Citation: R v McKnight [2014] NSWSC 398
Court: Supreme Court of New South Wales
Date: 9 April 2014
Judge: Campbell J
Background
The accused faced trial for the murder of a man who was sitting on a footpath in the Sydney CBD in the early hours of 25 March 2012. CCTV footage captured the accused delivering at least three full-force kicks to the deceased's head. The deceased died several hours later from a subdural haemorrhage.
The accused indicated he would plead not guilty to murder but guilty to manslaughter. His defence contested the Crown's assertion that he intended to kill or cause really serious personal injury. In the alternative, the accused intended to rely on the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), attributable to a diagnosed chronic schizophrenia condition.
Before the trial commenced, the accused applied out of time for an order that he be tried by judge alone rather than by jury. The Crown consented to the late application but opposed the making of the order itself.
Legal Issues
- Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) to make a trial by judge alone application out of time
- Whether, under s 132(4) of the Criminal Procedure Act, it was in the interests of justice to order a trial by judge alone without the prosecutor's consent
- Whether widespread media coverage of alcohol-fuelled street violence created sufficient prejudice to justify departing from the default of jury trial
- Whether the partial defence of substantial impairment, involving psychiatric evidence, was better suited to determination by a judge alone
Decision
Campbell J granted leave for the application to be made out of time, with the Crown's consent. However, his Honour refused to make the trial by judge alone order.
On the legal framework, the Court confirmed there is no presumption favouring either mode of trial. The sole presumption is that justice is equally available through both. An applicant bears an evidentiary burden to introduce material engaging the statutory discretion, but the discretion must be exercised against the background that Parliament assumed jury trial would remain the norm for serious indictable offences.
The accused's primary argument was that pervasive media coverage of alcohol-fuelled violence, including "single punch manslaughter" cases, meant a jury could not approach his case without prejudice. Campbell J was not persuaded. Relying on established authority, his Honour observed that the existence of pre-trial publicity does not by itself establish a real risk of an unfair trial. Courts possess well-developed tools to address such prejudice, including directions to the jury. The observation in the Canadian decision of R v Hubbert (1975), that jurors are able to put aside what they have heard and decide cases on the evidence, was noted as remaining apt decades later.
On the substantial impairment issue, the Court rejected the argument that the presence of contested psychiatric evidence inherently favoured a judge alone trial. Both the defence psychiatrist and the Crown psychiatrist largely agreed on diagnosis; the dispute was more one of degree. Campbell J also declined to treat general efficiencies associated with judge alone trials as a relevant consideration, reaffirming that universal characteristics of jury trials cannot be weighed in the balance.
Orders Made
- Leave granted to the accused to make application for a trial by judge alone order
- Application for a trial by judge alone order refused
- The accused directed to file and serve a notice under s 151 of the Criminal Procedure Act 1986 within 14 days
- The Director of Public Prosecutions directed to indicate by notice in writing whether the Crown seeks to call evidence to disprove substantial impairment before or after the accused's evidence, in accordance with s 151(3) of the Criminal Procedure Act 1986
- Publication of the orders and reasons restricted under s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW) until the return of the jury's verdict, with publication to the parties and their legal representatives excepted
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act 1986 (NSW), where the prosecutor does not consent, a court may only order trial by judge alone if it is in the interests of justice to do so; the applicant bears an evidentiary burden to engage that discretion but need not rebut any formal presumption.
- Widespread media coverage of a general category of offending (such as alcohol-fuelled street violence) does not, without more, justify a trial by judge alone order; courts have well-established mechanisms to address prejudice arising from pre-trial publicity.
- The presence of contested psychiatric evidence going to a partial defence does not automatically make judge alone trial the appropriate mode; the nature and degree of the dispute remains relevant to any such assessment.
- Potential time and cost savings from a judge alone trial are an impermissible consideration; universal characteristics of jury trials cannot be weighed in the interests of justice analysis.
- The Supreme Court reaffirmed that the interests of the accused and the interests of justice are not necessarily the same thing, with the community retaining a legitimate interest in jury participation in the administration of serious criminal trials.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 151
- Crimes Act 1900 (NSW), s 23A
- Court Suppression and Non Publication Orders Act 2010 (NSW), s 7
Cases
- R v Belghar [2012] NSWCCA 86
- R v Fardon [2010] QCA 317
- R v Glennon (1992) 173 CLR 592
- R v Hubbert (1975) 29 CCC (2d) 279
- R v King [2013] NSWSC 448
- R v Stanley [2013] NSWCCA 124
- Swain v Waverley Municipal Council (2005) 220 CLR 517
- TVM v State of Western Australia [2007] WASC 299
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387