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Supreme Court 17 September 2012

R v Kaewklom (No. 1)

[2012] NSWSC 1103

Assault & violenceHomicide
CRIMINAL LAW PRETRIAL RULINGS CHARGE OF MURDER TENDENCY EVIDENCE EVIDENCE ADMITTED

Citation: R v Kaewklom (No. 1) [2012] NSWSC 1103
Court: Supreme Court of New South Wales
Date: 17 September 2012
Judge: Johnson J

Background

The accused, an 18-year-old man, was charged with the murder of a 69-year-old fellow prisoner in a holding cell at Liverpool Local Court on 15 February 2011. Closed-circuit television footage captured the accused throwing the deceased to the ground, then repeatedly kicking and stomping on his head and upper chest. The deceased died on 25 February 2011 following surgery.

The central complication before trial was the late emergence of substantial mental impairment as a partial defence. The accused's solicitor had received two earlier psychiatric reports that did not support the partial defence, but a third report from the same forensic psychiatrist, obtained on 10 August 2012, concluded that the partial defence was available. This was well after the statutory 35-day notice deadline of 27 July 2012.

The Crown had no prior indication that this partial defence would be raised, and urgently retained its own forensic psychiatrist. A range of pre-trial evidentiary rulings were then required before the jury could be empanelled.

  • Whether leave should be granted under s.151 of the Criminal Procedure Act 1986 for the accused to rely on the partial defence of substantial mental impairment, despite the late notice
  • Whether the s.138(d) Criminal Procedure Act 1986 obligation to state an intention to give notice under s.151 was engaged and complied with
  • Whether an electronically recorded interview (ERISP) from 14 February 2011, concerning an earlier assault by the accused on a former girlfriend, was admissible
  • Whether a triple-zero emergency call from 10 February 2011 relating to that same earlier assault was admissible
  • Whether tendency evidence concerning the earlier assault (which also involved kicking and stomping) should be admitted, or excluded under ss.135, 137, or 138 of the Evidence Act 1995

Decision

Leave to rely on substantial mental impairment: Johnson J granted leave under s.151 Criminal Procedure Act 1986 for the accused to raise substantial mental impairment, noting that the Crown ultimately did not oppose the application. Crucially, the accused could not have given earlier notice because no medical evidence supporting the partial defence existed until the third psychiatric report on 10 August 2012. The judge drew an analogy with the approach taken for late alibi notices under s.150, where courts have been directed to be slow to refuse leave unless prejudice exists that cannot be managed without significant disruption to the trial.

Admissibility of the ERISP and triple-zero call: Both pieces of evidence concerned an earlier incident in which the accused had allegedly assaulted his former girlfriend. The court found each item of evidence relevant to the partial defence of substantial mental impairment on three connected grounds: each was relevant to the accused's state of mind at a time close to the alleged murder; and each was capable of forming part of a connected series of events leading to the killing. The accused failed to establish any impropriety or illegality in the recording of the ERISP sufficient to engage the exclusionary discretion under s.138 Evidence Act 1995. The court also declined to exclude either item under ss.135 or 137 of that Act.

Tendency evidence: The court admitted the tendency evidence identified in the Crown's tendency notice of 15 August 2012. The nature of the earlier assault, which involved the same method of kicking and stomping, bore on the issues raised by the partial defence of substantial mental impairment and was not outweighed by unfair prejudice.

Postscript: After the jury was empanelled and the trial commenced, the accused ultimately pleaded guilty to murder before the jury. The jury was discharged and the Supreme Court formally convicted the accused of murder pursuant to s.157 Criminal Procedure Act 1986. A sentence hearing was fixed for 17 September 2012.

Orders Made

  • Leave granted to the accused to rely on the partial defence of substantial mental impairment at trial
  • The ERISP of 14 February 2011 admitted into evidence
  • The triple-zero call of 10 February 2011 admitted into evidence
  • Tendency evidence as identified in the tendency notice of 15 August 2012 admitted into evidence
  • Upon the accused's mid-trial guilty plea to murder, the jury was discharged and the accused was convicted of murder by the Supreme Court

Key Takeaways

  • Where an accused cannot have given timely notice of an intention to rely on substantial mental impairment because the supporting medical evidence did not yet exist, that circumstance is a compelling basis for granting leave under s.151 Criminal Procedure Act 1986, provided any prejudice to the Crown can be managed.
  • A similarly flexible approach applies to late substantial mental impairment notices as courts have adopted for late alibi notices under s.150, where refusal of leave is appropriate only if unmanageable prejudice would result.
  • Under s.138(d) Criminal Procedure Act 1986, an accused is required to state in the defence response whether a s.151 notice is intended, meaning the statutory framework contemplates early disclosure of any intention to raise substantial mental impairment, ahead of the formal notice deadline itself.
  • Evidence of an earlier assault by an accused can be admissible on multiple bases simultaneously: as relevant to the accused's state of mind, as part of a connected series of events, and as tendency evidence, provided it clears the thresholds set by the Evidence Act 1995.
  • Excluding evidence under ss.135, 137, or 138 Evidence Act 1995 requires the party seeking exclusion to establish the relevant unfair prejudice or, in the case of s.138, some impropriety or illegality in the obtaining of the evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss.138(d), 150, 151, 157; Clause 20, Criminal Procedure Regulation 2010
- Evidence Act 1995 (NSW), ss.135, 137, 138
- Mental Health (Forensic Provisions) Act 1990 (NSW), s.8
- Crimes Act 1900 (NSW)

Cases:
- R v Dunn [2012] NSWSC 946
- Skondin v R [2005] NSWCCA 417
- R v Fraser [2003] NSWSC 965
- R v Trotter (1993) 35 NSWLR 428
- R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306
- Cittadini v R [2008] NSWCCA 256; 189 A Crim R 492
- R v PWD [2010] NSWCCA 209
- DAO v R [2011] NSWCCA 63
- O'Leary v The King [1946] HCA 44; 73 CLR 566
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- R v Petroulias (No. 6) [2006] NSWSC 1422; 182 A Crim R 1