the time of the alleged offence, as she had not been treated in the previous four months for her psychiatric condition, and it was difficult to pinpoint exactly the time when her symptoms started to reflect an underlying functional illness, such as schizophrenia, and were not just the result of use of prohibited drugs.
In contrast, the psychiatrist engaged by counsel for Ms Ugle on her behalf expresses some differing opinions. They are that Ms Ugle has a documented history of paranoid psychotic disorder which has been intermittently treated over the years, and that she was not deprived of the capacity to know what she was doing when she stabbed Mr Ugle. She opines that Ms Ugle was deprived of the capacity to know that she ought not do that act due to her impaired mental state and impaired judgment, and she was deprived of the capacity to control her actions due to her serious untreated mental illness. She notes that Ms Ugle has a history of drug abuse and reported regular use of prohibited drugs.
The psychiatrist engaged in Ms Ugle's defence is of the view that the underlying untreated serious mental illness suffered by Ms Ugle significantly contributed to her impaired judgment and her capacity to understand the consequences of, and to control, her actions. She notes that Ms Ugle had reported using illicit drugs in the days leading up to the offence. She concludes that it was more likely than not that Ms Ugle's altered mental state was mainly due to her untreated chronic psychotic illness, possibly complicated by drug use, and forms the opinion that Ms Ugle's altered mental state was secondary to (which I take to mean 'affected by') her untreated psychotic illness, and not 'secondary to' a drug induced psychotic state alone.
It is clear that there is a dispute on the psychiatric evidence to be adduced at the trial. The primary task for the trier of fact will be to resolve the questions of whether Ms Ugle was of sound mind at the time of the offence, whether she had one of the intentions necessary to constitute murder, and if she did not have such an intention, whether the reason for that was voluntary intoxication.
Disposition
I turn now to consider the factors that are said to be relevant to the interests of justice in this case. The Court's view as to whether a trial by a judge alone is warranted in the interests of justice is to be formed having regard to the policy and legal issues discussed by the Court of Appeal in Steele and LFG, as well as to the views of the parties. To deprive an accused of the mode of trial of a jury of his or her peers, which is the means by which criminal guilt has been determined for centuries and which, at least in respect of federal offences, is expressly recognised in the Constitution, is no small thing. That is the reason why there is a need for a real and substantial, as distinct from a remote, risk as to whether an accused will receive a fair trial according to law before a jury.
There are a number of factors of relevance to this question which must be taken into account in this case. I take into account the view of Ms Ugle, that a trial by a judge alone is warranted in this case to ensure that she gets a fair trial. Her view is relevant but not determinative. I take into account the State's view, which is not to oppose the Application, having regard to the confined nature of the issues which will require determination at trial. Again, the State's view is relevant but not determinative. The determinative issue, of course, is the Court's view of whether it is in the interests of justice to order a trial by a judge alone.
I have taken into account the fact that the trial will involve expert evidence. Juries commonly deal with expert evidence. The fact that a trial will involve expert evidence does not, of itself, mean that the interests of justice will warrant a trial by a judge alone.
In this case, the expert evidence is in conflict, but even that is not of itself determinative. Juries are frequently called upon to resolve matters which involve conflicting expert evidence.
The focus on psychiatric evidence in this case suggests that community standards are not going to be at the forefront of the issues in this trial, even though some evidence from lay witnesses may be led. That is also a relevant consideration in determining where the interests of justice lie here.
There have been a number of cases in this Court which have been discussed in the authorities (including, for example, the decision of Hall J in Chiha v The State of Western Australia [No 2])[5] in which an issue of insanity has been raised in the context of an alleged homicide, and a trial by judge alone has been ordered, having regard to competing psychiatric evidence. The fact that there is competing psychiatric evidence does not, of itself, necessarily require a trial by a judge alone, in the interests of justice. However, the cases in this Court where that conclusion has been reached reflect an acknowledgment that the resolution of the sorts of issues that often arise in the application of s 27, including its application having regard to s 28(2) of the Code, will require an understanding of psychiatric illnesses, their causes and diagnoses, which are matters of some factual complexity. The need to grapple with conflicting expert evidence on those issues can give rise to a real and substantial risk that a jury may have difficulty dealing with such issues, and for that reason an accused may be denied a fair trial according to law if a trial by jury proceeds.
[5] Chiha v The State of Western Australia [No 2] [2015] WASC 147.
The application of s 27 of the Code, and the impact of any voluntary intoxication on the formation of a specific intent necessary for the offence of murder, involves a further degree of complexity in the application of legal principles to the evidence. That difficulty was summarised by Hall J in Chiha:[6]
the principal issues in this case will require a determination of conflicting psychiatric evidence. That may need to be done both at the stage of considering whether the accused is of unsound mind, which will be the first question to be addressed, but then also in considering whether the accused had a specific intention. The necessity to consider the psychiatric evidence in both of those contexts does raise a level of complexity. Not only will the finder of fact have to consider the conflicting psychiatric evidence in some detail to compare it and to consider how each of the psychiatrists have approached the question and reached their conclusions, it may then be necessary to consider that psychiatric evidence in two different contexts in which the onus and standard of proof is different. That is because the onus of proving a lack of mental capacity under s 27 is on the accused and the standard is the balance of probabilities, whereas the onus of proving a specific intent is on the prosecution and the standard is beyond reasonable doubt. That does raise an additional level of complexity that I do consider may be problematic for a jury.
An illustration of that degree of complexity is also amply provided by the decision of Jenkins J in The State of Western Australia v Herbert.[7]
[6] Chiha v The State of Western Australia [No 2] [2015] WASC 147 [24].
[7] The State of Western Australia v Herbert [2017] WASC 101.
Having regard to all of the factors to which I have referred, I am satisfied that there is a real and substantial doubt that Ms Ugle will be afforded a fair trial according to law if she is tried before a jury. I am therefore satisfied that it is in the interests of justice that she be tried before a judge alone.
The Application will be granted, and the order of the Court will be that pursuant to s 118 of the Criminal Procedure Act, the accused is to be tried before a judge alone.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD7 NOVEMBER 2018
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