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Supreme Court 11 August 2021

R v Warren Scott

[2021] NSWSC 1004

Homicide
WHETHER IN INTERESTS OF JUSTICE APPLICATION OF COMMUNITY STANDARDS COVID 19 RESTRICTIONS SUSPENSION OF JURY TRIALS

Citation: R v Warren Scott [2021] NSWSC 1004
Court: Supreme Court of New South Wales
Date: 11 August 2021
Judge: N Adams J

Background

The accused was charged with the murder of a man at Eden, New South Wales, on 4 April 2019. The deceased had been living with the accused's mother, and both were present at her home on the day of the offence. The accused consumed alcohol during the day, and the events escalated until police arrived to find the deceased fatally stabbed. An autopsy identified 31 stab wounds to the leg and chest. The accused had been in custody on remand since the date of his arrest.

The accused pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment, a partial defence under the Crimes Act 1900 (NSW). The Director of Public Prosecutions did not accept that plea, and a jury trial was listed for 23 August 2021. In late June 2021, jury trials in Sydney were suspended due to COVID-19 restrictions.

Senior counsel for the accused applied for a trial by judge alone under s 132(1) of the Criminal Procedure Act 1986 (NSW). The Crown opposed the application, and the matter was determined on written submissions.

  • Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order a trial by judge alone, where the Crown opposed the application.
  • Whether the trial raised factual issues requiring the application of objective community standards under s 132(5), which could warrant refusing the order.
  • What weight, if any, should be given to COVID-19-related suspension of jury trials and the resulting delay in remand.
  • The relevance of s 365 of the Criminal Procedure Act 1986 (NSW), which empowers the court to order a judge-alone trial on its own motion during a public health emergency.

Decision

Adams J identified the governing test as whether making the order was in the interests of justice under s 132(4). Because the Crown opposed the application, the court was required to affirmatively find that it would serve those interests, rather than simply acceding to a joint election.

The central factual issue in the trial was whether the accused's conduct was caused by a substantial abnormality of mind (supporting the partial defence of substantial impairment under s 23A of the Crimes Act) or by alcohol intoxication (relevant to intention under ss 428C(1) and 428E(1)(a)). Both the defence experts and the Crown expert agreed the accused suffered from schizophrenia, though they differed on the relative contributions of mental illness and intoxication to his behaviour at the time. The court considered whether this framing engaged community standards under s 132(5), noting that such a question could, in principle, warrant retaining a jury.

The court found the community standards consideration was of limited significance in this trial. The issues were primarily medical and psychiatric in nature, to be resolved largely by expert evidence, and did not turn on the kind of normative judgment, such as reasonableness or dangerousness as assessed by community values, that s 132(5) is directed at protecting.

The court placed considerable weight on the COVID-19 suspension of jury trials and the prospect of significant further delay. By the time a jury trial could proceed, the accused would likely have been on remand for approximately three years. The court also noted that s 365 of the Act independently empowered it to order a judge-alone trial on its own motion during the public health emergency, without the constraints of s 132(5) applying. Adams J was explicit that the conclusion would not have been reached absent the suspension of jury trials and the enactment of s 365.

Orders Made

  • Leave granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW).
  • The trial of the accused for murder be heard by judge alone, pursuant to s 132(4) of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986 (NSW), a court may order a judge-alone trial over Crown opposition only where it is positively satisfied that doing so is in the interests of justice.
  • Section 132(5) permits a court to refuse a judge-alone order where the trial will involve factual issues requiring the application of objective community standards; however, this provision does not operate as an automatic bar where the dominant issues are expert medical and psychiatric questions.
  • The court treated COVID-19-related suspension of jury trials and the resulting period of remand as significant factors in the interests-of-justice analysis, noting the delay would extend the accused's time on remand to approximately three years.
  • Section 365 of the Criminal Procedure Act 1986 (NSW), which allows the Supreme Court to make a judge-alone order on its own motion during a public health emergency, operates independently of s 132(5) and does not require the court to consider community standards as a potential basis for refusal.
  • Adams J was explicit that, absent the jury trial suspension and s 365, the order would not have been made, which limits the broader application of this reasoning to ordinary circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 428C(1), 428E(1)(a)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 365

Cases
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Flame [2020] NSWSC 1013
- R v Gokhan Eyuboglu [2019] NSWSC 181
- R v Hadler [2018] NSWSC 1151
- R v Jaghbir (No 2) [2020] NSWSC 955
- R v Kerollos [2020] NSWSC 1758
- R v Quinn (No 2) [2016] NSWSC 1244
- R v Stanley [2013] NSWCCA 124
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4