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Supreme Court 15 December 2014

R v Colin Maxwell Farrow

[2014] NSWSC 1781

Homicide
CRIMINAL LAW ISSUE OF MENTAL ILLNESS ONLY CONFLICT IN EXPERT EVIDENCE INDISPOSITION OF ONE OF EXPERTS

Citation: R v Colin Maxwell Farrow [2014] NSWSC 1781
Court: Supreme Court of New South Wales
Date: 15 December 2014
Judge(s): Rothman J

Background

The accused faced a charge of murder arising from events at Wollongong on 11 April 2013. The Crown alleged that the accused had killed the victim, whose body was found bound, gagged, and wrapped in bedding in the boot of a motor vehicle. Circumstantial evidence included the accused's mobile phone found in the vehicle, items linking him to materials used on the deceased, and a handwritten note found in his room listing potential targets and equipment, concluding with an instruction to "Be THOROUGH, Be METHODICAL and most of all, BE CAREFUL."

The accused applied by notice of motion for the trial to be conducted by a judge alone rather than by jury, with the trial listed to commence on 2 February 2015. The Crown opposed the application.

The sole issue for determination at trial was whether the accused had available to him a defence of mental illness. Both parties relied on competing psychiatric expert evidence: four reports from Dr Westmore for the defence and two reports from Professor Greenberg for the Crown. Importantly, Dr Westmore was subject to significant health-related availability issues.

  • Whether the court should make a trial-by-judge-alone order under s 132(4) of the Criminal Procedure Act 1986 (NSW) where the prosecutor did not consent, applying the "interests of justice" test.
  • Whether the narrow nature of the issue at trial (mental illness defence only, turning on competing expert evidence) supported a judge-alone trial.
  • Whether the health-related unavailability of one expert witness was a relevant factor in the interests of justice assessment.

Decision

Rothman J acknowledged a personal preference for jury trials in criminal proceedings, but ultimately granted the application. His Honour found that the combination of circumstances in this case satisfied the "interests of justice" threshold under s 132(4).

The sole contested issue was the mental illness defence, which would turn on which of the two competing psychiatric experts was preferred. Rothman J observed that where guilt or innocence depends on evaluating expert psychiatric evidence, including assessments of the genuineness of a defendant's symptoms, a jury verdict on that question would not itself explain the basis for any finding of guilt. That absence of reasoning, his Honour noted, could in a case of this kind render the process unfair to the accused.

The health-related availability problems affecting Dr Westmore added a distinct concern. Even with the Crown's commended willingness to accommodate his availability, Rothman J identified a real risk that a jury might assess the experts not on the substance of their evidence but on the relative ease or fluency of their delivery, which would be an irrelevant consideration. No single factor was decisive in isolation, but together the narrow scope of the trial and the expert's indisposition satisfied the interests of justice test.

His Honour noted that while some aspects of the factual issues might involve the application of objective community standards (a factor the court may consider under s 132(5)), that consideration did not lead to a refusal of the order in these circumstances.

Orders Made

  • The trial be heard and determined by judge alone pursuant to s 132 of the Criminal Procedure Act 1986.
  • The Crown and defence counsel confer on the most convenient course for adducing evidence of facts not to be controverted.
  • The trial to commence at 10am on 3 February 2015.
  • The parties have liberty to apply on 3 days' notice.

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986, where the prosecutor does not consent, the court retains a discretion to order a judge-alone trial if it is satisfied that doing so is in the interests of justice.
  • The "interests of justice" test is not satisfied by any single factor in isolation; Rothman J applied a cumulative assessment of the narrow scope of the trial issue and the health-related unavailability of a key expert witness.
  • Where a trial turns entirely on which of two competing psychiatric experts is preferred, a jury verdict may be unsatisfactory because it will not disclose the reasoning behind any finding of guilt, a consideration that can weigh in favour of a judge-alone trial.
  • A real risk that a jury may evaluate expert evidence on the basis of a witness's manner or fluency of delivery, rather than the substance of their opinion, can be relevant to the interests of justice where one expert faces significant health-related difficulties in giving evidence.
  • Section 132(5), which permits refusal of a judge-alone order where the trial will require the application of objective community standards, does not operate as an automatic bar; the court retains a discretion to make the order notwithstanding that some such issues arise.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 132

Cases:
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Dean [2013] NSWSC 661
- R v Gittany [2013] NSWSC 1503
- R v King [2013] NSWSC 448; (2013) 228 A Crim R 406
- R v McKnight [2014] NSWSC 398
- R v Stanley [2013] NSWCCA 124
- R v Villalon [2013] NSWSC 1516