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Supreme Court 6 August 2013

R v Robert Bretherton

[2013] NSWSC 1036

Homicide
CRIMINAL LAW CHARGE OF MURDER PLEA OF GUILTY TO MANSLAUGHTER

Citation: R v Robert Bretherton [2013] NSWSC 1036
Court: Supreme Court of New South Wales
Date: 6 August 2013
Judge(s): Harrison J

Background

The accused was charged with the murder of his former partner at Bellbird, New South Wales on 16 November 2011. The couple had been in an on-and-off relationship for approximately ten years and, at the time of the offence, were attempting a reconciliation while also negotiating a property settlement. The accused called triple zero and admitted to police at the scene that he had stabbed the deceased multiple times. The deceased suffered twelve stab wounds.

The accused pleaded guilty to manslaughter but not guilty to murder. The Crown did not accept the manslaughter plea in satisfaction of the indictment, meaning a murder trial was required. The sole contested issue at trial was whether the accused was entitled to have his liability reduced from murder to manslaughter on the ground of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900.

With trial listed for 26 August 2013 in Newcastle, the accused applied on 2 August 2013 under s 132 of the Criminal Procedure Act 1986 for an order that the trial proceed before a judge alone. The Crown opposed the application.

  • Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 to make a trial by judge order where the Crown opposed the application.
  • Whether the substantial impairment defence under s 23A of the Crimes Act 1900 involved a factual issue requiring the application of objective community standards within the meaning of s 132(5).
  • Whether the technical or medical nature of the expert evidence relevant to the defence favoured a judge-alone trial.

Decision

Harrison J identified s 132(4) as the central provision, noting that where the prosecutor does not agree to a judge-alone order, the court may nonetheless make one if satisfied it is in the interests of justice. The court drew on the Court of Criminal Appeal's analysis in R v Belghar, which confirmed that no presumption in favour of jury trial operates under the provision, but that the accused carries an evidentiary onus and the interests of justice test remains a substantive one.

The court distinguished between the two elements of the substantial impairment defence under s 23A. The first element, whether the accused had an abnormality of mind, was characterised as a factual question well-suited to expert medical evidence, of a kind routinely placed before juries. The second element, whether the impairment was so substantial as to warrant reducing liability from murder to manslaughter, was a different matter entirely.

Harrison J found that the second element plainly invokes an objective community standard. The word "warrant" in s 23A(2) calls for an evaluative judgment about whether the degree of impairment justifies the reduction in liability, and that judgment is not to be foreclosed by expert opinion alone. This is precisely the type of normative question that s 132(5) identifies as a basis for refusing a judge-alone order.

The court rejected the argument that the complexity or technical character of the medical evidence justified removing the case from a jury. The prospect of a misunderstanding of evidence, while forensically attractive as an argument, did not outweigh the importance of leaving the community-standards question in the hands of a jury. The application was refused.

Orders Made

• The trial will not proceed before a judge alone
• A trial by judge order will not be made
• The s 23A(1)(b) issue will be left to the jury

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986, a court may order a judge-alone trial over prosecution opposition only where satisfied it is in the interests of justice to do so, and no statutory presumption in favour of such an order exists.
  • The substantial impairment defence under s 23A of the Crimes Act 1900 contains two distinct elements: the existence of an abnormality of mind (a factual question for expert evidence) and whether the impairment was substantial enough to "warrant" reduction of liability (an evaluative question requiring application of objective community standards).
  • Where a defence requires a jury to apply an objective community standard, s 132(5) provides a basis to refuse a judge-alone order, and Harrison J held that the "warrant" element of s 23A squarely falls within that category.
  • The technical or medical complexity of trial evidence does not, of itself, make it in the interests of justice to remove a trial from a jury, particularly where a community-standards question remains live.
  • R v Belghar [2012] NSWCCA 86 was confirmed as the leading authority on the operation of s 132 in contested applications, with the Court of Criminal Appeal's analysis of the "interests of justice" test applied and followed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Procedure Act 1986 (NSW), s 131, s 132

Cases:
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387
- R v Majdalawi [2000] NSWCCA 240; (2000) 113 A Crim R 241
- R v Trotter (1993) NSWLR 428
- Arthurs v State of Western Australia [2007] WASC 182