R v Dawson [2024] NSWSC 260

Supreme Court New South Wales

Medium Neutral Citation: R v Dawson [2024] NSWSC 260 Hearing dates: 4 March 2024 Decision date: 04 March 2024 Jurisdiction: Common Law Before: R A Hulme AJ Decision: The accused is fit to be tried. Catchwords: CRIME – judge-alone trial – accused charged with murder – proposal to plead guilty after trial commenced – plea of guilty may not have been rationally based and in the interests of the accused – question as to fitness to be tried under Pt 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – inquiry held – accused fit to be tried. Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36(1), 42(1)(b), 44, 46 and Pt 4 Cases Cited: R v Sione; R v Dawson [2023] NSWSC 1594 White v R [2022] NSWCCA 241 Category: Procedural rulings Parties: Rex (Crown) Kayla Dawson (Accused) Representation: Counsel: P Hogan (Crown) P Johnson (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Aaron Legal (Accused) File Number(s): 225943/2021

JUDGMENT 1. HIS HONOUR: Kayla Dawson is being tried together with Richard Sione for the alleged murder of Jason Galleghan at Doonside on 4 August 2021. 2. Ms Dawson's defence is understood to be that the Crown is unable to prove beyond reasonable doubt she is guilty on any of the bases of liability alleged, namely joint criminal enterprise, extended joint criminal enterprise, and constructive murder. She also contends that if the essential elements of murder are proved, she should be found not guilty of murder but guilty of manslaughter because at the relevant time she had a substantial impairment of her capacity to understand events, or to judge whether her actions were right or wrong, or to control herself, because of a cognitive impairment which was so substantial to warrant liability for murder being reduced to manslaughter. 3. The trial commenced on Monday, 19 February 2024 and is being conducted without a jury following each accused making an election for trial by judge alone; R v Sione; R v Dawson [2023] NSWSC 1594. 4. On the ninth day of the trial, Thursday, 29 February 2024, I was informed by counsel for Ms Dawson that she had given instructions to enter a plea of guilty. I asked counsel if he could indicate the basis upon which his client was prepared to admit her guilt of murder and he responded: [1] I have had that conversation and the only basis upon which my client is admitting liability is really that she doesn't want to be here anymore and doesn't want to continue participating in the trial and wants it to be over. She was not able to articulate any basis in a criminal liability sense as to why she should be pleading guilty to murder. 1. In the course of determining the judge-alone trial applications of the accused two reports of a senior clinical neuropsychologist, Ms Lisa Zipparo, were tendered. In the report dated 26 July 2023 there appeared an assessment of Ms Dawson's cognitive capacity, with the conclusion that she was a person with a "mild intellectual disability with her overall intellectual capacities in the bottom 1 percent of the population". Albeit without reference to each of the matters pertaining to fitness to be tried in s 36(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Ms Zipparo, in a short concluding paragraph in this report, expressed an opinion that Ms Dawson was fit to plead and to stand trial. 2. I indicated to counsel that it did not appear that Ms Dawson's intention to plead guilty to murder was the result of a rational decision. 3. The following from the judgment of Bell CJ, Button and N Adams JJ in White v R [2022] NSWCCA 241 at [80] is pertinent: Whilst it is correct that, in Meissner [Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41], Brennan, Toohey and McHugh JJ said that: A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence" (emphasis added; footnotes omitted), a court hearing an application to withdraw a plea of guilty must be vigilant to ensure that the plea in truth is being proffered in the interests of the person entering it. That will be most unlikely if the stated reasons for entering it are not rational or fully informed. Again, questions of an accused's intellectual capacity and the extent of any advice he or she has received and properly understood may arise in application of the interests of justice calculus. 1. While on 29 February 2024 I was not dealing with an application to withdraw a plea of guilty, there was a real question as to whether the proposal to plead guilty was "in the interests of the person entering it". Given the sole basis for the proposed plea articulated by the accused to her legal representatives was that she did not wish to continue participating in the trial and just wanted it to be over, there was the prospect that the proposal did not derive from a rational and fully informed decision. As a consequence, I indicated I was not prepared to accept Ms Dawson's plea, if made, and that I had come to a view that a question had arisen as to her fitness to be tried under Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act. 2. Consequently, Ms Dawson's trial had to be suspended until the question was determined at an inquiry which must be held pursuant to s 42(1)(b) of the Act. Such an inquiry has just been held. All of the requirements of s 44 were adhered to. The evidence at the inquiry comprised oral evidence of Dr Adam Martin. He had previously spent an hour with Ms Dawson in order to provide a report for the Crown as to the substantial impairment partial defence issue. He had an opportunity to spend about an hour with her again today in relation to the question of fitness. 3. Whilst acknowledging that it was a matter for the Court, it was Dr Martin's view that it would likely be the conclusion that the accused Ms Dawson is fit to be tried. 4. Dr Martin gave evidence addressing each of the criteria set out in s 36(1) of the Act. Some of them are particularly pertinent to the issues raised in this case. 5. As to the accused's understanding of the offence that is the subject of the proceedings, Dr Martin was of the view that she had a more than adequate understanding. She understood that murder was more serious than manslaughter. She had an understanding of the potential sentences involved. She had a basic understanding of the concept involved in the partial defence of substantial impairment. 6. As to her ability to plead to the charge, Dr Martin said that she understood what "pleading" means and she gave her understanding of a guilty plea as opposed to a not guilty plea which she understood as an expression of innocence. 7. In relation to the accused's ability to make a defence or answer to the charge, Dr Martin was of the view that she gave a rational explanation for why she might plead guilty. He said she was aware that substantial impairment might arise from being easily led and not knowing right from wrong. 8. In relation to her ability to decide what defence she would rely upon and that she could make that decision known to her legal representatives and to the court, Dr Martin inferred she had this capacity from the way she spoke about her general situation and the reasons she gave for considering a different plea. She said that she had been advised as to the potential length of sentences for murder and manslaughter. 9. In relation to the reasons why she was proposing to enter a plea of guilty, she told Dr Martin she understood that a discount may not be available because it was not an early plea. She told him that she was fed up and wanted to speed things up. She said she had been threatened by a witness who may harm her if she got out of gaol early. She was scared of getting hurt. She was worried about the safety of her daughter. She spoke of wanting visits with her daughter and perceived that a plea of guilty might speed up this process to receive such visits. She told Dr Martin about the legal advice she had received and the possibility of being found not guilty of murder but guilty of manslaughter. She told Dr Martin that she wanted to own what she had done and own up to her mistakes. 10. Dr Martin prefaced all of this by say it was not his job to judge whether these reasons were sensible or well advised, but they were rational and she was able to communicate them. 11. That is not an exhaustive survey of Dr Martin's evidence, but that appears to be the gist of it. Dr Martin concluded the accused is fit to be tried and there is no evidence or submission to the contrary. I am aware that Dr Martin is an eminent forensic psychiatrist experienced in criminal cases and the concepts involved in the partial defence to murder of substantial impairment because of mental health or cognitive impairment. 12. The matter that gave rise to concern about Ms Dawson's fitness to be tried was her stated desire to enter a plea of guilty that may not have been rationally based and in her interests. That has been allayed by Dr Martin's evidence. 13. I am satisfied on the balance of probabilities that the accused Kayla Dawson is fit to be tried. 14. In accordance with s 46 of the Act her trial is to continue in accordance with the usual procedures.