R v White

1. [1]

   The accused is charged with one count of murder, two counts of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW) and four counts of firing a firearm at a dwelling-house, contrary to s 93GA(1) of the Crimes Act.

2. [2]

   In the course of two mentions of the matter in March 2022 before the arraignment judge, Senior Counsel for the accused foreshadowed that “the vast majority of factual matters … are not in dispute” and that the defence would raise the defences of “not guilty by reason of mental illness, and in the alternative, substantial impairment”. He added that “it is most likely that there will be an application for a judge-alone trial in this matter”. The Crown indicated that it would not agree to a trial by judge alone (“a judge alone trial”). The trial was set down to commence at Newcastle on Monday 26 September 2022.

3. [3]

   The trial was mentioned before me on 22 July 2022. The accused has been represented by Mr Calokerinos of counsel since April 2022, Senior Counsel having withdrawn from the matter. Mr Calokerinos indicated that the defence still intended to rely upon the same defences and that a judge alone trial was still to be sought, although an application had not been filed. The Crown maintained its opposition. The accused was directed to file his application for trial by Judge alone by Friday 29 July 2022 and the hearing of the application was fixed for 3 August 2022, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW).

The basis of the application for a judge alone trial

1. [4]

   The sole basis for the application is the technical nature of the anticipated forensic evidence. Accordingly, it is appropriate to briefly consider the nature of the prosecution case and the likely complexity of the anticipated forensic evidence. For the purposes of the application, the Crown has tendered a draft of the Crown Case Statement and both parties have tendered reports of the forensic experts they have retained.

2. [5]

   The accused was aged 40 at the time of the alleged offences. According to the draft Crown Case Statement, the prosecution alleges that, from about 6pm on 17 March 2020, the accused commenced firing rounds from two firearms from his residential property at individuals and houses in the street in which he resided. Four persons were wounded and one, Byron Tonks, was fatally wounded. Police arrived at the scene at about 6:11pm and, following a siege, the accused surrendered at about 7:15pm and was taken into custody. When arrested, the accused allegedly admitted having consumed “two points of ICE today and then the rest while you guys were there”. He was interviewed by investigators (“the ERISP”). During the ERISP, he allegedly informed police that he had taken approximately 1g of methylamphetamine that day but otherwise had not used it for 50 days prior to the incident.

3. [6]

   The accused has informed the Court that it likely that there will be little or no challenge to the evidence to be called by the prosecution as to what occurred.

4. [7]

   The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), commenced on 27 March 2021, repealing its predecessor, the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the previous Act”). It introduced a partly codified test for the statutory “defence of mental health impairment or cognitive impairment” (“the impairment defence”), which was previously the common law defence of mental illness, which embodied the M’Naghten rules. The relevant parts of the statutory provision for the impairment defence, for the purposes of this application, are as follows:

5. [8]

   The two threshold mental conditions of "mental health impairment" and "cognitive impairment" are the subject of non-exclusive statutory definitions in ss 4 and 5 of the Act:

6. [9]

   The Act amended s 23A of the Crimes Act, which was re-named “substantial impairment because of mental health impairment or cognitive impairment” (“substantial impairment”). Those conditions replace the foundational mental condition previously described in that section as an “abnormality of mind arising from an underlying condition”. The relevant parts of s 23A of the Crimes Act, for the purposes of this application, are as follows:

7. [10]

   The definitions in the Crimes Act of both conditions are identical to those in the Act: see s 4C (defining mental health impairment) and s 23A(8) (defining cognitive impairment).

8. [11]

   The accused provided a history to investigators during the ERISP and to the forensic experts. That history was to the effect that, in 2000, he suffered a traumatic head/brain injury during an assault and he has a history of prohibited and pharmaceutical drug abuse, for which he received treatment in the community over a period of years.

9. [12]

   The defence has retained Dr Richard Furst, forensic psychiatrist. In his report dated 7 July 2021, Dr Furst noted in the history he took from the accused that, following arguments over the previous 12 months with his neighbours, he felt he had “got out of control. I shouldn’t have done it. It wasn’t my intention. … I was trying to defend myself”. The accused told Dr Furst that he was “high on drugs” at the time.

10. [13]

    The psychological impact of the assault in 2000 was suggestive of a Post-Traumatic Stress Disorder (“PTSD”). His chronic use of drugs had caused a substance use disorder.

11. [14]

    Dr Furst diagnosed the accused as having an “Acquired Brain Injury – Persistent Neurocognitive Disorder” as a result of the assault in 2000, although it appears to have been a conditional diagnosis, pending confirmation of the injury and clinical documentation since that time:

12. [15]

    Dr Furst considered that the accused had “a mental health impairment in the form of his PTSD and he probably also has a cognitive impairment by virtue of his acquired head injury,” which I note would be relevant to ss 4(2) and 5(2) of the Act.

13. [16]

    Dr Furst was of the opinion that the accused did not qualify for the impairment defence but that he did have available to him a forensic basis for the substantial impairment defence, disregarding the effects of the methylamphetamine that he ingested that day, since, within the meaning of ss 23A(1) and (3) of the Crimes Act, his:

14. [17]

    Dr Kerri Eagle, forensic psychiatrist, has been retained by the Crown. The material that she was provided with included clinical records for the accused from Justice Health, relevant Local Health Districts and medical centres. In her report, Dr Eagle referred to an entry in the clinical records of the Hunter New England Local Health District regarding medical treatment on 14 June 2000, following an alleged assault.

15. [18]

    The clinical records that were reviewed by Dr Eagle disclosed a lengthy history of treatment for prohibited drug abuse and behavioural issues, including entries within a fortnight of the shootings. In that period, the accused was psychiatrically assessed. Dr Eagle referred to parts of the Central Coast Local Health District records:

16. [19]

    Dr Eagle noted that the accused described signs and symptoms of PTSD for a few years following the alleged assault for which he was prescribed a mood stabiliser. He did not describe “persistent re-experiencing phenomena” after that period. Dr Eagle was of the opinion that there were no current “persistent signs or symptoms” that would justify a diagnosis of PTSD.

17. [20]

    Dr Eagle’s diagnoses are an “antisocial personality disorder” and a “severe substance use disorder” (on opioid maintenance treatment). She concluded that, at the time of the alleged offences, the accused was experiencing methylamphetamine intoxication. Dr Eagle was of the opinion that the symptoms that the accused described to Dr Edwards on 4 March 2020 did not appear to be consistent with persecutory delusions and were more likely reflective of antisocial attitudes and his general perception of the world.

18. [21]

    Dr Eagle said that, although an antisocial personality disorder is not excluded from the definition of a “mental health impairment”, the accused’s antisocial attitudes and behaviours did not impact on the matters set out at s 4(1) of the Act. Therefore, she considered that that mental condition is not available to him as a basis for either the impairment defence or the substantial impairment defence.

19. [22]

    Dr Eagle continued that if, contrary to her opinion, the accused is found to have a mental health impairment, he would nevertheless not qualify for the impairment defence because the forensic evidence would not establish that he came within ss 28(1)(a) or (b) of the Act. He would also not qualify for the partial defence of substantial impairment even if he had a mental health impairment, because:

20. [23]

    Dr Furst provided a further report dated 31 January 2022. In the interim, he received the material that Dr Eagle had for her report. In light of that material, in particular, the psychiatric assessment by Dr Edwards, Dr Furst revised his earlier opinions. He agreed with Dr Eagle that the PTSD had likely dissipated and was now of the opinion that the accused had an organic mood disorder with psychotic features, stating that “the causation is presumed to be in the brain injury that the accused suffered in 2000 and/or other organic causes”.

21. [24]

    Dr Furst said that the organic mood disorder qualified as both a psychotic disorder and an affective disorder, within the meaning of ss 4(2)(b) and (c) of the Act. Dr Furst maintained his opinion that the impairment defence was not available and the substantial impairment defence was, although now on two bases pursuant to s 23A(1)(a) of the Crimes Act. Those bases were the accused’s capacity to judge whether his actions were right or wrong, and his capacity to control himself.

The accused’s submissions

1. [25]

   The basis of the application is that a jury would encounter difficulty understanding the forensic evidence, which is likely to be quite technical. In written submissions, Mr Calokerinos relied upon two judgments of this Court concerning successful applications pursuant to s 132(1) of the Criminal Procedure Act where, under the previous Act, the accused intended to rely upon the defence of not guilty by reason of mental illness and, alternatively, substantial impairment. These were R v Kerollos [2020] NSWSC 1758, decided by R A Hulme J, and R v Hadler [2018] NSWSC 1151, in which Wilson J said, at [39]:

2. [26]

   In oral submissions, Mr Calokerinos referred to the Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (“the DSM-5”), suggesting that a jury would struggle to understand the various diagnoses that will be advanced by Dr Eagle and Dr Furst that are found in the DSM-5, without the “clinical skills and acumen [that] are required”. As to s 23A(1)(b) of the Crimes Act (“the second limb”), counsel submitted that “society norms aren't the most prevalent consideration in this trial”.

The Crown’s submissions

1. [27]

   The Crown submitted that a judge alone trial was inappropriate where the defence was advancing the substantial impairment defence, since the second limb requires the application of community standards, which is appropriately done by a jury.

2. [28]

   The Crown submitted that this is not a trial in which the expert evidence to be given by the two forensic psychiatrists will be beyond the comprehension of a jury; it is evidence of a type that is regularly adduced in trials before juries.

Consideration

1. [29]

   Section 132 of the Criminal Procedure Act sets out the circumstances in which an application for a judge alone trial may be made and the relevant test:

2. [30]

   An affidavit by the accused’s solicitor, Ahmed Dib, was read on the application. Mr Dib related certain advice his office had provided to the accused as to the issue of a judge alone trial and conversations in which he asked the accused to explain his understanding of the differences between a judge alone trial and jury trial, and why he preferred a judge alone trial. Accordingly, pursuant to s 132(6), I am satisfied that the accused has sought and received advice in relation to the effect of a trial by judge order.

3. [31]

   A trial by judge order is only to be made if the Court considers that it is in the interests of justice to do so: s 132(4) of the Criminal Procedure Act. The terms of s 132(5) qualify that test in a way that is relevant to s 23A(1)(b) of the Crimes Act. In Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229, the Court of Criminal Appeal (Johnson J, McClellan CJ at CL and Fullerton J agreeing) observed that the terms of s 23A(1)(b) of the Crimes Act “involv[es] a value judgment by the jury representing the community”.

4. [32]

   Although the two cases relied upon by the accused were instances of a judge alone trial being granted where the accused was advancing essentially the same defences as in this case, in both cases there were exceptional circumstances, in the absence of which the application would likely not have been granted. Kerollos was a case determined at a time when the Covid-19 pandemic was wreaking havoc with juries. R A Hulme J, at [54], explained that he granted the application in order that the trial would proceed as soon as possible for the sake of the accused and the deceased’s family, thus avoiding further adjournments due to the impact of the pandemic on the criminal justice system.

5. [33]

   In Hadler, Wilson J found, at [73]-[77], that a judge alone trial was in the interests of justice on the basis of expert evidence that the accused’s mental health was fragile and there was a real risk that the stress of a jury trial would cause him to become unfit to be tried, thus aborting the trial, in which case it might not recommence for a prolonged period.

6. [34]

   In this case, there are no exceptional circumstances at play. Presently, the Covid-19 pandemic is not disrupting the conduct of jury trials to the extent that it did over the last two years. In my view, the second limb of the substantial impairment defence is a matter that should, where possible, be left to a jury as the finder of fact best equipped to make that value judgment. As to the inevitable complexity of forensic psychiatric evidence, Dr Furst and Dr Eagle are experienced expert witnesses in jury trials who are quite capable of distilling complex forensic concepts into language and notions that can be understood by members of the community without a medical background.

7. [35]

   Accordingly, I dismiss the accused’s application for a trial by judge alone order.