Supreme Court New South Wales Medium Neutral Citation: R v Gokhan Eyuboglu [2019] NSWSC 181 Hearing dates: 21 February 2019 Decision date: 21 February 2019 Jurisdiction: Common Law - Criminal Before: Button J Decision: Trial to proceed by judge alone. Catchwords: CRIMINAL LAW – murder – application by accused for trial by judge alone – consent of Crown – requirement for leave due to lateness of application – leave not opposed by Crown – foreshadowed defences of mental illness and substantial impairment – whether concern about appropriateness of trial by judge alone could inform question of refusal of leave – leave granted, application granted, order for trial by judge alone made Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 132(2), 132A(1) Crimes Act 1900 (NSW), s 23A Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513 R v M'Naghten (1843) 8 ER Rep 718 R v Hadler [2018] NSWSC 1151 AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 R v Stanley [2013] NSWCCA 124 at [61] Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Category: Procedural and other rulings Parties: Regina (Crown) Gokhan Eyuboglu (Accused) Representation: Counsel: Craig Everson (Crown) Tony Evers (Accused) Solicitors: Director of Public Prosecutions (Crown) McGirr Lawyers (Accused) File Number(s): 2017/329217 Publication restriction: Nil EX TEMPORE JUDGMENT – REVISED Introduction 1. This application for a trial by judge alone, on an indictment containing a single count of murder, raises the question of the interaction between, on the one hand, the requirement for leave (if the application is not made earlier than 28 days before the trial date) in s 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act), and, on the other hand, the fact that, if the Crown and the accused are agreed in the affirmative in the substantive question, then it is incumbent upon me to make the order, pursuant to s 132(2) of the Act. 2. In particular, it raises the question of whether leave could be refused – even when leave is not opposed by the Crown – if the trial judge is concerned about the appropriateness of trial by judge alone, particularly when the determination of the matter will call for an explicit application of community standards. Background 1. The background of the matter is as follows. 2. The murder is alleged to have occurred on 29 August 2017. 3. The accused was charged on 31 October 2017. 4. He was committed for trial on 19 April 2018. 5. The matter came before Johnson J in this Court on 4 May 2018 for arraignment. On that occasion, the solicitor then appearing for the accused informed his Honour that the sole issue in the trial would be self defence. 6. On that occasion, his Honour set the matter down for trial on 4 March 2019. 7. In due course, the matter was assigned to me. On 25 October 2018, my associate emailed the parties, informing them that I would be the trial judge, and foreshadowing a directions hearing. 8. In other words, in accordance with usual procedure in the Supreme Court, for many months before the trial date, the parties were aware of the identity of the trial judge. And they were also well aware of it for months before the requirement for leave, commenced to apply on 4 February 2019. 9. As it happened, the directions hearing was conducted three days before that date, and one working day before that date, on 1 February 2019. 10. As the transcript of the hearing shows, by that stage the foreshadowed issues in the trial had changed: they had become the special verdict of not guilty on the ground of mental illness, and in the alternative, the partial defence of substantial impairment reducing murder to manslaughter. 11. It is well known that the latter defence includes an application of community standards, in the sense of whether any demonstrated impairment is so substantial as to warrant liability for murder being reduced to manslaughter: s 23A of the Crimes Act 1900 (NSW). 12. To the extent that the special verdict often calls for consideration whether the accused appreciated that his or her acts were morally wrong, it could also be said perhaps that that calls for application of community standards as well: s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW); R v M'Naghten (1843) 8 ER Rep 718. 13. At the directions hearing, I raised the question of whether there might be an application for a trial by judge alone, making it clear that I was doing so merely for logistical planning purposes, and without contending for that course in the slightest. Defence counsel indicated that he had not discussed it with his client, but would do so. 14. The Crown prosecutor indicated that, if there were such an application, he would consent to it, and explained that that was on the basis that proof of either of the defences on the balance of probabilities would inevitably place prejudicial material before the tribunal of fact. 15. At the conclusion of the directions hearing, he also indicated that, if leave were required as a matter of timing, he would not oppose it. 16. The accused signed the necessary application on 9 February 2019. 17. It was served upon the Crown prosecutor on 12 February 2019, and he formally consented to on 13 February 2019. 18. By way of notice of motion dated 19 February 2019, the matter was listed before me today, 21 February 2019. 19. To complete this thumbnail sketch, I was told today from the Bar table that the experts qualified by both parties are agreed that the accused, at least at the time of the alleged offence, suffered from a disease of the mind that caused a defect of reason; namely, schizophrenia. Having said that, each of the defences foreshadowed will, it seems, be resisted by the Crown. Consideration 1. In a nutshell, the conundrum that arises here is whether a concern on my part about the appropriateness of the defences – and in particular substantial impairment – being determined by a judge and not a jury could lead me to refuse leave, even in the face of the Crown not opposing leave, and the parties being ad idem about the mode of trial. 2. Without firmly ruling out such an approach in any case that could come before this Court, I do not think that I should do so here, for the following reasons. 3. First, the structure of the statute – leaving aside for a moment the question of leave – is that, once the parties are agreed in the mode of trial by judge alone, whatever the trial judge may think of its appropriateness, he or she is, to use the words of Hamill J "stuck with it": R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513 at [9]. 4. Secondly, I think of the two questions – whether there should be a judge alone trial, and whether there should be leave to bring an application – as conceptually separate. I do not believe that it was the intention of Parliament – except perhaps in most unusual circumstances – that the answer to the latter question should be permitted to override the unanimity of the parties with regard to the former question. 5. Thirdly, there is ample authority for the proposition that members of the community in the form of a jury should apply community standards: R v Hadler [2018] NSWSC 1151 at [60] (substantial impairment); R v Stanley [2013] NSWCCA 124 at [61] (formation of intent – although it is contestable whether that is an application of community standards or a determination of a question of fact); AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [95] ("threatening, abusive or insulting" behaviour; dishonesty; and indecency); and Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7] (general proposition). But that rule is not an absolute one, and one can point to hundreds of examples of trials in which such standards were applied by judges, and of course magistrates determine such matters daily. Indeed, in a sense, whether one is satisfied of proof of an offence beyond reasonable doubt could itself perhaps be characterised as something of a community standard. 6. Fourthly and finally, it has often been the position of the Crown to oppose applications for trial by judge alone by an accused person on the basis that the community should impose its own standards. When a considered position is taken not to do so, I think that one should be slow to "second-guess" such a position. 7. In short, I do not believe it is my role to use the requirement for leave in order to give effect to my concern about members of the community not imposing the community standard that is central to the defence of substantial impairment. Grant leave? 1. Turning now to the question of leave itself, a number of matters strongly argue in favour of it being granted. 2. First, that leave is not opposed by the Crown. 3. Secondly, the option of trial by judge alone was raised as a distinct possibility by defence counsel at the directions hearing on 1 February 2019; that is, three days before the requirement for leave commenced. 4. Thirdly, there can be no suggestion of the need to obviate "judge shopping" in this case. That is not only because the Crown prosecutor does not allege that that is what is occurring. It is also because for months – that is, between 25 October 2018 and 4 February 2019 – the defence team was well aware of the identity of the trial judge, and could have sought trial by judge alone without an application for leave. 5. Fourthly, it seems clear that the defence understanding of the real issues in the trial has developed over the past many months; that is not an uncommon occurrence, but it means that the view now taken by the defence team of the appropriate mode of trial may not have been taken before. 6. Fifthly, it can be seen that the application for trial by judge alone was signed by the accused on 9 February 2019; in other words, it was not made on the morning of trial or a day or two before, with inevitable logistical disruption to the business of the Court. 7. Sixthly and finally, in light of the joint position that the accused has suffered from the chronic and serious mental illness of schizophrenia, I think I am entitled to infer that obtaining settled instructions from him has not been without difficulty. Conclusion 1. In all the circumstances, I think that the necessary leave to bring the application should be granted, with the result that, in light of the unanimity of the parties, the statute mandates that I must order that this trial proceed by judge alone. Order 1. I make the following order: 1. The trial of R v Eyuboglu, listed to commence on 4 March 2019, is to proceed by way of judge alone before me. ********** 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: 01 March 2019