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Supreme Court 16 May 2024

R v JM

[2024] NSWSC 584

Assault & violenceHomicide
CRIMINAL PROCEDURE I MPENDING MURDER TRIAL FORESHADOWED RELIANCE ON SELF DEFENCE AND SUBSTANTIAL IMPAIRMENT RECENT NOTORIOUS FATAL AND NON FATAL KNIFE ATTACKS IN NSW

Citation: R v JM [2024] NSWSC 584
Court: Supreme Court of NSW
Date: 16 May 2024
Judge(s): Button J

Background

The accused, a 17-year-old referred to in the judgment by the pseudonym "Andrew," was involved in a violent confrontation at a fast food restaurant in Casino, NSW, on 29 May 2022. The Crown alleged that Andrew stabbed one young person, Damien, fatally in the throat, and wounded a second, William, during the same melee. The Crown's case was that prior romantic rivalry over a young woman had generated ongoing ill feeling between Andrew and Damien.

The murder trial was listed to commence before Dhanji J in the Supreme Court sitting at Coffs Harbour on 20 May 2024. The defence indicated that the central issues at trial would be complete and partial self-defence in relation to both counts, and the partial defence of substantial impairment by reason of Foetal Alcohol Spectrum Disorder (FASD) in relation to the murder count.

A few days before trial, the accused applied for the trial to proceed by judge alone rather than before a jury. The Crown opposed the application on its merits, though it did not oppose the granting of leave to bring the application late.

  • Whether leave should be granted under s 132A(1) of the Criminal Procedure Act 1986 (NSW) for a late application for trial by judge alone.
  • Whether it was in the interests of justice to order a trial by judge alone under s 132(4) of the Criminal Procedure Act 1986 (NSW), having regard to recent high-profile knife attacks and, in particular, a recent unsolved fatal stabbing in Coffs Harbour itself.

Decision

Button J granted leave to bring the late application without opposition, having been satisfied that the substantive test was met. His Honour then turned to the core question: whether ordering a judge-alone trial was in the interests of justice.

His Honour identified strong considerations favouring a jury trial. The questions of reasonableness in self-defence and the normative judgment in substantial impairment (that is, whether impairment was "so substantial as to warrant" reduction from murder to manslaughter under s 23A) are widely regarded as most appropriately determined by a cross-section of the community. Button J also acknowledged the force of the Crown's submissions that careful empanelment processes, judicial directions, and experienced counsel could mitigate any risk of juror bias, and that there is a genuine public interest in community standards being applied by twelve citizens rather than a single judge.

Nonetheless, his Honour found the circumstances in Coffs Harbour to be decisive. Added to national trauma from recent high-profile knife attacks in Bondi Junction, Wakeley, and Forbes was a very recent, unsolved fatal stabbing of a local community member in Coffs Harbour itself. Button J accepted that, in a town of that size, with no arrest and no identified suspect, there was a real risk that jurors, however well-intentioned, might harbour at least unconscious inflamed feelings about knife violence that could affect their deliberations. He also noted the particular poignancy of the CCTV footage showing the deceased, a child, in the moments before his death.

Describing the decision as finely balanced, Button J concluded that it was in the interests of justice to permit the accused to forgo a jury trial and proceed before a judge alone. His Honour expressly stated that, but for the recent Coffs Harbour homicide, he would not have departed from the norm of trial by jury.

Orders Made

  • Leave granted to the accused to bring the application for trial by judge alone at that time.
  • The trial, listed to commence in the Supreme Court sitting at Coffs Harbour on Monday 20 May 2024, to proceed by judge alone.

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986 (NSW), the test for ordering a judge-alone trial is whether it is in the interests of justice to do so, and that assessment requires a careful weighing of competing considerations in the specific circumstances of each case.
  • Button J emphasised that self-defence and the normative judgment in substantial impairment are generally best determined by a jury representing a cross-section of the community, a view reinforced by reference to R v Flame [2020] NSWSC 1013.
  • The Supreme Court treated localised, recent, and unsolved knife violence in the very town where a trial is to be held as a factor capable of tipping the interests-of-justice balance toward a judge-alone order, even where national publicity alone would not have done so.
  • His Honour's express acknowledgment that the matter was "finely balanced" signals that this outcome was closely dependent on a convergence of unusual circumstances: the timing, the specific location of the trial, and the unsolved nature of the local homicide.
  • A late application for judge-alone trial under s 132A(1) may be accommodated where the Crown does not oppose leave and the court is satisfied the substantive test is met, though the lateness of the application remains a relevant contextual factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23A (substantial impairment), 418 (self-defence)
- Criminal Procedure Act 1986 (NSW), ss 132 (trial by judge alone), 132A (late applications)

Cases:
- R v Flame [2020] NSWSC 1013