R v Murray

1. [1]

   On 22 May 2023 the accused was arraigned before me on an indictment containing two charges of murder in the following terms:

   1. (1)

      On 13 August 2021, at Oberon in the State of New South Wales, he did murder Glenn Murray, contrary to s 18(1)(a) Crimes Act 1900 (NSW); and

   2. (2)

      On 13 August 2021, at Oberon in the State of New South Wales, he did murder Susan Murray, contrary to s 18(1)(a) Crimes Act 1900 (NSW).

2. [2]

   To each count on the indictment, the accused entered a plea of not guilty. On the same day, the accused moved on the affidavit of his solicitor, Ms Sarah Hedberg, for an order under s 132 Criminal Procedure Act 1986 (NSW) that he be tried by judge alone. The prosecution do not agree to trial by judge alone and accordingly it is necessary for me to consider whether it is in the interests of justice that I should so order: s 132(4) & (5). I record now that I am satisfied from Ms Hedberg’s affidavit that the accused has sought and received legal advice in relation to the effect of such an order, if made, in accordance with s 132(6).

Issues for trial

1. [3]

   The deceased are, respectively, the father and mother of the accused. The applicant admits that he caused the death of each of his parents by fatally stabbing them. His solicitor has notified the Director of Public Prosecutions of this admission (Hedberg Affidavit [9]). From the material exhibited with Ms Hedberg’s affidavit (Exhibit SH pp 1–159), and from the written submissions for each party, it is obvious that the remaining issues for trial are as follows:

2. [4]

   So far as issues (a) to (c) are concerned, the accused has been examined by two eminent forensic psychiatrists: Dr Dayalan for the defence; and Professor Greenwood for the prosecution. Both have produced very detailed reports reviewing a very large volume of relevant documents and following at least one consultation with the accused. Both appear to agree that when he killed each of his parents, the accused was floridly psychotic. They differ, however, as to the preferable diagnosis and whether the elements of s 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘MFCIFP Act’) or s 23A Crimes Act are engaged. Dr Dayalan is of the opinion that paranoid schizophrenia is the probable diagnosis, while accepting a substance induced psychosis is a possible differential diagnosis. He is also of the opinion that probably by reason of his florid symptoms, the accused did not know that his actions of stabbing his parents were wrong in the statutory sense. Alternatively, so far as it is a matter for expert opinion (cf s 23A(2) Crimes Act), at the time of the relevant acts, the mental capacity of the accused in relevant respects was substantially impaired by the mental health impairment of paranoid schizophrenia.

3. [5]

   Professor Greenwood is of a contrary opinion. While he accepts, as I have said, that at the time of the accused’s acts causing the death of each of his parents, he was floridly psychotic, his preferred differential diagnosis is one of substance induced psychosis. Professor Greenwood is of the view that the material he has reviewed does not support a diagnosis of paranoid schizophrenia. For present purposes it is not necessary to delve into the detail of Professor Greenwood’s opinion, but he is also of the view that the substance induced psychosis, which he has diagnosed was temporary in the sense that it was episodic and directly related to recent substance abuse of cannabis or crystal methamphetamine. This opinion raises a question of whether the accused has a mental health impairment as defined by s 4 of the MHCIFP Act at all.

4. [6]

   Professor Greenwood also expressed the opinion that even on the assumption, contrary to his opinion, that the accused had a mental health impairment, it was not such that it had the effect that he did not know that his acts were wrong. Nor did he consider, so far as it is a matter for expert opinion, any mental impairment was substantial for the purpose of s 23A Crimes Act.

5. [7]

   I should also say while there is an issue about substance induced psychosis, the evidence which the psychiatrists have reviewed, including toxicological results and toxicological opinion, suggests that the accused was not intoxicated as such at the time of the acts causing death.

6. [8]

   It is evident from the content of the reports of the experts, and the differences between them, that a real issue arises as to the reliability of the accused as a medical historian about the onset, maintenance and continuity of the symptoms of his mental disorder.

The submissions of the accused

1. [9]

   Ms C Wasley of Counsel, for the accused, argued that it was in the interest of justice to make an order for a judge alone trial for the following reasons:

Prosecution submissions

1. [10]

   Ms S Lind, Crown Prosecutor, emphasised the importance of factual judgments being made according to objective community standards as required by s 132(5). She referred to R v Flame [2020] NSWSC 1013, at [71]–[73] per Button J, particularly in relation to the “normative question” raised by s 23A(2) Crimes Act. His Honour regarded that consideration as “determinative”; see also R v Camilleri [2020] NSWSC 951; (2020) 287 A Crim R 85 at [68]–[69], per Wilson J; R v Tonga [2020] NSWSC 1829, at [16] per Fagan J; and R v White [2022] NSWSC 1060 at [34], per Ierace J.

2. [11]

   The Crown also argued that as the reliability of the medical history provided by the accused may be important to the resolution of the conflict of expert evidence, a jury was a more appropriate tribunal of fact to weigh and assess such matters: R v McNeil [2015] NSWSC 357; (2015) 250 A Crim R 12 at [102]–[103], per Johnson J.

3. [12]

   The Crown conceded that the objective primary documentary evidence recording the onset and development of the accused’s mental disorder did involve the prospect of the introduction of prejudicial material. Ms Lind submitted that much of the prejudicial material could be edited out of the evidence by the use of “sanitised” summaries or statements of agreed fact. But more importantly, appropriate and clear directions to set aside prejudicial disapproval of aspects of the accused’s lifestyle before empanelment, during the opening and when relevant evidence is introduced, would sufficiently guard against the risk of prejudicial reasoning processes.

4. [13]

   The Crown accepted that an issue may arise as to the interpretation of the definition of mental impairment, but whether the mode of trial was before a jury or by judge alone, such a determination would need to be made by the trial judge and reasons provided. The fact therefore did not tell against trial by jury. The Crown accepted that the preference of the accused was relevant, though only to the extent to which the reasons for that preference bore upon the question of the fairness of the trial: R v Villalon [2013] NSWSC 1516 at [20] (v), per Bellew J.

5. [14]

   The Crown submitted that it was not in the interest of justice that an order for trial by judge alone should be made.

Legal Principles

1. [15]

   As I have already stated, I may only make an order for trial by judge alone in the face of the opposition by the prosecution if I consider “it is in the interests of justice to do so”: s 132(4). The discretion so conferred is to a degree limited by the provisions of s 132(5) (notwithstanding its opening words):

2. [16]

   To state the obvious, the provision must be applied by reference to the facts and circumstances of the case at hand. Although trial by jury may be regarded as the default position (s 131), there is no legal presumption favouring one mode of trial over the other. The only presumption underpinning the operation of s 132 is that the measure of justice is the same, whatever the mode of trial, whether by judge and jury, or by judge alone.

3. [17]

   In these circumstances an applicant for a trial by judge order need rebut no presumption nor discharge any formal burden of proof. But the applicant does bear an evidentiary burden to introduce evidence or argument which engages the statutory discretion. As Chesterman JA said in R v Fardon [2010] QCA 317 at [81], concerning the Queensland legislation, but cited with approval in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 at [118] per Hidden J, “an accused cannot have a trial by judge alone for the asking.” Moreover, while there is no presumption, the discretion must be exercised by reference to the consideration that parliament has assumed that in the ordinary course, a trial for a serious crime on indictment should be by jury: TVM v State of Western Australian [2007] WASC 299; (2007) 180 A Crim R 183.

4. [18]

   In R v Stanley [2013] NSWCCA 124 at [42]-[43], Barr AJ (Macfarlan JA and Campbell J agreeing) said:

Determination

1. [19]

   I accept that the proper presentation of the case for each party will involve proof by one admissible means or another of the whole of the mental health history of the accused. In its present form, the prosecution’s summary of the evidence relevant to that issue refers to aspects of the accused’s criminal record, which is not extensive, and his custodial record in as much as there are references to the clinical records kept and maintained by psychiatrists and others engaged by Justice Health. I accept that such matters are often viewed as capable of having a prejudicial effect on the thinking of a jury, especially evidence of criminal convictions. However, this effect is not invariable nor is it unavoidable. I should add, members of the jury may possibly form a dim view of the voluntary ingestion of prohibited substances or the abuse of prescription medications. Again, this effect is neither inevitable nor unavoidable.

2. [20]

   Given that the central issues in the trial concern the availability of the mental health impairment defence provided under s 28 MHCIFP Act, or in the alternative, the substantial impairment defence under s 23A Crimes Act, the jury at the outset will receive the explanation required by s 29 MHCIFP Act (cf Subramaniam v The Queen [2004] HCA 51; (2004) ALJR 116) and that direction can be fashioned to address any remaining potential for prejudicial effect arising out of the content of the evidence to be given. As always, it is important to bear in mind that the criminal law proceeds on the basis that a jury will understand and act upon directions of law given by the trial judge. I am not of the view that the capacity for prejudice rises to the level discussed by Hamill J in R v Simmons; R v Moore (No 4).

3. [21]

   I accept, given the nature of the medical dispute between Dr Dayalan and Professor Greenwood, an issue arises about the applicability of the provisions of ss 4 and 28 MHCIFP Act and their interplay. Section 4 also affects the availability of the partial defence under s 23A Crimes Act. Doubtless there may be an issue between the parties as to the proper directions of law that should be given to the jury for the resolution of these issues. That issue will need to be resolved by the decision of the trial judge for which reasons will need to be given whether there is a jury or not, as the prosecution submit. Moreover, I am of the view that the obligation of a trial judge to give reasons as an incident of the judicial process is not of itself sufficient reason for deciding whether it is in the interest of justice to make an order for trial by judge alone: R v Belghar at [119] per Hidden J; TVM v Western Australia at [32]. I also note Cavanagh J has undertaken this task of interpretation in the context of a trial by jury in R v Miller [2022] NSWSC 802. With respect, as the correctness of his Honour’s analysis was not argued before me, I make no comment other than to draw the judgment to the attention of the parties.

4. [22]

   I am not of the view that the choice of the accused in this case is of itself a persuasive factor. The accused must always consent before a court can consider exercising the power conferred by s 132 to make an order for trial by judge only. The consent of the accused occasions the consideration of the exercise of the power, it does not determine the outcome. As I have already indicated there is a countervailing consideration of the right of the community to participate in serious criminal trials.

5. [23]

   Likewise, I do not regard the consideration that the reliability of the account of the accused as to his medical history and the development, maintenance and continuation of psychotic symptoms at various times may be challenged by the prosecution is a matter which makes this case unsuitable for trial by jury. The evaluation of witness reliability is a task that juries are required to perform day in and day out in the busy trial courts of this State. It is the experience of those trial courts that juries are well suited to this task.

6. [24]

   I fully appreciate that a criminal trial is an accusatory, as well as adversarial process and the fundamental rule and its companion principle mean that the accused cannot be co-opted to assist the prosecution in proof of its case. On the other hand, the accused carries the persuasive burden of proof on the balance of probabilities under both s 28 MHCIFP Act and s 23A Crimes Act. While the first principle means that the accused is not bound to engage with the prosecution to attempt to arrive at an agreed statement of facts detailing his mental health medical history in an edited fashion, sanitised of the potentially prejudicial material, he will have that opportunity if he chooses to take it. Moreover, the Crown may choose to consider the preparation of a summary under the provisions of s 50 Evidence Act 1995 (NSW), given that the accused’s relevant medical history is well and copiously documented. Obviously, questions of admissibility of such a summary would depend upon the deletion of unnecessarily prejudicial material. I have carefully read the summary exhibited to Ms Hedberg’s affidavit and it seems to me that it could be readily edited into an acceptably anodyne document without violence to relevant content. Obviously, whether such steps are taken or not, the Court has ample power to avoid unfairness to the accused under the provisions of ss 135 and 137 Evidence Act. To the extent to which counsel find themselves unable to agree, the trial judge will have no difficulty making appropriate rulings.

7. [25]

   I should also add, that I do not regard questions of case management or other efficiency dividends that may ensue from trial by judge alone to be relevant. As Kirby P (as his Honour was) pointed out in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 402, “it is… not to the point to consider universal characteristics of jury trials” such as delay and longer hearing time they may necessitate as “[t]hey must be taken to have been known to, and accepted by, Parliament” when enacting s 132 and contemplating that most trials would yet continue as jury trials. His Honour continued:

8. [26]

   For these reasons, I am of the view that the accused has not established that it is in the interest of justice that I order trial by judge alone.

9. [27]

   I wish to say, however, that I do not regard what Button J referred to in R v Flame as the “normative question” raised by s 23A(2) as in any way determinative of the outcome of the application before me. The question of whether any mental health impairment is so substantial as to justify the reduction of liability from murder to manslaughter is not a question expressly referred to in s 132(4). That, of course, is also not determinative. With great respect to those of a different view, it seems to me that the Court is, if anything, better placed to identify and apply the normative standards underpinning s 23A, which are after all those of the criminal law rather than general community standards with which conscientious lay people would be imbued. It is also notable that similar considerations do not inform the availability of the s 28 MHCIFP defence. Clearly, unlike R v Flame and the other cases to which I was referred, listed at [10] above, the normative question in any event is not central to the resolution of the issues at trial. Given the s 28 issue, the pertinence of the s 23A question is somewhat reduced. By this I mean it is not the sole or central issue upon which the question of the criminal responsibility of the accused depends.

10. [28]

    For these reasons my orders are:

    1. (1)

       The application for trial by judge alone under s 132 Criminal Procedure Act 1986 (NSW) is refused.

    2. (2)

       Under s 7 Court Suppression & Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(a) of the said Act that it is in the interest of the administration of criminal justice, these reasons for judgment are not to be published except to the legal representatives of the parties and on the restricted case law website until the delivery of the jury’s verdict at trial