Supreme Court New South Wales Medium Neutral Citation: R v McKnight [2014] NSWSC 398 Hearing dates: 4 April 2014 Decision date: 09 April 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: (1)Grant leave to the accused to make application for a trial by judge order. (2)Application for trial by judge order refused. (3)Direct the accused to file and serve on the Crown a notice in accordance with the provisions of s 151 Criminal Procedure Act 1986 (NSW) within 14 days of the date hereof. (4)Direct that the Director of Public Prosecution by notice in writing indicate whether he seeks to call evidence to disprove the contention of substantial mental impairment before or after the evidence for the accused in accordance with s151(3) Criminal Procedure Act. (5)For the prevention of prejudice to the proper administration of justice the publication of these orders and my reasons for them is restricted under s 7 Court Suppression and Non Publication Orders Act 2010 (NSW) until the return of the jury's verdict in the trial, publication to the parties and their legal representatives excepted. Catchwords: CRIMINAL LAW - practice and procedure - application for a trial by judge alone - whether in the interests of justice Legislation Cited: Court Suppression and Non Publication Orders Act 2010 (NSW) s 7 Crimes Act 1900 (NSW) s 23A Criminal Procedure Act 1986 (NSW) ss 132, 132A, 151 Cases Cited: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 R v Belghar [2012] NSWCCA 86; R v Fardon [2010] QCA 317; R v Glennon (1992) 173 CLR 592 R v Hubbert (1975) 29 C.C.C. (2D) 279; R v King [2013] NSWSC 448 R v Stanley [2013] NSWCCA 124; Swain v Waverley Municipal Council (2005) CLR 517, TVM v State of Western Australia [2007] WASC 299. Category: Interlocutory applications Parties: Regina (Crown) Michael McKnight (Accused) Representation: Counsel: Mr J Pickering SC (Crown) Mr G Brady (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Accused) File Number(s): 2012/104525 Judgment 1On the 28th April 2014 Mr McKnight is to stand trial for allegedly murdering Stafford David Ray on the 25th March 2012 in the Sydney CBD. I am informed by Mr Brady of Counsel that the accused will enter a plea of not guilty of murder, but guilty of manslaughter. 2Below I have set out fully the statement of the Crown case. I understand that Mr McKnight will not dispute that he kicked the deceased in the head a number of times inflicting a traumatic brain injury, from which Mr Ray died several hours later. 3Mr McKnight was originally charged with manslaughter, which was upgraded to murder before the accused had entered a plea. 4I am informed that Mr McKnight will defend the murder charge by challenging the Crown contention that in repeatedly kicking Mr Ray he actually intended to kill him or inflict really serious personal injury. In the alternative, he says that if he would otherwise be guilty of murder, his offending should be reduced to manslaughter by reason of substantial impairment by an abnormality of mind arising from a pre-existing mental condition within s 23A Crimes Act 1900 (NSW). He accepts that he carries the onus of establishing this partial defence on the balance of probabilities. 5Mr McKnight is seeking leave under s 132A Criminal Procedure Act 1986 (NSW) to make an application for trial by Judge alone out of time. Through his solicitor, Mr McKnight gave notice to the Crown some time ago of his intention to make this application and the Crown consents to the grant of leave for the application to be made out of time. The Crown does not consent to the making of a trial by Judge order under s 132 of the Criminal Procedure Act. 6I grant leave for this application to be made out of time. Legal principles 7As I have said, the Court's power to make an order for trial by Judge alone is conferred by s 132 Criminal Procedure Act. Because the prosecutor does not agree to trial by Judge alone, I may only make such an order if I consider "it is in the interests of justice to do so" (s 132(4)). That general discretion is to a degree limited by the provisions of s 5 (notwithstanding its opening words): 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. 8The statute must be applied by reference to the facts and circumstances of the case under consideration. Although trial by jury is the so-called default position, there is no legal presumption favouring one mode of trial over the other. The only presumption is that the measure of justice is the same, whatever the mode of trial, whether by jury or by Judge alone. 9In these circumstances an applicant for a trial by Judge order need rebut no presumption nor discharge any formal burden of proof. The applicant does bear an evidentiary burden to introduce evidence or argument which engages the statutory discretion. As Chesterman JA said in R v Fardon [2010] QCA 317 at [81] of the Queensland legislation, cited with approval in R v Belghar [2012] NSWCCA 86 by Hidden J at [118] "an accused cannot have a trial by Judge alone for the asking". Moreover, whilst there is no presumption, the discretion must be exercised by reference to the consideration that Parliament has assumed that in the ordinary course a trial for a serious crime on indictment should be by jury: TVM v State of Western Australia [2007] WASC 299. 10In R v Stanley [2013] NSWCCA 124 at [42] Barr AJ (Macfarlan JA and Campbell J agreeing) said: The fact that the applicant has decided on legal advice to relinquish any benefit of trial by jury is something the Court should take into account, but that and any apprehension that he will not receive a fair trial at the hands of a jury must be weighed. A mere stated apprehension without supporting evidence will not be enough. .... In weighing the concerns of the applicant the Court must have regard to any means available to allay them. The Court should also bear in mind that the interests of the accused are not necessarily the interests of justice. The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 at [7]. 11For the purpose of s 132(6) I am satisfied on the basis of the affidavit of his solicitor, Philip Stewart, sworn on 3rd April 2014, and read in support of the application that Mr McKnight has sought and received advice from Mr Brady of Counsel and Mr Stewart as to the effect of a trial by Judge order. Facts and circumstances of the present case 12The following facts are drawn from the statement of the Crown case: At about 12.50am on the morning of 25 March 2012, Stafford David Ray (the deceased; DOB 8 December 1960; 51) was sitting on the footpath, near the intersection of George Street and Campbell Street in Sydney. He was sitting with his back leaning against the wall of a shop. He was in the company of a woman called Sarah Mathieson. While Ray was sitting on the footpath, Michael McKnight (the accused; DOB 23 January 1985; 27) was walking by. The accused and Mathieson spoke for a few minutes. After that, the accused and Mathieson sat on the ground next to Ray. The accused sat on the right hand-side of Ray. A few moments later, the accused got up quickly. The accused then kicked Ray's head at least three times. The kicks were "full-force" kicks. (The assault was recorded by a CCTV camera.) Mathieson stood up and tried to prevent the accused from assaulting Ray. Mathieson fell, or was pushed to the ground by the accused. The accused ran away. The accused was pursued and caught by members of the public. At about 1.00am, police arrived at the scene and spoke to the RAY. RAY told them that he was kicked whilst he was sleeping. When asked if he wanted the accused charged he said "I don't know. I have lived on the streets for a long time and I am not like that. I don't want him chasing me down the street. I just have to think about it." The accused was arrested by police at the scene. The accused said that the deceased had taken his money. The accused was searched and when spoken to was slurring his speech and struggling to maintain his balance but did not smell of intoxicating liquor. Once his details were taken the accused was released from police custody. At about 1.10am, an ambulance arrived at the scene. About ten minutes later, Ray was taken to St Vincent's Hospital. After arriving at the hospital, Ray received some preliminary medical care. At about 3.45am, Ray left the hospital. Shortly before 3.00pm, Ray's body was located in Green Park (a short distance from St Vincent's Hospital). A post mortem examination revealed that Ray died from a subdural haemorrhage. On the 3 April 2012 the accused was re-arrested by detectives. He declined to be interviewed by police and was charged. Whilst at committal stage defence offered a plea to 'manslaughter' on the basis of 'no intent to cause grievous bodily harm' and 'substantial impairment'. That plea offer was not accepted by the crown. Issues at trial will be whether the accused had the intention to cause grievous bodily harm. The crown contends that intention is established by the CCTV footage of the attack which shows the accused forcefully kicking the deceased a number of times to the head. Another issue at trial will be one of substantial impairment. Dr Olav Nielssen examined the accused on behalf of the defence and opined that the accused was substantially impaired at the time. Dr Stephen Allnut examined the accused on behalf of the crown and concluded that the accused may have been substantially impaired at the time. (Original emphasis) 13From Mr Stewart's affidavit, I accept that Mr McKnight has a "strong preference to have a Judge alone trial". I also accept that Mr McKnight is concerned that he will not receive a trial free of prejudice by a jury because of the high level of media coverage, and comment, about street violence, particularly death from street violence where alcohol is involved. I accept Mr McKnight is genuinely concerned about whether a jury can ignore "that publicity when dealing with his matter". 14Mr McKnight has been examined by Dr Olav Nielssen at the request of his solicitors. The doctor's report of the 19th of February 2013 is Exhibit VDA. Dr Nielssen diagnosed Mr McKnight as suffering from chronic schizophrenia, now in remission. He also has substance dependence and abuse disorder, also in remission. Dr Stephen Allnutt, who examined Mr McKnight on behalf of the Crown, and whose report of 10th June 2013 is Exhibit VD1, appears, in general terms, to agree with these diagnoses. However, rather than in remission, Dr Allnutt says the psychotic condition "has now ameliorated". 15The experts part company on the question whether Mr McKnight's mental condition constituted an abnormality of the mind in the statutory sense, at the time of the commission of the offence. Obviously the accuracy of the opinion of each of them depends upon the reliability of the history received. However, Dr Nielssen is of the view that the schizophrenic illness is an underlying condition within the meaning of the Section "and at the time of the offence Mr McKnight was affected by an abnormality of mind arising from an exacerbation of his underlying condition brought about by not taking anti-psychotic medication". He considers that the defence of substantial impairment is "open". 16Dr Allnutt accepts that the accused was "vulnerable to having had an abnormality of mind at the material time of the alleged offence". Whether in fact he did is a question, in Dr Allnutt's view, that depends upon what view the tribunal of fact forms of the account given by Mr McKnight of the events surrounding his assault of Mr Ray. I infer that if that account is accepted, Dr Allnutt would accept that the accused laboured under a "substantial impairment" at the relevant time. At the same time Dr Allnutt points out that intoxication, and it is not in issue that Mr McKnight was affected by alcohol at the time, is "well known to contribute to disinhibition as well as reactive aggression". 17The review of Mr McKnight's medical history undertaken by Dr Allnutt refers to past hospitalisations for mental illness, commencing in May 2002. In February 2007, the history received on admission was that he was threatening to kill people and manifesting aggressive behaviour. His speech at that time was sexually charged. In March 2007, he was noted to be aggressive and sexually inappropriate when psychotic. Again, in May 2007 he was manifesting aggression. There seemed to be a correlation between his psychotic symptoms and cannabis use. He had been using cannabis since about the age of 14. Mr Brady argues that a jury hearing these matters may be prejudiced against Mr McKnight. Issues and argument 18In writing and orally, Mr Brady highlighted the following matters: (a)The interest of the administration of justice would be significantly enhanced by the provision of a reasoned decision. This was especially so when the defence case depended upon running two lines of argument which were strict alternatives. First, there was no actual intention to kill or seriously injure; and secondly, if there was, his capacity to form that intention was substantially impaired by his psychotic illness. Moreover, there were factual complexities. Alcohol consumed on the night of the killing will play a role in relation to the intention but needs to be ignored in relation to substantial impairment; (b)There are aspects of prejudice which may affect the reasoning process of the jury impermissibly. First, there is the past history of aggressive and sexually inappropriate behaviour which might cause the jury to dislike the accused. Secondly, given a need to prove facts relevant to his medical history it would inevitably come out that he has been receiving treatment from Justice Health in custody. Finally, the media spotlight on alcohol related violence in public places might lead the jury to pre-judge the issues in the case; (c)Whilst not decisive, a judge alone trial would be substantially more efficient, reducing the estimate from 2 to 3 weeks to 3 to 4 days (the latter not including the time necessary for a decision); (d)Whilst acknowledging that the second limb of s 23A(1) necessarily require the application of objective community standards, those factual issues do not require refusal of the application. No question of community standards informs a decision about Intention. It is a simple question of fact. Most, if not all, offences involved some element of intention. It could not be said that the determination of whether the accused had the necessary intention required the application of objective community standards, otherwise few, if any cases, would be suitable for determination by a judge alone. 19The Deputy Director of Public Prosecutions, with impeccable fairness and balance, acknowledged the force of points (b) and (c). He argued that in this case point (a) did not really arise. It is expected that the accused would plead guilty to the serious crime of manslaughter and therefore will inevitably face proceedings on sentence at which the sentencing judge would be under an obligation to provide reasons for finding the facts relevant to the sentencing task. By this means, a reasoned judgment will be produced. Senior counsel did not concede prejudice in relation to the accused's past medical history; quite the contrary, as his past aggression was explicable by reference to his mental illness, this evidence was favourable to him and a properly instructed jury would understand that. 20The Crown said that the current debate about alcohol related violence in public places raised legitimate concerns, but those concerns most likely could be addressed by proper instruction, direction and warning to the jury. 21Senior counsel agreed that the probable comparable efficiency dividend of a judge alone trial in this case would be very significant indeed. While such a consideration would rarely be decisive he argued it was entitled to some weight. 22The Crown's real opposition was that the determination of the substantial impairment defence was a jury question par excellence. Doubtless, the qualitative question of whether the accused's impairment was so substantial as to warrant liability for "murder being reduced to manslaughter " necessarily required a determination involving the application of objective community standards. The Deputy Director pointed out that the published Guidelines of the Director of Public Prosecutions proceeded on the basis that the application of community values was inherent in the second limb of s 23A. He argued that ordinarily such matters should be heard by a jury. Determination 23I am conscious that the argument on behalf of the accused invites me to take the grounds advanced together for the purpose of deciding whether a trial by judge order is in the interests of justice. I do not regard them as being put forward in the alternative. However, it is necessary to deal with them seriatim for each of them will only add strength to the whole argument if it has some weight on its own. 24I do not regard the "need for a reasoned judgment" argument as persuasive. Expert evidence will inform the determination of the substantial impairment question. However, the evidence is unlikely to be complex as both psychiatrists agree that the accused suffered from a pre-existing mental condition, not of a transitory kind. In truth, the decision on that issue will depend more on other matters. It will depend upon whether the accused persuades the jury, on the balance of probabilities, that he was actually acting under the influence of his pre-existing mental condition at the time he offended. It will also depend upon the evaluative question of whether that condition was "so substantial as to warrant liability for murder being reduced to manslaughter". As Mr Brady acknowledged, this is a question requiring the application of objective community values. One would expect that a jury would have no difficulty with these issues. 25I accept that the question of intention in this case raises no question about objective community standards. However the second limb of s 23A does. This factor favours, even strongly favours, trial by jury. 26I do not accept that the details of the accused's past medical history provides a basis for a justifiable apprehension of prejudice in prospective jurors. I accept the argument of the Deputy Director that, in truth, the objective facts about his past medical history favour the accused and that a jury will appreciate that those facts tend to prove that if his mental condition was operative at the time of the offending it may have made him violent or aggressive. 27Mr Brady is on stronger ground, as the Crown acknowledge, in saying that this is a case of alcohol related violence in a public street where the offending has been captured on CCTV footage; violence of this type may have been sensationalised by the conduct of what may be regarded as a media campaign agitating for change in laws and the public's attitude, notwithstanding that, statistically, violent crime rates seem to be falling, not rising. I think I can take judicial notice of these matters. 28In my judgment that the media campaign may have generated increased public interest favours trial by jury given the comments of Gleeson CJ in Swain v Waverley Municipal Council (2005) CLR 517. 29However that may be, sensationalisation by media is nothing new in the legal system. There always have been, and will be, topics and cases that excite public interest and debate, and this is a healthy thing. Public interest is fundamental to the principle of open justice. 30It should be noted that it is not said that any potential prejudice is at a level where pre-trial publicity about public violence raises any question about whether Mr McKnight can receive a fair trial from a jury. 31As Bellew J said in R v Sean Lee King [2013] NSWSC 448 "proceedings such as these will invariably attract ... publicity". At [55] - [60] his Honour pointed out that modern practises in jury trials make it routine for trial judges at the commencement of every trial "to direct the jury that they are prohibited from undertaking any research, or making any inquiry through the internet in relation to any aspect of the trial". These directions extend to researching, or inquiring about, the subject matter of the trial such as "alcohol fuelled violence". Moreover, the jury is routinely admonished to decide the case only on the basis of the evidence and arguments led and advanced in court. They are instructed to approach the decision making task calmly, rationally, and dispassionately in accordance with the oath or affirmation of each of them. Doubtless specific directions may need to be fashioned to the circumstances of the particular case in the light of the media campaign to which I have referred. But as Mason CJ and Toohey J said in R v Glennon (1992) 173 CLR 592 at 603: The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. Their Honours cited with approval the dictum of the Ontario Court of Appeal in R v Hubbert (1975) 29 C.C.C. (2D) 279 at page 291: In this era of rapid dissemination of news by the various media, it would be naïve to think that in a case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence. I emphasise that this apt observation was made in 1975, long before the advent of the World Wide Web. 32I am not persuaded that the publicity surrounding alcohol fuelled violence in general, and "single punch manslaughter" in particular, justifies the conclusion that it is in the interests of justice to grant the order sought. 33I do not think that the likely dividend in terms of saved time and cost in a judge alone trial is relevant in this case. With respect, the argument is an appeal to the "overall efficiencies in the operation of a court which may be available from a judge-alone trial": R v Belghar at [111]. As it was put in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, it is a universal characteristic that jury trials are "longer, and therefore more expensive, and procedurally more inflexible than trial by judge alone" (per Samuels JA at 412 - 413). It is however "not to the point to consider universal characteristics of jury trials," it is impermissible to take such matters into account (per Kirby P at 403, Samuels JA agreeing). This reasoning is applicable to s 132 as the provisions of the Criminal Procedure Act proceed on the assumption (not presumption) that trial by jury will continue to be the norm for indictable offences. 34In my view the interests of justice do not require trial by judge alone in this case. 35My orders are: (1)Grant leave to the accused to make application for a trial by judge order. (2)Application for trial by judge order refused. (3)Direct the accused to file and serve on the Crown a notice in accordance with the provisions of s151 Criminal Procedure Act 1986 within 14 days of the date hereof. (4)Direct that the Director of Public Prosecution by notice in writing indicate whether he seeks to call evidence to disprove the contention of substantial mental impairment before or after the evidence for the accused in accordance with s 151(3) Criminal Procedure Act 1986. (5)For the prevention of prejudice to the proper administration of justice the publication of these orders and my reasons for them is restricted under s 7 Court Suppression and Non Publication Orders Act 2010 (NSW) until the return of the jury's verdict in the trial, publication to the parties and their legal representatives excepted. ********** Amendments 13 May 2014 - The word "not" is inserted between the words "do" and "require" Amended paragraphs: 34 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: 13 May 2014