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Supreme Court 29 April 2014

R v Trawin-Hadfield

[2014] NSWSC 591

Homicide
CRIMINAL LAW APPLICATION FOR JUDGE ALONE TRIAL COMMUNITY STANDARDS

Citation: R v Trawin-Hadfield [2014] NSWSC 591
Court: Supreme Court of New South Wales
Date: 29 April 2014
Judge: Price J

Background

The accused faced a charge of manslaughter arising from the death of a man who was shot on the front step of his home at Mount Pritchard in October 2010. The Crown alleged that the deceased died when a shotgun discharged after being used as a bludgeon during a group assault. The Crown's case rested on joint criminal enterprise manslaughter by an unlawful and dangerous act, with the accused alleged to have been one of five men who participated in the attack.

The accused denied being a party to any joint criminal enterprise. His defence included a claim that he intervened only to free a companion from a headlock applied by the deceased, and that his actions amounted to lawful defence of another person. He also relied on expert evidence from a forensic psychologist and a psychiatrist, who opined that the accused suffered from permanent cognitive impairment, rendering him unable to foresee that his conduct would expose the deceased to an appreciable risk of serious injury.

The accused applied, late, for a trial by judge alone under s 132 of the Criminal Procedure Act 1986. The Crown did not oppose the grant of leave to make the application out of time, but opposed the application itself.

  • Whether leave should be granted to make the judge-alone trial application out of time under s 132A(1) of the Criminal Procedure Act 1986
  • Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 to order a trial by judge alone, given the Crown's opposition
  • Whether the trial would involve factual issues requiring the application of objective community standards, which may favour trial by jury under s 132(5)
  • Whether the complexity of directions relating to self-induced intoxication and permanent cognitive impairment justified removing the matter from a jury

Decision

Price J granted leave for the application to be made out of time but ultimately dismissed the application. His Honour identified the overriding principle as whether it was in the interests of justice to grant a judge-alone trial, noting there is no onus on the accused beyond an evidentiary one, as confirmed in The Queen v Belghar [2012] NSWCCA 86 and The Queen v Dean [2013] NSWSC 661.

The principal argument advanced for the accused was that juries would struggle to apply directions requiring them to disregard evidence of self-induced intoxication for some purposes under s 428D of the Crimes Act 1900, while simultaneously considering evidence of permanent cognitive impairment that was at least partly caused by long-term substance abuse. His Honour acknowledged the apparent tension in those directions but was not persuaded that a jury would have difficulty following them. Juries have long dealt with issues arising from self-induced intoxication, and the directions, though requiring care, were not regarded as so complex as to take the matter outside the ordinary competence of a jury.

His Honour also considered the accused's submission that his cognitive difficulties would make it hard for a jury to understand his evidence. Price J had personally observed the accused giving evidence in earlier proceedings and found no difficulty in understanding him, forming the view that a jury would be similarly able to follow his testimony.

The court found no basis to conclude that the trial would demand the application of objective community standards in a way that would favour a jury, nor that the combination of legal issues was so exceptional as to make a judge-alone trial necessary in the interests of justice.

Orders Made

  • Leave granted to make the application out of time.
  • The notice of motion dismissed.

Key Takeaways

  • The overriding test under s 132(4) of the Criminal Procedure Act 1986 is whether a judge-alone trial is in the interests of justice; the accused bears only an evidentiary burden, not a legal onus, to justify such an order.
  • Complexity of jury directions, even where those directions require intoxication evidence to be applied for some purposes and disregarded for others, does not automatically favour a judge-alone trial. The Supreme Court found that juries have long been capable of applying such directions.
  • Under s 132(5), a court may refuse a judge-alone order where the trial will involve factual issues requiring the application of objective community standards, including reasonableness or dangerousness.
  • Where the prosecutor opposes a judge-alone application, the court retains a discretion under s 132(4) and is not bound to make the order simply because the legal issues are numerous or the directions are layered.
  • A judge's direct observation of an accused's ability to give evidence in earlier proceedings can inform the court's assessment of whether a jury will be able to understand that evidence at trial.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Crimes Act 1900 (NSW), s 428D

Cases:
- The Queen v Belghar [2012] NSWCCA 86
- The Queen v Dean [2013] NSWSC 661
- TWL v The Queen [2012] NSWCCA 57