Ali (a pseudonym) v The Queen - [2021] SASCA 142

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ALI (A PSEUDONYM) v THE QUEEN
[2021] SASCA 142
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
25 November 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
In 2017, the applicant pleaded guilty to two counts of aggravated indecent assault, one count of unlawful sexual intercourse, one count of indecent assault, two counts of breach of bail, one count of possess child pornography, one count of aggravated possess child pornography and one count of aggravated inducing a child to expose himself. The applicant was 17 years old at the time of the offending.
The applicant contends that he was sentenced on an erroneous factual basis because he was misdiagnosed with a narcissistic or psychopathic personality disorder, rather than an autism spectrum disorder and, as a result, the sentencing Judge erroneously ordered that the applicant be sentenced as an adult and registered and subject to reporting obligations under s 9(1)(b) of the Child Sex Offenders Registration Act 2006 (SA).
Held (per the Court), refusing permission to appeal and dismissing the appeal:
1.That a new diagnosis has been obtained following sentence does not demonstrate that the earlier diagnosis was wrong or that the later diagnosis could not have been obtained with reasonable diligence.
2.It is not reasonably arguable that this evidence, if admitted, would have an important influence on sentence. In circumstances where there is significant commonality between the different diagnoses, a new diagnosis does not put the applicant’s offending in a new light.

Child Sex Offenders Registration Act 2006 (SA) s 9(1)(b); Young Offenders Act 1993 (SA) s 29; Criminal Procedure Act 1921 (SA) s 166(c), referred to.
Queen v Dorning (1981) 27 SASR 481; Rodi v State of Western Australia (2018) 265 CLR 254; R v Smith (1987) 44 SASR 587, considered.

ALI (A PSEUDONYM) v THE QUEEN
[2021] SASCA 142
Court of Appeal – Criminal: Livesey P and David JA
The Court:
Introduction

This is an application for permission to appeal against a sentence imposed in May 2017 in the District Court following an order by the Senior Judge of the Youth Court that the applicant be dealt with as an adult.
In essence, the applicant says that he was sentenced on an erroneous factual basis because he was misdiagnosed with a narcissistic or psychopathic personality disorder rather than an autism spectrum disorder and, as a result, the sentencing Judge erroneously ordered that the applicant be sentenced as an adult and registered and subjected to reporting obligations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali (a pseudonym) v The Queen

Details

AGLC: Ali (a pseudonym) v The Queen [2021] SASCA 142
Case: [2021] SASCA 142
Decision Date: 25 November 2021

CaseChat Overview and Summary

This matter concerned an application by the applicant, Ali (a pseudonym), to lead fresh evidence on an appeal against sentence. The applicant had been sentenced in the District Court for offences including unlawful sexual intercourse and indecent assault. The appeal court was asked to consider whether new psychiatric and psychological reports, suggesting the applicant had an undiagnosed autism spectrum disorder, should be admitted as fresh evidence.

The central legal issue before the court was the admissibility of the fresh evidence. Specifically, the court had to determine if the proposed evidence met the three well-recognised preconditions for admitting fresh evidence on appeal: that it could not have been obtained with reasonable diligence for use at the original sentencing hearing, that it would probably have had an important influence on the result, and that it was apparently credible. The court also considered the purpose of leading fresh evidence on an appeal against sentence, which is to introduce facts existing at the time of sentencing that were unknown to the judge, or to re-contextualise known facts.

The court reasoned that while the new reports suggested an autism spectrum disorder, this did not automatically render the original diagnosis of a paraphilic disorder, narcissistic personality style, and psychopathic traits incorrect. The court found that the applicant had not demonstrated that the autism spectrum disorder could not have been obtained with reasonable diligence prior to sentencing. Furthermore, the court concluded that even if the autism spectrum disorder diagnosis had been before the sentencing judge, it was not reasonably arguable that this evidence would have had an important influence on the sentence imposed, particularly given the significant degree of commonality between autism spectrum disorder and narcissistic personality traits, and the applicant's apparent risk of reoffending identified by the original psychiatrist.

Consequently, the court determined that the proposed fresh evidence did not satisfy the criteria for admissibility. As no point of principle was raised and no ground of appeal was reasonably arguable, permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Following psychiatric examinations, Dr Marshall Watson, psychiatrist, diagnosed the applicant with a paraphilic disorder, a narcissistic personality style and concerning psychopathic personality traits. Although the applicant expressed regret and remorse, he tended to minimise his role. He had initiated inappropriate behaviour towards others in youth detention. He appeared to not understand the gravity or seriousness of his behaviour. This suggested that there were apparently poor prospects for rehabilitation.The application to lead “fresh evidence” The affidavit evidence and the psychological reports which are the subject of the application to lead fresh evidence suggest that the applicant has a previously undiagnosed and untreated autism spectrum disorder. Ms Morrell suggests that this was misinterpreted as narcissism and psychopathy. By s 166(c) of the Criminal Procedure Act 1921 (SA), this Court has power to receive further evidence if it is necessary or expedient in the interests of justice. The three preconditions to the admissibility of fresh evidence are well-recognised:[1]1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial or sentencing hearing.2. The evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive. There must be a significant possibility that the evidence might reasonably lead to a different decision.[2]3.The evidence must be apparently creditable.[1] Queen v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ).[2] Rodi v State of Western Australia (2018) 265 CLR 254, [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). It has also been said that the purpose of leading fresh evidence on an appeal against sentence is to put before the Court facts which were in existence at the time sentence was imposed but which were not known to the sentencing Judge, or to explain facts which were before the Judge so as to place them in a new light.[3][3] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).Disposition of the application It is noteworthy that the new psychological reports were prepared some years after sentencing in the District Court. In our view, the psychological reports, together with the affidavit evidence, cannot satisfy all the criteria for admissibility. That a new diagnosis has been obtained after sentence does not demonstrate that the earlier diagnosis is wrong or, that the later diagnosis could not have been obtained with reasonable diligence. Perhaps more importantly, it is not reasonably arguable that this evidence, if admitted, would probably have an important influence on sentence or that there is a significant possibility that the evidence might reasonably lead to a different decision. As Ms Morrell accepts, there is a significant degree of commonality between a narcissistic personality type and autism spectrum disorder. In her report dated 27 June 2021, she explained: The relationship between Autism Spectrum Disorders/pervasive developmental disorders and personality disorders is not completely clear, although both concepts imply lifelong impairment. Both ASD and Narcissistic Personality Disorder … are considered to be on a spectrum. Narcissism is a personality condition that ranges from mild to severe. In the most severe instances, the person demonstrates sociopathic tendencies or an antisocial personality, traits of which were ascribed to [the applicant]. Similarly, Autism also resides on a spectrum.

Decision

Reasons for decision

Because the report of Dr Watson explained that, longitudinally, the applicant presented a moderate to high risk of reoffending without treatment and supervision it is entirely unsurprising that the sentencing Judge thought it appropriate to make an order pursuant to s 9(1)(b) of the Child Offenders Registration Act 2006 (SA). It cannot be said, based on the further psychological material, that that risk was not apparent even had there been an autism spectrum disorder diagnosis before the sentencing Judge.Conclusion In our view, no point of principle is raised and neither proposed ground of appeal is reasonably arguable. Permission to appeal is refused.

Ratio Decidendi

Legal Principle Established

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