R v Kerry Forrest [2014] NSWSC 1684

Supreme Court New South Wales

Medium Neutral Citation: R v Kerry Forrest [2014] NSWSC 1684 Hearing dates: 10 March 2014 & 11 March 2014 Decision date: 12 March 2014 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Trial by judge alone ordered Catchwords: CRIMINAL LAW - application by accused for trial by judge alone - effect of accused's illness on the progress of the trial Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Belghar [2012] NSWCCA 86, 217 A Crim R 1 R v Dean [2013] NSWSC 661 R v Forrest [2013] NSWSC 527 R v King [2013] NSWSC 448 Category: Interlocutory applications Parties: Regina (Crown) Ms Kerry Forrest (Accused) Representation: Counsel: Mr C Patrick (Crown) Mr MG Ainsworth (Accused) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) SE O'Connor - Legal Aid Commission (Accused) File Number(s): 2011/49657

Judgment 1HIS HONOUR: The accused, Ms Forrest, seeks a trial by judge alone, to which the Crown prosecutor does not consent. The application is based upon the state of her health. The background to the matter, and the evidence concerning her health, is to be found in my judgment of 9 May 2013, refusing a permanent stay: R v Forrest [2013] NSWSC 527. 2There is no doubt that Ms Forrest is seriously ill. Mr Ainsworth, who is now her counsel, argues that the effects of her illness would cause her prejudice in the eyes of a jury and the practical effects of her condition would affect the progress of the trial in such a way as to impose an unreasonable burden upon a jury. 3I do not have up-to-date medical evidence due, as I understand it, to the limitation of legal aid funding. However, from the evidence summarised in my judgment last year one would not expect any improvement. What is at issue at present are the practical difficulties presented by Ms Forrest's condition in her attendance for trial. These have been explained in an informal manner, largely by Mr Ainsworth's submissions from the bar table. However, I am content to accept the material in that way, given that they have been based upon instructions and observations conveyed to him by his instructing solicitor, Ms Hearne, who has had extensive contact with Ms Forrest over a considerable period of time. 4As a result of her tumour and the treatment for it, Ms Forrest is prone to urinary and bowel discomfort. Her diet is limited, and after she has eaten it is necessary for her to go to the toilet, a process which might take half an hour or more. She is also prone to bleeding because she is on blood thinning medication and her tumour is near her bladder and her ureter. These are problems which she faces after breakfast but, more importantly, would also face after lunch at court. 5Lunch at court is provided by the Department of Corrective Services. It is sandwiches, which she cannot eat. She can eat soup, which the department would not provide but which could be obtained for her by her legal representatives. This is hardly a satisfactory situation but, I suppose, it is manageable. It would not solve the toileting problem. 6She needs a variety of medication, including for nausea, during the day but arrangements would be in place for her medication to be brought with her to court each day and be available to her as required. 7Her transport to court is a problem. She is in a wheelchair and vehicles which accommodate a wheelchair are available. However, in those vehicles she travels in the wheelchair with a lap seatbelt but this does not cushion her from the movement of the vehicle. Bouncing or bumping in the course of the journey affects her tumour, causing her pain and discomfort, so that she is likely to feel unwell upon her arrival. There appears to be no solution to this problem. She has sometimes travelled in a Tarago used by the prison hospital, where she is removed from the wheelchair and travels on a normal seat, which does cushion her from the vehicle's movement. However, that vehicle is not part of the Corrective Services' fleet and would not generally be available to transport her to and from court. 8In court she sits in a wheelchair, mostly with her head bowed, clearly looking unwell. I accept that she cannot remain in the courtroom for long periods and that regular breaks would be required. It may be, as Mr Ainsworth foreshadowed, that she may not be able to endure afternoon sessions. 9What emerges from all this is that the hours the court could sit during this trial are likely to vary from day to day, and there could not be a reliable estimate of the length of the trial. The present estimate is 4 to 5 weeks if more or less normal hours can be maintained, but that is unpredictable. 10Mr Ainsworth submitted that a jury would have difficulty coping with a "stop-start" progress of the trial. He expressed concern about how a jury might react to Ms Forrest's somewhat distressing appearance in court. He also argued that she might have difficulty in giving evidence, if she chose to take that course, for the reasons which I considered in my earlier judgment, noting that expert evidence might have to be called about that matter. The combination of these factors, he submitted, demonstrates that it is in the interests of justice that the trial proceed without a jury. 11The Crown prosecutor submitted that all these difficulties could be accommodated in a jury trial. The jury could be told that Ms Forrest has cancer, that that condition explains her appearance in court, and that because of that condition it would be necessary to take regular breaks and sit for shorter than the usual hours. It could also be explained that there might be unexpected interruptions to the progress of trial because of her illness. Far from being prejudiced against her by these matters, he argued, the jury would be likely to look upon her with sympathy. He added that these difficulties could be explained to the jury panel at the outset, so that they understood that a 4 to 5 week estimate might not be reliable, and any applications by prospective jurors to be excused for that reason could be dealt with. 12The Crown prosecutor questioned the foreshadowed difficulty of Ms Forrest giving evidence, as he had in the proceedings for a permanent stay. It is true, as I observed in my judgment at [38], that on that occasion she was able to give evidence well enough. However, it is fair to observe that that evidence was relatively brief and that giving evidence in the trial, in a circumstantial case of some complexity, would be a much more demanding task. 13It is not necessary to set out the relevant statutory provision, s 132 of the Criminal Procedure Act 1986, nor to refer to authorities on that provision and on like provisions in other jurisdictions. Section 132 was examined in some detail by McClellan CJ at CL, with whom Hislop J and I generally agreed, in R v Belghar [2012] NSWCCA 86, 217 A Crim R 1. 14However, the Crown prosecutor relied upon s 132(5) which, put shortly, provides that an application for trial by judge alone might be refused if the trial involves factual issues requiring assessment by objective community standards. This, he argued, is such a case. While it is a circumstantial case of what the Crown puts as premeditated murder, there are aspects of it calling for examination by the application of community standards. He referred to evidence of Ms Forrest's dishonesty and, in particular, to evidence of behaviour on her part around the time of the death of the deceased and after it pointing towards her guilt. Whether that behaviour might be seen as reasonable in the circumstances, and capable of an innocent explanation, would be a matter appropriately assessed, as he put it in written submissions, "by a jury of persons with an ordinary experience of life." He referred to the examination of this issue, albeit in a very different context, by Latham J in R v Dean [2013] NSWSC 661, noting her Honour's reference to the judgment of Bellew J in R v King [2013] NSWSC 448. 15I understand that argument, but this is not the occasion to examine the scope of subs (5) and I express no concluded view about it. Generally, the Crown prosecutor's submissions have force and I have not found this matter easy to determine. However, the deciding factor is the uncertain progress of the trial, the matter upon which Mr Ainsworth primarily relies. 16Certainly, Ms Forrest's state of health will require taking regular breaks and, very likely, sitting shorter hours. More importantly, her condition is likely to vary from day to day and the progress of proceedings each day may be unpredictable. There may be days when she is unable to attend court at all. Jurors would be asked to put aside their weekday routine for a number of weeks with no certainty about how much of each day, if at all, they would be required. In addition, the likely disruptions of the progress of the trial do make it very difficult to estimate how long it might last. All this, in my view, would place an unacceptable burden upon a jury in a trial which is difficult enough as it is. I am satisfied that it is in the interests of justice that Ms Forrest be tried by judge alone. 17The election for trial by judge alone was filed out of time. However, I grant leave for the application to proceed and direct that the trial be conducted without a jury.