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Supreme Court 8 August 2022

R v White

[2022] NSWSC 1060

HomicideFirearms & weapons
CRIME APPLICATION FOR TRIAL BY JUDGE ALONE

Citation: R v White [2022] NSWSC 1060
Court: Supreme Court of New South Wales
Date: 8 August 2022
Judge(s): Ierace J

Background

The accused faced one count of murder, two counts of discharging a firearm with intent to cause grievous bodily harm, and four counts of firing a firearm at a dwelling-house. The charges arose from an incident on 17 March 2020, during which the accused allegedly fired rounds from two firearms at people and residences in his street, wounding four people and fatally wounding one.

The accused, who was 40 at the time, allegedly admitted to police that he had consumed methylamphetamine that day. He had also suffered a traumatic brain injury in 2000 and had a history of drug abuse. The defence indicated it would rely on the impairment defence (not guilty by reason of mental health impairment) and, in the alternative, substantial impairment as a partial defence to reduce murder to manslaughter.

The defence applied for a trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). The Crown did not consent. Ierace J heard the application on 3 August 2022 with judgment delivered on 8 August 2022.

  • Whether it was in the interests of justice to order a trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW), in the absence of the prosecution's consent.
  • Whether the technical or complex nature of anticipated forensic psychiatric evidence justified departing from a jury trial.
  • Whether the second limb of the substantial impairment defence under s 23A(1)(b) of the Crimes Act 1900 (NSW), which involves a value judgment, was more appropriately determined by a jury.

Decision

The sole basis for the application was the technical nature of the anticipated forensic psychiatric evidence. Two experts had been retained: Dr Richard Furst for the defence and Dr Eagle for the prosecution. Both experts had diagnosed or assessed conditions relating to the accused's acquired brain injury, drug-induced disorders, and potential psychotic state at the time of the offences. The defence argued this complexity favoured a judge alone.

Ierace J rejected the application. His Honour observed that both forensic psychiatrists were experienced expert witnesses in jury trials, well capable of translating complex psychiatric concepts into language accessible to jurors without a medical background. The complexity of the expert evidence, on its own, did not make a judge-alone trial in the interests of justice.

His Honour also placed considerable weight on the nature of the substantial impairment defence. Relying on the Court of Criminal Appeal's observations in Potts v R, his Honour held that the second limb of s 23A(1)(b) of the Crimes Act, which requires that the impairment be "so substantial as to warrant liability for murder being reduced to manslaughter," involves a value judgment that is best left to a jury as the representative of the community.

The two cases cited by the defence in support of the application, R v Kerollos and R v Hadler, were distinguished on the basis that each involved exceptional circumstances. Kerollos was decided during the height of COVID-19 disruptions to jury trials, and Hadler involved a real risk that the stress of a jury trial would render the accused unfit to stand trial. No comparable exceptional circumstances existed in the present case.

Orders Made

  • The accused's application for a trial by judge alone order was dismissed.

Key Takeaways

  • The second limb of the substantial impairment defence under s 23A(1)(b) of the Crimes Act 1900 (NSW), requiring a finding that the impairment warrants reducing murder to manslaughter, involves a community value judgment that courts will generally leave to a jury.
  • Complexity of forensic psychiatric evidence is not, by itself, sufficient to justify a trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW).
  • Prior decisions granting judge-alone trials in cases involving the same defences (such as R v Kerollos and R v Hadler) were distinguished as turning on exceptional circumstances, including COVID-19 disruptions and a specific risk to the accused's fitness to stand trial.
  • Where forensic experts are experienced in jury proceedings and capable of presenting complex material accessibly, that capacity weighs against the need for a judge-alone trial.
  • Absent exceptional circumstances, the interests of justice under s 132(4) of the Criminal Procedure Act will not readily support displacing the right of the prosecution to insist on a jury trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4C, 23A, 33A, 93GA
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)

Cases:
- Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
- R v Kerollos [2020] NSWSC 1758
- R v Hadler [2018] NSWSC 1151