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Supreme Court 8 December 2020

R v Kerollos

[2020] NSWSC 1758

Homicide
CRIME MURDER APPLICATION FOR TRIAL BY JUDGE ALONE CREDIBILITY A NEUTRAL ISSUE APPLICATION GRANTED

Citation: R v Kerollos [2020] NSWSC 1758
Court: Supreme Court of New South Wales
Date: 8 December 2020
Judge: R A Hulme J

Background

The accused was charged with the murder of his wife on the evening of 18 May 2019. The facts of the killing were not in dispute: the accused followed his wife as she left work, stabbed her in the neck, and then called triple-zero to report what he had done. A knife and a half-bottle of whiskey were found in his car.

The background to the killing involved a deteriorating marriage. The accused had conducted an affair and, after it was discovered, developed a fixation that his wife was herself engaged in multiple extra-marital relationships. Family members noted signs of mental illness prior to the offence, and a psychologist had recorded complaints of hallucinations and hearing voices.

When proceedings reached the stage of setting a trial date, the accused applied to be tried by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). The Crown opposed the application. Both parties agreed the dispute could be resolved on the papers.

  • Whether the trial should proceed by judge alone rather than by jury under s 132 of the Criminal Procedure Act 1986 (NSW)
  • Whether the nature of the defences raised (mental illness and substantial impairment by abnormality of mind) favoured a judge-alone trial
  • Whether the interests of justice, including delays caused by the COVID-19 pandemic, supported granting the application

Decision

Hulme J granted the application for trial by judge alone. The judgment sets out the legal framework for both defences in play before turning to the s 132 criteria.

The mental illness defence, derived from R v M'Naghten and recognised by s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), applies where an accused suffered a defect of reason from a disease of the mind such that they did not appreciate the nature or wrongness of their act. The partial defence under s 23A of the Crimes Act 1900 (NSW) reduces murder to manslaughter where substantial impairment by an abnormality of mind, arising from an underlying condition, affected the accused's capacity to understand events, judge right from wrong, or control their actions. His Honour noted that the expert evidence available was directed to the substantial impairment limb, and that credibility was described as a neutral issue in the circumstances.

On the question of whether a judge alone was appropriate, his Honour was satisfied that the technical nature of the psychiatric evidence and the legal complexities of the mental illness and substantial impairment frameworks made the case well-suited to determination by a judge. The character and credibility of witnesses was not identified as a significant issue pulling toward a jury trial.

The COVID-19 pandemic featured prominently in the interests of justice analysis. The Supreme Court was operating with substantially reduced capacity to list criminal trials, with some accused persons having been in custody for four years or more. His Honour accepted that a speedier resolution was in the interests of all involved, including those grieving the deceased, witnesses whose memories were fading, and the accused himself. The court was satisfied that proceeding by judge alone served the interests of justice.

Orders Made

  • The trial of R v Kerollos is to proceed by way of judge alone.

Key Takeaways

  • Cases involving mental illness and substantial impairment defences can weigh in favour of a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW), particularly where the issues are predominantly technical and psychiatric rather than credibility-based.
  • Under the M'Naghten test, a mental illness defence requires that an accused suffered a defect of reason from a disease of the mind, such that they did not appreciate the nature and quality of their act or know that it was wrong. Self-induced intoxication cannot ground the defence.
  • The partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) operates where an underlying condition substantially impaired the accused's capacity to understand events, judge right from wrong, or exercise self-control. The onus of proof lies on the accused.
  • COVID-19 pandemic conditions, and the consequent reduction in the Supreme Court's capacity to list jury trials, were treated as a significant factor in the interests of justice when assessing an application for trial by judge alone under s 132.
  • Delays caused by the pandemic affect not only individual accused persons but the broader court list, including other accused persons who have spent extended periods in pre-trial custody. The Supreme Court weighed these systemic pressures alongside the interests of the parties directly involved.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 365
- Crimes Act 1900 (NSW), s 23A
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
- COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182
- Sodeman v The Queen (1936) 55 CLR 192
- Stapleton v The Queen (1952) 86 CLR 358
- Swain v Waverley Municipal Council (2005) 220 CLR 517
- Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357
- R v Gokhan Eyuboglu [2019] NSWSC 181
- R v Hadler [2018] NSWSC 1151
- R v Mackie (No 2) [2018] NSWSC 1654
- R v Flame [2020] NSWSC 1013
- R v Jaghbir (No 2) [2020] NSWSC 955