R v Fuller (No 1)

1. [1]

   HIS HONOUR: The accused was first arraigned in the Supreme Court on 9 December 2022 on two counts; first, that on 28 July 2021, at South West Rocks and elsewhere in the State of New South Wales, he did intimidate Gregory Hunt with the intention of causing the said Gregory Hunt to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and second, that on the same date, at South West Rocks he murdered Mark Tozer, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

2. [2]

   The accused was arrested on 28 July 2021 and has been on remand since then. The matter was initially listed for trial, with a four-week estimate, to commence on 20 November 2023. That date was vacated when it became apparent that the trial estimate was likely to be exceeded, due to a large volume of additional material that was served by the Crown.

3. [3]

   On 25 October 2023, Wilson J fixed the trial to commence in this Court on 23 September 2024 at Newcastle, with an estimated length of 10 weeks. On 22 July 2024, the parties were advised that I was to be the trial judge. I advised the parties that there would be a trial readiness hearing on 21 August 2024. It was apparent that, essentially, the accused would not be contesting the physical acts that caused the death of Mr Tozer; and the issues would be whether the partial defences of excessive self-defence, and/or substantial impairment (s 23A of the Crimes Act) were made out. At the trial readiness hearing, neither party raised the prospect of an application for a trial by judge alone.

4. [4]

   On 4 September 2024, the defence filed an application for the trial to proceed by way of judge alone, pursuant to ss 132(1) and 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act). The parties were notified that I would hear the application on 11 September 2024.

5. [5]

   On that date, following a short hearing, I made the orders sought. The application was not opposed by the Crown. These are my reasons for so doing.

6. [6]

   Sections 132 and 132A of the Act, insofar as they are relevant to this application, are as follows:

7. [7]

   The basis of the application was, essentially, issues that counsel for the defence (Mr King) and his instructing solicitor (Ms Knowles) had encountered in the process of obtaining instructions from, and giving advice to, the accused, following the readiness hearing on 21 August 2024.

8. [8]

   An affidavit by Ms Knowles was read at the hearing of the application without objection, which provided the background for the application. It stated that the accused had been examined by Dr Gerald Chew, forensic psychiatrist who was retained by the defence, on 2 June 2022, and had been diagnosed, by Dr Chew, of having a borderline personality disorder and a substance use disorder. The Crown retained Dr Kerri Eagle to examine the accused, which she did on 6 January 2023, concluding that the accused “most likely had a personality disorder with borderline and antisocial traits”, which was:

9. [9]

   In a further report dated 27 September 2023, Dr Chew said:

10. [10]

    Ms Knowles stated that she arranged a series of rolling AVL conferences to occur from the week commencing 19 August 2024. She said:

11. [11]

    Ms Knowles noted that communications ensued with the Crown, culminating in advice being received from the Crown on 4 September 2024 that an application for a judge alone trial would not be opposed. At the hearing of the application, the Crown was content to not tender any evidence on the issue.

12. [12]

    The immediate issue for determination was whether it was appropriate to grant leave to the accused to make the application, as required by s 132A(1) of the Act. If leave was to be granted, the Court was obliged to make the trial by judge order sought in view of s 132(2) of the Act.

13. [13]

    A relevant consideration on the issue of leave, in my view, is whether the grounds for the application justified granting the orders sought in the interests of justice, in a situation which was not unlike that which was before this Court in R v Hadler [2018] NSWSC 1151. In that case, Wilson J heard an application by the accused for a judge alone trial that was brought within time, but which was opposed by the Crown. Her Honour determined that it was, in the terms of s 132(4) of the Act, “in the interests of justice” to proceed by way of trial by judge alone because of “the issue of the risk of the accused descending into florid illness during the course of a jury trial, and a consequential state of unfitness”.

14. [14]

    A further relevant consideration with respect to the issue of leave is the purpose of s 132A, which is partly to avoid parties engaging in making an application with foreknowledge of the identity of the trial judge. However, had the concerns as to the accused’s behaviour arisen before the 28-day cut-off period, even though the parties knew then the identity of the trial judge, the Court would have been obliged to make the order, given that the application was consented to by the Crown.

15. [15]

    A matter of concern was the fact that the accused proposed to rely upon the partial defence of substantial impairment, which involves an application of community standards pursuant to s 23A(1)(b) of the Crimes Act. This is a matter that usually mitigates against a trial by jury, since a jury is better placed to make the determination required by to s 23A(1)(b) (see s 132(5) of the Act). In Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229, the Court of Criminal Appeal per Johnson J (McClellan CJ at CL and Fullerton J agreeing) observed at [33] that the terms of s 23A(1)(b) of the Crimes Act “involv[es] a value judgment by the jury representing the community”. However, I note that, in spite of the partial defence of substantial impairment being an issue in the trial, had the application been made in time, the Court would have had no power to oppose it, pursuant to s 132(2) of the Act.

16. [16]

    Accordingly, I was satisfied that it was appropriate to grant leave to the accused to make the application, which had the effect that I was obliged to make the order sought, pursuant to s 132(2) of the Act.

17. [17]

    Following my determination, the defence indicated that it would obtain a fitness report to ensure that, even on the basis of a trial by judge alone, there was no issue, so far as the defence was concerned, of the accused’s fitness. A report by Dr Chew dated 18 September 2024 was handed up on the first day of the trial (23 September 2024). Dr Chew was of the opinion that the accused was unfit to be tried if the trial proceeded by jury, but fit if it was by judge alone.

Orders

1. [18]

   I made the following orders on 11 September 2024: