Citation: R v Fuller (No 1) [2024] NSWSC 1206
Court: Supreme Court of New South Wales
Date: 25 September 2024
Judge: Ierace J
Background
The accused faced two charges: intimidating a named individual with the intention of causing fear of physical or mental harm, and the murder of another person. Both alleged offences occurred on 28 July 2021, and the accused had been on remand since his arrest that same day. The trial was fixed to commence in Newcastle on 23 September 2024, with an estimated length of ten weeks.
The anticipated issues at trial were the partial defences of excessive self-defence and substantial impairment under the Crimes Act 1900. The accused did not propose to contest that he was the physical cause of the deceased's death. Two forensic psychiatrists had previously examined the accused and each diagnosed him with a form of personality disorder.
On 4 September 2024, nineteen days before the trial was due to begin, the defence filed an application for the trial to proceed by judge alone. Because this application fell outside the statutory 28-day window under the Criminal Procedure Act 1986, leave of the court was required.
Legal Issues
- Whether leave should be granted under s 132A(1) of the Criminal Procedure Act 1986 for the accused to apply for a judge-alone trial, given the application was made fewer than 28 days before trial
- Whether, if leave were granted, the court was obliged to make the judge-alone order under s 132(2) of the Act, notwithstanding that one of the partial defences raised a community standards question ordinarily suited to jury determination
Decision
Issue 1: Whether leave should be granted under s 132A(1)
The court identified the key consideration as whether the grounds for the application justified the orders sought in the interests of justice. Evidence from the accused's solicitor described difficulties encountered in obtaining instructions from and giving advice to the accused during rolling conferences in the weeks leading up to trial, following the readiness hearing on 21 August 2024. The court drew on the reasoning in R v Hadler [2018] NSWSC 1151, where Wilson J had found it in the interests of justice to proceed by judge alone because of the risk of the accused descending into a florid illness and consequential unfitness during a jury trial (at [13]).
The court also noted that the purpose of s 132A is partly to prevent parties from timing applications with foreknowledge of the trial judge's identity. However, had the same concerns arisen before the 28-day cut-off and even with that knowledge, the court would have been obliged to make the order because the Crown consented (at [14]). The court was satisfied that granting leave was appropriate in the interests of justice (at [16]).
Issue 2: The substantial impairment defence and s 132(5)
The court acknowledged that the partial defence of substantial impairment involves a community standards judgment, which s 132(5) of the Act and the Court of Criminal Appeal in Potts v R (2012) identify as a matter ordinarily favouring jury determination (at [15]). Despite this concern, the court observed that, had the application been made within the 28-day period with Crown consent, s 132(2) would have removed any power to refuse the order. This consideration informed the leave analysis (at [15]-[16]).
Issue 3: Fitness to be tried
After the order was made, the defence obtained a further report from Dr Gerald Chew, dated 18 September 2024, which was provided at the commencement of the trial. Dr Chew expressed the opinion that the accused was unfit to be tried by jury but fit to be tried by judge alone (at [17]).
Orders Made
- Leave granted to the accused pursuant to s 132A(1) of the Criminal Procedure Act 1986 to apply for an order that he be tried by judge alone
- Order made pursuant to s 132(1) of the Criminal Procedure Act 1986 that the accused be tried by judge alone
Key Takeaways
- Where a late application for a judge-alone trial is made under s 132A(1) of the Criminal Procedure Act 1986, the court must be satisfied that granting leave is in the interests of justice, having regard to the substantive grounds advanced for the application (at [13], [16]).
- The Supreme Court confirmed that the risk of an accused becoming unfit to stand trial due to the length and stress of jury proceedings can constitute a sufficient basis, in the interests of justice, to support both a grant of leave and a judge-alone order (at [13], [16]).
- Where the Crown consents to a judge-alone application made within time, s 132(2) obliges the court to make the order; this statutory compulsion was treated as a relevant factor in assessing the weight to be given to the lateness of the application (at [14]-[15]).
- Under s 132(5) and the Court of Criminal Appeal's reasoning in Potts v R, the substantial impairment defence ordinarily favours jury determination because it requires a community standards judgment; however, this consideration did not override the leave and order requirements in the circumstances of this case (at [15]).
- A subsequent psychiatric report found the accused unfit for a jury trial but fit for a judge-alone trial, which arose after the orders were made and was provided at the commencement of the trial (at [17]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a), 23A(1)(b )
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW) , ss 132(1), (2), (4), (5), 132A(1)
Cases
- Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
- R v Hadler [2018] NSWSC 1151