R v Villalon [2013] NSWSC 1516

Supreme Court New South Wales

Medium Neutral Citation: R v Villalon [2013] NSWSC 1516 Hearing dates: 15 October 2013 Decision date: 17 October 2013 Before: Bellew J Decision: (1)I grant leave to the accused to make application pursuant to s. 132 of the Criminal Procedure Act for a trial by judge alone; (2)I dismiss the application. Catchwords: CRIMINAL LAW - practice and procedure - application for trial by judge alone - where medical evidence supported the raising of the defence of substantial impairment by the accused - where principal issue whether impairment was so substantial as to warrant liability for murder being reduced to manslaughter - where assessment of that issue would require application of community standards - application refused Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Potts v R [2012] NSWCCA 229 R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 R v Bretherton [2013] NSWSC 1036 R v Hucker [2002] NSWSC 1068 R v Stanley [2013] NSWCCA 124 Ziah v R [2013] NSWCCA 27 Category: Principal judgment Parties: Regina - Crown Michael Villalon - Defendant Representation: Mr G Tabuteau - Crown Mr P Winch - Accused S Kavanagh Solicitor for Public Prosecutions - Crown Legal Aid New South Wales - Accused File Number(s): 2012 / 679960

Judgment

INTRODUCTION 1Michael Villalon ("the accused") has pleaded not guilty to an indictment in the following terms: "That he did, on 28 February 2012 at Mascot in the state of New South Wales, murder Keith Owen Chaney." 2The trial is fixed to commence on Tuesday 22 October 2013. 3By notice of motion dated 19 September 2013 the accused has made an application pursuant to s. 132 of the Criminal Procedure Act 1986 ("the CPA") that he be tried by a judge alone. That application has been opposed by the Crown. 4Section 132 of the CPA is in the following terms: 132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a "trial by judge order"). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. 5Section 132A(1) of the CPA requires that except with the leave of the court, an application under s. 132 is to be made not less than 28 days before the date fixed for trial. The notice of motion in the present case was filed outside of that time period. However, the Crown does not oppose a grant of leave to bring the application. 6The notice of motion is supported by an affidavit of Sophie Mae Williams, the solicitor for the accused, affirmed on 20 September 2013. Paragraphs 6 and 7 of that affidavit are in the following terms: "6. It is anticipated that the primary issue at this trial will be whether the accused should be found not guilty of murder, but guilty of manslaughter, on the basis that he was substantially impaired at the time he killed the deceased, pursuant to s. 23A of the Crimes Act 1900 (NSW). 7. On 12 December 2012 (a solicitor employed by the Legal Aid New South Wales) wrote to Ms Carla Black, a solicitor employed by the Office of the Director of Public Prosecutions, indicating that the accused had instructed that he intends to plead not guilty to murder but guilty to manslaughter on the basis that he was substantially impaired at the time he killed the deceased, Keith Chaney." 7Annexed to the affidavit of Ms Williams were three reports of specialist medical practitioners who, it is anticipated, will give evidence at the accused's trial. Those reports are as follows: (i)a report of Dr Westmore of 12 June 2012; (ii)a report of Dr Allnutt of 5 April 2013; and (iii)a report of Dr Furst of 15 September 2013. 8The opinions of Drs Westmore and Furst are relied upon by the accused. The opinion of Dr Allnutt is relied upon by the Crown. I have made further reference to those opinions below. 9The Crown tendered a copy of the transcript of the accused's interview with police, along with a copy of the statement of Detective Flood, one of the investigating police. The affidavit of Ms Williams and its annexures, along with the other material relied upon by the Crown, comprised exhibit A on the application.