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8
Supreme Court 26 July 2018

R v Hadler

[2018] NSWSC 1151

Homicide
CRIMINAL LAW ACCUSED CHARGED WITH MURDER APPLICATION FOR TRIAL BY JUDGE ALONE APPLICATION OPPOSED BY CROWN QUESTIONS OF EFFICIENCY OF TRIAL DRUG USE BY ACCUSED

Citation: R v Hadler [2018] NSWSC 1151
Court: Supreme Court of New South Wales
Date: 26 July 2018
Judge: Wilson J

Background

The accused was charged with the murder of a fellow tenant at residential premises in Bass Hill on 23 September 2016. It was alleged that he stabbed the deceased to death in the early hours of that morning, concealed his involvement, and later admitted the killing to friends before surrendering to police. In a recorded police interview, he acknowledged the stabbing but described a poor memory of events, referencing insomnia and his own "insanity."

The accused had a documented psychiatric history dating to at least 2009, including a diagnosis of schizophrenia, multiple inpatient admissions, and a period of non-compliance with antipsychotic medication combined with illicit drug use in the lead-up to the offence. Three forensic psychiatrists, instructed by both the defence and the Crown, each concluded that the accused may have available a defence of mental illness under section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

The accused applied for his trial to be conducted by a judge sitting alone under section 132 of the Criminal Procedure Act 1986 (NSW). The Crown opposed the application.

  • Whether the interests of justice supported an order for trial by judge alone under section 132 of the Criminal Procedure Act 1986 (NSW)
  • Whether a judge is better placed than a jury to assess complex forensic psychiatric evidence when the sole issue is the availability of a mental illness defence
  • Whether the stress of a jury trial created a real risk that the accused would become unfit to be tried during the proceedings, warranting a more flexible and efficient mode of trial

Decision

Wilson J noted that trial by jury is the default mode of trial in New South Wales, and that an order for trial by judge alone under section 132 requires satisfaction that it is in the interests of justice. The court considered several factors in assessing this question, including the nature of the sole issue at trial, the complexity of the forensic psychiatric evidence, and the accused's particular vulnerability.

On the psychiatric evidence, the court acknowledged the well-established principle that juries are capable of evaluating expert psychiatric evidence and applying directions from a trial judge. The court did not accept that the mere presence of psychiatric issues, or the complexity of a mental illness defence, is itself sufficient to displace the default position of jury trial. However, the court treated the psychiatric evidence as a relevant contextual factor rather than a standalone basis for the order.

The determinative consideration was the risk that the stress of a jury trial could cause the accused to become floridly unwell and potentially unfit to stand trial during the proceedings. The accused's solicitor gave unchallenged evidence of his high levels of anxiety and its adverse effect on his comprehension and retention of information. Wilson J accepted that a jury trial is inherently more stressful than a judge-alone trial, given its greater formality and lesser procedural flexibility. Were the accused to become unfit mid-trial, the jury would be discharged without verdict and lengthy fitness proceedings would follow, delaying resolution of the matter.

The court concluded that proceeding by judge alone was the most efficient and flexible mode of trial, minimising the prospect of an incomplete proceeding while remaining consistent with a just outcome. On that basis, the application was granted.

Orders Made

  • The trial of the accused for the murder of the deceased, alleged to have occurred on 23 September 2016 at Bass Hill, New South Wales, is to be tried by judge alone pursuant to section 132 of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • Wilson J confirmed that trial by jury remains the default in New South Wales, and an order under section 132 of the Criminal Procedure Act 1986 (NSW) requires affirmative satisfaction that it is in the interests of justice to depart from that default.
  • The complexity of forensic psychiatric evidence and the sole issue being a mental illness defence did not, in themselves, justify a judge-alone order; the court reaffirmed that juries are capable of assessing such evidence with appropriate judicial direction.
  • Where unchallenged evidence establishes a real risk that the stress of a jury trial may cause an accused to become unfit to stand trial mid-hearing, that risk is a material factor in the interests-of-justice analysis under section 132.
  • A judge-alone trial's greater procedural efficiency and flexibility, compared with jury trial, was treated as a relevant consideration where an accused's psychiatric vulnerability created a specific risk of trial collapse.
  • In granting the application, the court's reasoning was confined to the particular circumstances of this accused, including his documented schizophrenia, anxiety-related impairment of comprehension, and the agreement among three forensic psychiatrists that a mental illness defence was available.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 131, 132
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 9, 10, 38
- Crimes Act 1900 (NSW)
- Jury Act 1977 (NSW)

Cases
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Gilbert v The Queen (2000) 201 CLR 414
- Long v R (2002) 128 A Crim R 11
- O'Hare v DPP [2000] NSWSC 430
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Bell (NSWCCA, 8 October 1998, unreported)
- R v Burrell [2004] NSWCCA 336
- R v D'Arcy (2003) 140 A Crim R 303
- R v Dudko (2002) 132 A Crim R 371
- R v Fang (No 3) [2017] NSWSC 28
- R v Jamal (2008) 72 NSWLR 258
- R v M'Naghten (1843) 10 Cl & Fin 200; 8 ER 718
- R v Milat (NSWCCA, 26 February 1998, unreported)
- R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318
- Radford v The Queen (1985) 42 SASR 266
- Stapleton v The Queen [1952] HCA 56; 86 CLR 358
- State of Western Australia v Rayney [2011] WASC 326
- The King v Porter [1933] HCA 1; 55 CLR 182
- The Queen v Falconer (1990) 171 CLR 30