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Supreme Court 27 June 2016

R v Hart (No 2)

[2016] NSWSC 956

Homicide
CRIMINAL LAW EXPERT EVIDENCE

Citation: R v Hart (No 2) [2016] NSWSC 956
Court: Supreme Court of New South Wales
Date: 27 June 2016
Judge(s): Campbell J

Background

The accused was charged with murder following the shooting death of his friend on 29 October 2013. He had been held on remand for over two and a half years by the time the trial was due to commence. When arraigned before a jury panel on 20 June 2016, he entered a plea of not guilty to murder but guilty to manslaughter, which the Crown declined to accept.

A jury was empanelled but not formally charged with the case. This was because new psychiatric evidence had only just emerged: a report from Dr Anna Farrar, served on the Crown on 17 June 2016, diagnosing the accused with substance abuse psychosis in the period surrounding the offence.

On the voir dire (a preliminary hearing to assess admissibility of evidence), Dr Farrar's opinion extended beyond the question of specific intent for murder. It also raised the partial defence of substantial impairment, an issue the defence had not previously notified. Campbell J granted the accused leave to raise that defence out of time under s 151 of the Criminal Procedure Act 1986 (NSW), on the understanding that the Crown could quickly obtain its own psychiatric opinion in response.

  • Whether the accused should be granted leave to raise the partial defence of substantial impairment out of the statutory notice period under s 151 of the Criminal Procedure Act 1986 (NSW)
  • Whether the Crown had been placed in a position of forensic prejudice by the late service of the psychiatric evidence
  • Whether the trial should be vacated entirely or adjourned to a nearer date to allow the Crown to obtain its own expert opinion

Decision

Campbell J accepted that requiring the Crown to open its case without any psychiatric advice to meet the newly raised substantial impairment defence would be wholly unreasonable. The Crown had made genuine attempts to engage Dr Westmore, a court-familiar expert, but had been unable to obtain his opinion or even make contact with him despite repeated efforts. The judge declined to criticise Dr Westmore, noting there was likely a proper explanation for the breakdown in communication.

Balancing the Crown's forensic disadvantage against the accused's prolonged remand, the interests of the deceased's family, and the community's interest in the efficient administration of justice, Campbell J concluded that a short adjournment was preferable to a full vacation of the trial dates. A new jury panel happened to be available in Albury on 4 July 2016, one week away. The judge determined this provided a fair and practical opportunity for the Crown to secure either Dr Westmore's opinion or that of another expert.

The empanelled jury was accordingly discharged, and the trial was relisted to commence on 4 July 2016. The judge acknowledged this adjournment might create some difficulty with completing the case within the original time estimate, but treated that concern as secondary given the importance of the issues to all parties involved.

Orders Made

  • The empanelled jury was excused.
  • The trial was adjourned to commence at 10:00 am on 4 July 2016.

Key Takeaways

  • Late service of expert psychiatric evidence raising a new partial defence created significant forensic prejudice for the Crown, justifying a further adjournment of the trial.
  • Under s 151 of the Criminal Procedure Act 1986 (NSW), a court may grant leave to raise the partial defence of substantial impairment outside the required notice period where circumstances warrant.
  • Where an accused has been held on remand for an extended period, that factor weighs against a full vacation of trial dates and in favour of the shortest workable adjournment.
  • The Supreme Court discharged the empanelled jury and relisted the trial within one week, treating the interests of the accused, the deceased's family, and the broader community as all pointing toward a prompt rather than indefinitely delayed trial.
  • A genuine but unsuccessful attempt by the Crown to obtain expert opinion in a short timeframe was treated as a relevant factor in fashioning a fair procedural response, even where that attempt ultimately failed.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 151 (notice requirements for mental illness defences)

Cases:
- No cases were cited in this judgment.