Supreme Court New South Wales Medium Neutral Citation: R v Trawin-Hadfield [2014] NSWSC 591 Hearing dates: 29 April 2014 Decision date: 29 April 2014 Jurisdiction: Common Law - Criminal Before: Price J Decision: 1. Leave is granted to make the application out of time. 2. The notice of motion is dismissed. Catchwords: Criminal law - Application for judge alone trial - Community standards Legislation Cited: Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Cases Cited: The Queen v Belghar [2012] NSWCCA 86 The Queen v Dean [2013] NSWSC 661 TWL v The Queen [2012] NSWCCA 57 Category: Interlocutory applications Parties: Crown Bradley Owen Trawin-Hadfield (Accused) Representation: Counsel: Mr P Leask (Crown) Mr P Givorshner (Accused) Solicitors: Ms A Holloway (Director of Public Prosecutions) Mr M Blair (Blair Criminal Lawyers) File Number(s): 2010/341642 EX TEMPORE Judgment 1HIS HONOUR: Bradley Owen Trawin-Hadfield, (the accused), applies for a trial by judge alone pursuant to s 132 of the Criminal Procedure Act 1986. As the accused's notice of motion was filed on 22 April 2014 and his trial was to commence today, the application requires the leave of the Court: s 132A(1) of the Criminal Procedure Act. The Crown does not oppose the grant of leave but opposes the application. 2The accused is indicted on the charge that he on 12 October 2010 at Mount Pritchard in the State of New South Wales did unlawfully kill Wallace Ruiz-Sanchez (the deceased). This is a charge of manslaughter to which the accused pleads not guilty. The Crown case 3The case against the accused is summarised in the Crown Case Statement. The deceased was shot dead on the front step of his home at Mount Pritchard. He died as a result of a single close range gunshot wound to the head. The Crown will seek to prove the gun discharged as a result of it being employed by Samuel Lockett to bludgeon the deceased on the head during an episode of unjustifiable violence. The Crown alleges that the deceased was a victim of a protracted assault that was carried out in a concerted manner and with the advantage of the force of numbers. 4It is the Crown case that the accused was one of five adult men who attacked the deceased. The Crown will allege that although the accused did not carry out the action that brought about the discharge of the shotgun to the deceased's head, the accused was a party to a joint criminal enterprise that resulted in the unlawful killing of the deceased. The Crown alleges that Samuel Lockett was also a party to the joint criminal enterprise. 5The case against the accused is founded upon the principles of joint criminal enterprise manslaughter by unlawful and dangerous act. The Crown will also allege that the accused was an aider and abettor in the commission of the crime by Lockett. Issues at trial 6The accused denies he was a party to a joint criminal enterprise. He further asserts that as a result of a combination of cognitive and intellectual deficits, he both lacked the capacity for and/or did not at any relevant time have the foresight necessary to attract criminal liability for manslaughter. 7The accused takes issue with some of the evidence of the Crown witnesses, Ms Knaggs and Ms Riddell. He denies that he joined in the attack as alleged. The accused asserts he was not party to the initial assault upon the deceased and joined it only when he perceived that Lockett had been placed in a headlock by the deceased. He then struck the deceased twice in an attempt to free Lockett from the headlock. The accused asserts that his actions at the relevant time were done in the lawful defence of Lockett. Grounds for the application 8The accused in written submissions contends that evidence of the events leading up to the movement of the five people from Jasmine Psaroudis' home to the home of the deceased relies almost entirely on the ERISP given by the accused following his arrest. Furthermore, the best evidence of the events on and in the vicinity of the verandah of the deceased's home leading up to the fatal shooting is contained in the accused's ERISP. 9The defence case is said to rely essentially on expert evidence; the evidence of a forensic psychologist, Kathryn Wakely and Dr Giuffrida, a psychiatrist. It is also anticipated that the accused will give evidence. Mr Givorshner, who appears for the accused, told the court that the accused will give evidence of self-induced intoxication. 10The accused points out that in a report dated 6 May 2013, Dr Giuffrida expresses his belief in the accused's lack of capacity to have the foresight necessary to attract liability for manslaughter. The accused contends that the real difficulty for a jury will be dealing with differing and contradictory instructions concerning the importance of drug and alcohol consumption of a transient kind which was consumed by the accused on the day before and the day of the fatal shooting which they will be directed to disregard pursuant to s 428D of the Crimes Act 1900. However, they will be required to consider the permanent defects he has which are, in part at least, a consequence of a history of substance abuse. 11In relation to the claim by the accused that he was acting in the lawful defence of another, the accused submits that a jury would be told that they are to consider his consumption of alcohol and/or drugs in relation to the accused's perception of the need to take action in the exercise of that right, but would then be instructed to disregard it again in weighing the proportionality of the accused's response. The accused contends that the exercise of taking into account his drug and alcohol consumption for some purposes, but disregarding it for other purposes, is profoundly difficult and foreign to ordinary people but routine for judges. It is contended that this task will be even more difficult given they are also required to consider an accused "with a raft of significant intellectual deficits and his capacity for foresight" (AWS p3). The accused argues that "the exercise is fraught with the risk of distraction and misapplication of the proper principles such that it is in the interests of justice to leave those tasks to a judge" (AWS p3). 12Another submission is that as a result of the accused's cognitive difficulties, his evidence would be difficult to elicit. It will be slow, punctuated by long pauses and concerns about the extent to which he understands what is being put to him. It was said that the accused is difficult to understand when he speaks, slurring his words, often to the point where he is incomprehensible. 13During oral submissions this morning, Mr Givorshner referred to "a combination of highly complex directions", particularly as to the mens rea required on the part of the accused. Mr Givorshner submits that this is a case that requires reasons from a judge rather than a verdict from a jury. 14Before venturing further, it is convenient to refer to Dr Giuffrida's report dated 6 May 2013. Dr Giuffrida expresses the opinion that the accused has an impaired cognitive capacity. He opines it is likely the accused has an underlying structural brain damage due to unknown causes. Dr Giuffrida refers to the accused's epilepsy and lengthy history of serious hazardous alcohol and cannabis dependence which in more recent years has been complicated by an escalating pattern of stimulant abuse. Dr Giuffrida opines that the effect of long-term abuse of those substances leads to likely permanent cognitive impairment. Dr Giuffrida considers that even if the temporary effects of alcohol and other drugs are excluded, the accused would not have had the capacity to appreciate that an act will be committed that exposed the deceased to an appreciable risk of serious injury. Consideration 15Section 132 of the Criminal Procedure Act relevantly is as follows: "(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. ..." 16The overriding principle in determining the application is whether it is in the interests of justice to grant it. There is no onus other than evidentiary upon the accused to justify the grant of a judge alone trial: The Queen v Belghar [2012] NSWCCA 86; The Queen v Dean [2013] NSWSC 661. 17Where the Court considers that the trial will involve factual issues that require the application of objective community standards, including but not limited to an issue of reasonableness, negligence, indecency, obscenity or dangerousness, the Court may refuse to make an order. As was said in Belghar by McClellan CJ at CL [100]: "Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable in the interests of justice that there should be trial by jury, however, where, as in the present case, the trial will not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor." 18In the accused's trial there will be two factual issues that require the application of objective community standards. The first concerns an issue of reasonableness. It is the accused's case that he joined in the assault upon the deceased when he perceived that Lockett had been placed in a headlock by the deceased. He then struck the deceased twice in an attempt to free Lockett. 19Should defence of another be raised in evidence at trial, the Crown bears the onus of establishing beyond reasonable doubt that the accused was not acting in Lockett's defence. The Crown may do this by proving beyond reasonable doubt either: 1. That the accused did not believe at the time he struck the deceased it was necessary to do what he did in order to defend Lockett; or, 2. The striking of the deceased by the accused was not a reasonable response in the circumstances the accused perceived them to be. In determining whether what the accused did was reasonable, a jury would be instructed to stand back and consider the response from an objective viewpoint. 20The second factual issue that requires the application of objective community standards concerns an issue of dangerousness. It is the Crown's case that Lockett struck the deceased on the head with a gun which caused his death and that deliberate act was unlawful and dangerous. 21The determination of dangerousness is objective. An act is dangerous if it is such that a reasonable person in the position of Lockett would have realised that by striking the deceased on the head with a gun, the deceased was being exposed to an appreciable risk of serious injury. 22Although in the accused's trial the application of community standards will be required to resolve these issues, the Court is not obliged to reject the application for a judge alone trial. The interests of justice depend upon the circumstances of the case including the complexity of the issues at trial. However, the presence of that factor necessarily supports a jury trial as community standards of reasonableness and dangerousness are best decided by a jury of 12 than by a judge alone. 23One of the accused's concerns is that a jury would have difficulty dealing with evidence of the accused's drug and alcohol consumption when considering the issue of the accused's defence of Lockett. Intoxication is not infrequently raised in connection with self-defence and defence of another. Relevantly, the effects of the long term alcohol and drug dependence on the accused's brain and his consumption of alcohol and drugs on the day before and the day of the deceased's death, must be taken into account: 1. In determining whether the accused believed that his conduct was necessary to defend Lockett, and 2. In determining the circumstances as the accused perceived them to be. 24However, evidence of the accused self-induced intoxication is not to be taken into account in determining whether the accused's response to those circumstances was reasonable. A jury would be instructed that they are to consider what would have been a reasonable response by a sober person in the circumstances as the accused drunkenly perceived them. 25Juries have for many years been required to deal with issues arising from self-induced intoxication by alcohol and drugs and clear directions have been crafted to ensure that the jury understands its task. I do not consider that there is a real risk that the jury will not follow the Court's directions on defence of another or misapply them. 26Another matter that the accused raises is that a jury will experience difficulties in following the Court's directions in respect of the first essential legal element of joint criminal enterprise manslaughter by an unlawful and dangerous act. It was submitted that a jury would be directed that they cannot take into account evidence of the accused's intoxication at the time of the alleged offence but would be obliged to consider evidence of his impaired cognitive capacity, which at least in part is a consequence of his long term drug and alcohol abuse. It is submitted that these are contradictory directions, which a jury will find hard to apply. 27The first essential legal element that the Crown must establish beyond reasonable doubt is that the accused was party to a joint criminal enterprise, (an agreement) to assault the deceased, that is to apply physical force to the deceased's body without his consent and the accused understood that by the application of that physical force the deceased would be exposed to an appreciable risk of serious injury: TWL v The Queen [2012] NSWCCA 57 at [36]. 28Section 428D of the Crimes Act prohibits evidence of the accused's self-induced intoxication at the time of the offence being taken into account in determining whether the accused was a party to the agreement and whether he understood that by the application of that physical force the deceased would be exposed to an appreciable risk of serious injury. However, evidence of his impaired cognitive capacity and long term drug and alcohol abuse may be taken into account. 29As I have previously stated, juries have dealt with issues arising from self-induced intoxication for many years and I do not consider that a jury will have difficulty following the Court's directions on the first essential legal element that the Crown must prove. 30Another concern was that as a result of the accused's cognitive difficulties his evidence will be difficult to elicit and for the jury to understand. I have had the benefit of seeing and hearing the accused in the witness box when he gave evidence before me during the proceedings on sentence. I did not have any difficulty understanding the evidence given by the accused. I do not consider that a jury will not be able to understand his evidence. 31For these reasons I do not propose to make a trial by judge alone order as I do not consider it is in the interests of justice to do so. 32Accordingly, I make the following orders. 1. Leave is granted to make the application out of time. 2. The notice of motion is dismissed. ********** 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: 15 May 2014