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8
Supreme Court 22 May 2013

R v Dean

[2013] NSWSC 661

Homicide
CRIMINAL LAW APPLICATION FOR TRIAL BY JUDGE ALONE INTERESTS OF JUSTICE

Citation: R v Dean [2013] NSWSC 661
Court: Supreme Court of New South Wales
Date: 22 May 2013
Judge: Latham J

Background

The accused, a registered nurse, faced 11 counts of murder and 8 counts of recklessly inflicting grievous bodily harm arising from fires he set at a nursing home in Quakers Hill on 18 November 2011. The fires killed 11 residents and injured others. Much of the Crown's factual case was not in dispute, with the accused prepared to make formal admissions covering the circumstances of the fires, the layout of the nursing home, and his conduct during the emergency.

The central contested issue at trial was the accused's mental state at the time of the offences. The accused had stolen significant quantities of Schedule 8 drugs from the nursing home in the preceding days, and expert evidence was anticipated regarding the effects of those drugs on his cognition and intention. The trial was scheduled to commence on 27 May 2013.

The accused applied, by notice of motion, for an order that the trial proceed before a judge alone rather than a jury. The Crown opposed the application on its merits, though it did not oppose the grant of leave to make the application out of time.

  • Whether the interests of justice required a judge-alone trial under s 132 of the Criminal Procedure Act 1986
  • Whether the anticipated expert evidence regarding drug ingestion was so technically complex that a jury would be unable to comprehend or properly engage with it
  • Whether the nature of a multiple murder trial created a level of natural prejudice that a jury could not overcome, even with judicial directions
  • Whether the combination of technical expert evidence and natural prejudice from the charges warranted departure from trial by jury

Decision

Latham J refused the application. Her Honour considered the two principal grounds advanced by the accused: the technical complexity of the expert evidence, and the natural prejudice arising from the scale and circumstances of the charges.

On complexity, her Honour found that the expert evidence concerning drug ingestion was not beyond a jury's appreciation. The core factual dispute, namely the frequency and dosage of drugs allegedly consumed by the accused, would ultimately turn on the credibility and reliability of the accused as a witness. That is precisely the kind of assessment juries are well suited to make, and it did not require specialised expertise to evaluate.

On natural prejudice, Latham J acknowledged that trials involving multiple deaths inevitably carry an emotional charge. However, her Honour noted that trials for multiple murders are not unprecedented in the jury context, citing the Milat trial as one example where a jury was entrusted with cases of comparable or greater gravity. Robust judicial directions, including repeated instructions to prospective jurors to disqualify themselves if they cannot set aside prejudice, are capable of adequately managing that risk.

Her Honour also observed that the deaths in this case were not the product of a direct, deliberate assault on each individual victim. The degree of opprobrium a jury might feel toward an accused whose actions indirectly caused deaths is, she noted, naturally less than in cases of direct personal violence. Taking all factors together, jury participation remained in the interests of justice, and the application failed on both grounds.

Orders Made

  • Leave granted to make the application out of time
  • Notice of motion dismissed

Key Takeaways

  • Under s 132 of the Criminal Procedure Act 1986, the interests of justice must affirmatively favour a judge-alone trial before such an order will be made; the mere presence of technical expert evidence or serious charges is insufficient.
  • Where the central factual dispute concerns a defendant's credibility as a witness, particularly regarding self-reported drug consumption, that issue falls squarely within the ordinary province of a jury and does not support departure from the usual mode of trial.
  • The Supreme Court confirmed that robust jury directions, including invitations at the selection stage for biased jurors to disqualify themselves, are capable of materially reducing the prejudice arising from the gravity or notoriety of charges.
  • Precedent from notorious multiple-murder trials conducted before juries weighs against the proposition that the mere number of counts or the seriousness of charges renders jury participation contrary to the interests of justice.
  • A distinction exists between deaths caused by direct personal violence and those indirectly caused by an accused's actions; the latter may generate less juror opprobrium, reducing the force of a natural-prejudice argument.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone)
- Evidence Act 1995 (NSW), s 184 (formal admissions)

Cases:
- AK v The State of Western Australia [2008] HCA 8
- Kingswell v The Queen [1985] HCA 72; 159 CLR 264
- R v Belghar [2012] NSWCCA 86
- R v King [2013] NSWSC 448
- R v Milat NSWCCA, 26 February 1998