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Supreme Court 21 February 2019

R v Gokhan Eyuboglu

[2019] NSWSC 181

Homicide
CRIMINAL LAW MURDER CONSENT OF CROWN LEAVE NOT OPPOSED BY CROWN

Citation: R v Gokhan Eyuboglu [2019] NSWSC 181
Court: Supreme Court of New South Wales
Date: 21 February 2019
Judge: Button J

Background

The accused faced a single count of murder arising from an alleged offence on 29 August 2017. The matter was set down for trial on 4 March 2019 before Button J. When the case was first listed for arraignment in May 2018, the defence indicated the sole issue would be self-defence.

By the time of a directions hearing on 1 February 2019, the defence position had shifted significantly. The foreshadowed defences were now a special verdict of not guilty on the ground of mental illness, and the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), which, if established, reduces murder to manslaughter.

The accused applied for trial by judge alone, and the Crown consented. The Crown's rationale was that proving either defence on the balance of probabilities would inevitably place prejudicial material before a jury. Because the application was made fewer than 28 days before the trial date, the accused required leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW).

  • Whether leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW) should be granted, given the application was made late.
  • Whether a trial judge's concern about the appropriateness of trial by judge alone, particularly where the defence of substantial impairment requires application of community standards, could justify refusing leave even when the Crown does not oppose it.
  • Whether, once leave is granted and both parties agree, the court retains any discretion to refuse an order for trial by judge alone under s 132(2).

Decision

Button J held that leave to bring the application should be granted and, following that grant, was obliged under s 132(2) of the Criminal Procedure Act to order trial by judge alone. Section 132(2) provides that once both parties agree to that mode of trial, the court must make the order. As Hamill J had put it in an earlier decision, the trial judge is effectively "stuck with it."

The central tension Button J examined was whether concern about a jury's role in applying community standards, particularly for the substantial impairment defence, could justify refusing leave as a way of preventing the judge-alone order. His Honour declined to use the leave requirement as a back-door mechanism to override the parties' agreement. He treated the two questions, whether leave should be granted and whether a judge-alone trial is appropriate, as conceptually distinct. Allowing the latter to defeat the former would, except in the most unusual circumstances, contradict the structure Parliament intended.

Button J also acknowledged that while community standards are ordinarily applied by juries, that principle is not absolute. Judges and magistrates apply such standards routinely, and the Crown had taken a considered position not to resist the application. The court was reluctant to second-guess that position.

On the question of leave itself, six factors weighed in favour of granting it: the Crown's non-opposition; the possibility of a judge-alone trial having been raised at the directions hearing before the leave requirement commenced; the absence of any "judge shopping" concern, given the defence had known the trial judge's identity for months; the development of the defence case over time; the application being made well before the trial date rather than at the last minute; and the difficulty of obtaining settled instructions from an accused with a serious chronic mental illness (both parties' experts agreed the accused suffered from schizophrenia).

Orders Made

  • The trial of R v Eyuboglu, listed to commence on 4 March 2019, was to proceed by way of judge alone before Button J.

Key Takeaways

  • Under s 132(2) of the Criminal Procedure Act 1986 (NSW), once both the accused and the Crown agree to trial by judge alone, the court must make the order and retains no general discretion to refuse on the ground of perceived appropriateness.
  • The leave requirement under s 132A(1) and the substantive question of the appropriate mode of trial are conceptually separate: a trial judge's reservations about appropriateness cannot ordinarily transform leave into a vehicle for overriding the parties' agreement.
  • Although the substantial impairment defence under s 23A of the Crimes Act 1900 (NSW) involves application of community standards, Button J confirmed this does not make jury trial mandatory, as judges and magistrates apply community standards as a matter of course.
  • The absence of "judge shopping" is a relevant factor in the leave analysis: where the defence team had known the trial judge's identity for months before the leave requirement commenced, that concern could be squarely dismissed.
  • Difficulty in obtaining instructions due to an accused's serious mental illness is a legitimate consideration weighing in favour of granting leave for a late application.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132(2), 132A(1)
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38

Cases
- R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513
- R v M'Naghten (1843) 8 ER Rep 718
- R v Hadler [2018] NSWSC 1151
- AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
- R v Stanley [2013] NSWCCA 124
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4