Supreme Court New South Wales Medium Neutral Citation: R v JM [2024] NSWSC 584 Hearing dates: 14 May 2024 Decision date: 16 May 2024 Jurisdiction: Common Law Before: Button J Decision: (1) Leave is granted to the accused to bring the application for trial by judge alone at this time. (2) The trial of the accused in this matter, listed to commence in the Supreme Court sitting at Coffs Harbour on Monday, 20 May 2024, is to proceed by judge alone. Catchwords: CRIMINAL PROCEDURE – impending murder trial – alleged stabbing by one juvenile of two others, one fatally – foreshadowed reliance on self-defence and substantial impairment – application for trial by judge alone of accused opposed by Crown – leave permitting late application not opposed – whether in the interests of justice to make the order – recent notorious fatal and non-fatal knife attacks in NSW – very recent homicide by multiple stabbings in Coffs Harbour – perpetrator still at large – apparent inability for trial to be conducted elsewhere, or at a later time – finely balanced competing considerations – application granted Legislation Cited: Crimes Act 1900 (NSW), ss 23A, 418 Criminal Procedure Act 1986 (NSW), ss 132, 132A Cases Cited: R v Flame [2020] NSWSC 1013 Texts Cited: Nil Category: Principal judgment Parties: Rex (Crown) JM (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) File Number(s): 2022/155260 Publication restriction: Nil JUDGMENT Introduction 1. This judgment resolves an application for judge alone filed by the accused, and opposed by the Crown, in an upcoming murder trial that is to commence in a few days' time before Dhanji J in the Supreme Court sitting at Coffs Harbour. 2. In accordance with s 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act), due to the timing of the application leave is required. The Crown prosecutor indicated, however, that if I was satisfied that the substantive test had been established, he would not oppose that leave being granted. 3. Turning to that test, it is simply whether I consider that it is in the interests of justice for a trial by judge alone to be ordered, in accordance with s 132(4) of the Act. 4. Because I believe that both parties should be in a position to appeal against my determination before the trial as they see fit, I provide this judgment, albeit brief in light of the time permitted, setting out my reasons for making the order. As needs be, the transcript will be available to see in more detail the way in which the submissions of both parties developed. Background 1. The background can be shortly stated. The accused (to whom I shall sometimes refer by the pseudonym "Andrew") was 17 years of age on 29 May 2022. On that day, there was a violent confrontation in the form of a brief melee between two groups of young people at a Kentucky Fried Chicken restaurant in the inland Northern Rivers town of Casino. Andrew was a member of one group, and the deceased (Damien) and another young person, William, were members of the other. 2. The Crown case is that Andrew and Damien had had romantic relationships with a young woman at different times, and there was ongoing ill feeling as a result. 3. The Crown case is that, in the course of the melee, Andrew stabbed Damien to the throat, causing him to bleed copiously. Tragically, Damien passed away at the scene. The Crown case is also that, in the course of the same melee, Andrew stabbed William, thereby wounding him, and at the time that he did so, Andrew intended to cause him really serious physical injury. 4. Defence counsel has explained that the following issues will require determination by the tribunal of fact in the trial. 5. Pertaining to the murder count, self-defence, both complete and (contingently) partial, the former if successful leading to complete acquittal, and the latter if successful leading to a verdict of not guilty of murder, but guilty of manslaughter. It is well known that that defence calls upon the tribunal of fact to consider whether any conduct said to have been done in self-defence "was a reasonable response in the circumstances as the accused perceived them", in accordance with s 418 of the Crimes Act 1900 (NSW). 6. Pertaining also to the murder count, the partial defence of substantial impairment, which, if established by the accused, would result in a verdict of not guilty of murder but guilty of manslaughter. Expert evidence was placed before me to the effect that Andrew may suffer from a cognitive impairment, arising from Foetal Alcohol Spectrum Disorder (FASD). Again, it is well known that a very significant part of that partial defence is consideration by the tribunal of fact of whether any impairment suffered by an accused person was so substantial as to warrant reduction in liability from murder to manslaughter, in accordance with s 23A(1)(b) of the Crimes Act. I shall refer to that question as "the normative judgment" in substantial impairment. 7. Finally, as I understand it, pertaining to the wounding count, complete self-defence (there being no "middle ground" that could permit consideration of partial self-defence). Again, that will require consideration by the tribunal of fact of the reasonableness of the response of Andrew, in the circumstances as he perceived them. Bases of application 1. The relevant context of this late application was explained by defence counsel as follows. 2. Quite recently, a mass killing occurred in the Sydney suburb of Bondi Junction, effected by a knife, giving rise to worldwide attention and undoubted trauma to Australian society. 3. A few days later, a bishop was attacked in the course of a church service in a suburb of Sydney, allegedly by a young person. The service was being live streamed, with the result that images of the attack have been very widely distributed, including, apparently, images of the precise moment of injury. Again, the weapon used by the alleged perpetrator was said to be a knife. The incident provoked a further deeply emotional response in our country. 4. Quite recently, a young woman from the western New South Wales town of Forbes was allegedly murdered by a former domestic partner. Again, her death led to an outpouring of grief, and statements by many that such violence constitutes a national emergency in this country. To my knowledge, the alleged method of infliction of death has not been publicised. 5. Finally, in early May 2024, a highly regarded young man was stabbed to death around dawn at a beach in the northern suburbs of Coffs Harbour. The perpetrator has not been identified, and is still at large. The murder has been extensively reported upon in the local media of that Mid North Coast town, and one can readily infer that such an event in a town of that size is, yet again, a matter of emotional reaction on the part of its citizens. 6. Defence counsel explained that the accused and his legal team were content for a trial by jury, despite the developing background sketched above, up until the point of the murder in Coffs Harbour. From that point on, it was decided to forego the right of the accused to a trial by twelve citizens, simply on the basis that a "tipping point" had been reached, beyond which one might fear that the accused would not receive a fair trial. 7. Many factors pointing towards trial by jury were accepted by defence counsel, as follows. 8. The question of reasonableness in self-defence, and the normative judgment in substantial impairment, are very often best decided by a cross-section of the community, rather than a single person. 9. Although (it was submitted) the familiarity of judicial officers, especially of this Court, with serious crime and indeed homicide may bring some advantages to those questions, that familiarity may also have its drawbacks, not least because a judge "expert" in such matters may have trouble reflecting the standards of community members who are, thankfully, unfamiliar with them. 10. Judicial officers, despite recent progress, continue to constitute a very "thin slice" of Australian society, and cannot be thought of as representative with regard to such matters as age, gender, ethnicity, educational background and achievement, and socio-economic status. Jurors, in contrast, can be. 11. Steps could be taken in the trial, before empanelment, during the evidence, during the addresses, and during the summing-up to remind the jury to put from their minds emotive responses to the event, in a reasonably nearby New South Wales town, of one young person bringing the life of another to a violent end. And that task could be undertaken not only by the learned trial judge, but also both counsel, each of whom is a very experienced criminal advocate (and, I respectfully interpolate, a very persuasive one). 12. As I say, all of that – much of which constituted submissions made by the Crown before me – was accepted in its force. But the point was simply made that, as things stand, of all the regional centres in New South Wales, Coffs Harbour is one in which at the moment, one might query whether the accused in this matter, with these central issues for determination, would indeed receive a fair trial. For that reason, it was submitted, it is in the interests of justice to permit the accused to forego his right to trial by jury, and order that the trial proceed by judge alone. 13. Above and beyond what I have recounted above, the Crown submitted: that these questions are absolutely best determined by a jury; that a very intensive process could be taken before empanelment, whereby any juror who even suspected that they may not be able to be impartial could be excluded; that jurors could be asked to reflect on their own possible idiosyncratic feelings, and as needs be disregard them in favour of their assessment of what community standards generally might be; that the Crown case here is not of a random attack but rather of developing ill-feeling, in contrast to what is the current thesis about the recent homicide in Coffs Harbour; and that, although the right to trial by jury is classically vested in an accused person, there is an undoubted public interest in community standards in a matter such as this being applied by twelve members of the community. Determination 1. Turning to my determination, I start by respectfully expressing the view that it is regrettable indeed that it seems that this trial must not only proceed in a few days' time, but also, for immutable logistical reasons, must proceed at Coffs Harbour, even though the closest Supreme Court "circuit town" to Casino is in fact Lismore. And it is also well-known that trials are sometimes moved for all manner of reasons to other centres; two that spring to mind here could be Port Macquarie and Newcastle. 2. I say that because I regard the fact that this trial seemingly must proceed at Coffs Harbour and must proceed now as the "tipping point" in my own determination. Even so, counsel and I agreed that that time and place of trial is the basis upon which I must decide this matter. 3. Like defence counsel, I would have had no difficulty in this matter proceeding by way of trial by jury but for the recent homicide in that Mid North Coast town. I say that because, despite all of the publicity about the atrocity in Bondi Junction, and the recent wounding of the bishop, allegedly by a young person, these kinds of issues are, in my respectful opinion, best determined by a group of citizens, not a single judge, other things being equal. Indeed, the "open-textured" nature of the normative judgment, whereby the statute gives no assistance as to the bases upon which one might or might not believe that reduction from murder to manslaughter is "warranted", in my respectful opinion, argues powerfully for determination by members of the community: see R v Flame [2020] NSWSC 1013. 4. Here, however, to be added to the national trauma arising from what is understood to have occurred in Bondi Junction, Wakeley, and Forbes, is the very recent violent death by stabbing of a member of the Coffs Harbour community. That centre is not a small Australian village, to be sure, but nor is it a metropolis. Murders there, I believe, are reasonably rare. Murders without an arrest must be rarer, and murders without a suspect rare indeed. I accept that, in that particular town, in light of all that has happened in New South Wales over the past many weeks, there is a risk of members of the community, however well-intentioned, being incapable of putting aside at the least unconscious inflamed feelings about the question of violent death by the use of a knife in Australian society. 5. To be added to that thought is the fact that, in this case, Damien was just a child, and one watches even the pixelated CCTV (agreed by the parties to be appropriate for tender) well knowing that he is shown in the moments before the stabbing, he completely ignorant of his impending death. That adds, I think, an extra poignancy to the matter. 6. In short, although the matter is finely balanced in my mind, I have come to the view that it is in the interests of justice to permit the accused advisedly to forego his right to judgment by his peers, and to submit himself to the determination of a single judicial officer. Orders 1. Leave is granted to the accused to bring the application for trial by judge alone at this time. 2. The trial of the accused in this matter, listed to commence in the Supreme Court sitting at Coffs Harbour on Monday, 20 May 2024, is to proceed by judge alone. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2024