CJ v Regina
[2012] NSWCCA 258
•14 December 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: CJ v Regina [2012] NSWCCA 258 Hearing dates: 24 July 2012 Decision date: 14 December 2012 Before: Beazley JA at [1]
Hall J at [2]
S Campbell J at [100]Decision: Order that the period for which the appellant's notice of intention to appeal has effect is extended to 19 December 2011 and that the following orders made by the Court on 24 July 2012 be confirmed.
(1) Appeal allowed.
(2) Convictions quashed.
(3) The matter be remitted to the District
Court for retrial.
Catchwords: CRIMINAL LAW - appeal against conviction and sentence - in judge-alone trial appellant convicted of 21 charges where the appellant raised at trial a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 - trial judge determined that defence of mental illness not established - whether trial judge failed to consider expert evidence - failure to take into account expert evidence called for the appellant on the issue as to the appellant's capacity to appreciate the wrongfulness of her actions - acceptance of expert evidence in Crown case without an analysis and evaluation of conflicting medical opinion evidence adduced in the defence case - obligation on the trial judge to analyse all relevant expert opinion evidence and identify the basis for preferring one expert witness over another - obligation of trial judge to provide reasons in preferring one expert witness over another - whether trial judge erred in not finding that the appellant was suffering from a mental illness at the time of the commission of the offences which gave rise to a defence of mental illness - error established in the trial judge's omission to evaluate the totality of the relevant medical evidence and in failure to take into account and analyse conflicting expert evidence and to identify the basis for accepting the Crown's expert witness and not accept the evidence called in the defence case - proceedings remitted to District Court for retrial. Legislation Cited: Crimes Act 1900
Mental Health (Forensic Provisions) Act 1990Cases Cited: Alchin v Daley [2009] NSWCA 418
Attorney-General for South Australia v Brown (1960) AC 432
Beale v Government Insurance Office (1997) 48 NSWLR 430
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Mizzi v R [1960] HCA 77; 105 CLR 659
R v M'Naghten (1843) 8 ER 718
R v Porter [1933] HCA 1; 55 CLR 182
R v Pratt [2009] NSWSC 1108
Sodeman v The King (1936) 55 CLR 192
Stapleton v The Queen [1952] HCA 56; 86 CLR 358
Willgoss v R (1960) 105 CLR 295Category: Principal judgment Parties: CJ (Appellant)
Regina (Respondent)Representation: Counsel:
Mr G Turnbull SC (Appellant)
Mr R Herps of counsel (Crown)
Solicitors:Baker & Borthwick (Appellant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2010/17430, 2010/17810 Publication restriction: Names of appellant and all victims are suppressed and represented by initials Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2010-12-10 00:00:00
- Before:
- Garling DCJ
- File Number(s):
- 2010/17430, 2010/17810
Judgment
BEAZLEY JA: I agree with Hall J.
HALL J: By a judgment of the District Court given on 24 March 2011 in a judge-alone trial, the appellant was convicted of 21 charges on an indictment, particulars of which are set out below.
She was sentenced to a total effective term of imprisonment of 8 years with a non-parole period of 5 years.
On 11 April 2011 a Notice of Intention to Appeal was filed in respect of the judgment. The Notice lapsed on 11 October 2011.
By application for an extension of time dated 16 December 2011, filed on 19 December 2011, the appellant applied for an extension of time within which to appeal. The grounds for the extension were set out in the affidavit of Christopher John Watson, barrister, sworn on 19 December 2011.
In the circumstances, including the fact that the Crown did not oppose the application for an extension of time, the hearing of the appeal proceeded on the basis that the extension sought by the appellant should be granted.
Appellable error established
At the hearing of the appeal on 24 July 2012, the submissions on the issues arising from the two grounds of appeal in due course focussed upon a failure by the trial judge to consider parts of the expert medical evidence adduced in the defence case at trial. In particular, the evidence of Dr Nielssen (consultant forensic psychiatrist, retained by the appellant) was relevant to findings of fact made by the trial judge which findings were central to his Honour's determination that the appellant had failed to establish the defence of mental illness.
The Crown, in my respectful opinion, towards the end of submissions fairly and properly conceded that error had been established based upon the trial judge's omission to evaluate the totality of the relevant medical evidence. In those circumstances, the Crown conceded that the appropriate course was for the proceedings to be remitted back to the District Court and a new trial date set.
Orders
On 24 July 2012 this Court made orders in the following terms:
(1) Appeal allowed.
(2) Convictions quashed.
(3) The matter be remitted to the District court for retrial.
(4) The Court to give reasons at a later date.
(5) The matter to be relisted before the Court of Criminal Appeal on Thursday 26 July for the purposes of the hearing of a bail application, if made.
In accordance with Order (4) this judgment sets out the reasons for the Court's abovementioned orders.
Counts in the indictment
The counts on the indictment are reproduced below:
Count 1: Between 29 January 2009 and 8 April 2009 at Moss Vale in the State of New South Wales committed an act of indecency with JP, a person then under the age of 16 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 61O(1) of the Crimes Act 1900, ("the Act"));
Count 2: On 20 March 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JP, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 3: On 21 March 2009 at Moss Vale in the State of New South Wales committed an act of indecency with FD, a person then under the age of 16 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 61O(1) of the Act);
Count 4: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JP, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 5: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with TS, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 6: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with OL, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 7: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JM, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 8: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JP, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 9: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with AC, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 10: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with FD, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 11: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with FD, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 12: On 17 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with AC, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 13: Between 1 February 2009 and 30 June 2009 at Moss Vale in the State of New South Wales had sexual intercourse with OL, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 14: Between 1 February 2009 and 30 June 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JP, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 15: Between 1 February 2009 and 30 June 2009 at Moss Vale in the State of New South Wales had sexual intercourse with TS, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 16: On 29 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with OL, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 17: On 31 May 2009 at Moss Vale in the State of New South Wales had sexual intercourse with OL, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 18: On 28 June 2009 at Moss Vale in the State of New South Wales committed an act of indecency with AC, a person then under the age of 16 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 61O(1) of the Act);
Count 19: Between 21 March 2009 and 27 June 2009 at Moss Vale in the State of New South Wales had sexual intercourse with FD, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act);
Count 20: Between 21 March 2009 and 27 June 2009 at Moss Vale in the State of New South Wales had sexual intercourse with AC, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act); and
Count 21: Between 2 January 2009 and 2 July 2009 at Moss Vale in the State of New South Wales had sexual intercourse with JM, a person then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely that he was under the authority of CJ (s 66C(2) of the Act).
The Crown case
The Crown case was that at all material times the appellant worked at a primary school for boys and that she, from May 2007, was employed at the school as a weekend "housemother".
The Crown alleged that whilst employed in 2009 the appellant committed the abovementioned offences against a number of complainants who were then Year 6 students.
The Crown observed in its written submissions that the occurrence of the various incidents was not in issue and that the central issue was whether the appellant had available the defence of mental illness.
The defence of mental illness
Section 38(1) of the Mental Health (Forensic Provisions) Act 1990 ("the Mental Health Act") provides as follows:
"38 Special verdict
(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness."
The expression "mental illness" is not defined by the provisions of the Mental Health Act and accordingly is determined in accordance with the rules enunciated in R v M'Naghten (1843) 8 ER 718 (those rules are described below).
The onus was upon the appellant to establish the defence of mental illness on the balance of probabilities. The trial judge made a finding that the appellant at the time of the alleged offences suffered from a mental illness, namely, Bipolar I Disorder. However, the trial judge also made a finding that the appellant, as at the time of the alleged offending, knew that her various acts were both legally and morally wrong: Judgment dated 10 December 2010 at page 33.
Consequentially it was determined that the defence of mental illness had not been established
Evidence at the trial
Reports and oral evidence were provided by the following witnesses:
(a) Dr Richardson (the appellant's treating psychiatrist);
(b) Professor Greenberg (forensic psychiatrist - retained by the Crown);
(c) Michelle Player (clinical psychologist); and
(d) Dr Nielssen (consultant forensic psychiatrist - retained by the appellant).
The Crown tendered a brief of evidence in one folder that became Exhibit A. The folder contained psychiatric reports relied on both by the Crown and the appellant. Another folder, Exhibit B, contained transcripts of interviews with the complainants as well as statements from other witnesses and other documents.
An eleven page "Statement of Alleged Facts" became Exhibit C in the proceedings. That statement contained the factual matters in relation to each of the offences charged.
Grounds of Appeal
In the conviction appeal, the appellant relied upon the following grounds:
Ground 1(a): In determining the central issue of whether or not the appellant was suffering from a mental illness at the time of the commission of the offences giving rise to a defence of mental illness, his Honour failed to consider a vast amount of material admitted into evidence relevant to this issue.
Ground 1(b): Upon proper consideration of all relevant evidence, the verdicts of guilty were unreasonable in that his Honour erred in not finding that the appellant was suffering from a mental illness at the time of the commission of the offences which gave rise to a defence of mental illness.
Appellant's Submissions
Ground 1(a)
It was submitted that the trial judge's consideration of the factual material was limited to the Statement of Alleged Facts and the material that emerged out of the histories provided to various practitioners by the appellant. It was submitted that his Honour did not have regard to the material forming Exhibit B. The contents of that exhibit, it was argued, were of real significance in providing the factual basis for the expert opinions.
Furthermore, it was contended that the evidence as a whole was highly relevant to the consideration of the defence and that a failure to consider all of the evidence gave rise to an error of law amounting to a substantial miscarriage of justice. The submissions were supported by reference to the decision of the High Court in Cesan v the Queen [2008] HCA 52; 236 CLR 358, in particular that of French CJ at [71]-[74].
The issue as to the claimed failure by the trial judge to consider relevant evidence is taken up in the discussion below concerning Ground 1(b). In that context the failure to take into account some of the evidence given by Dr Nielssen on relevant matters overlaps the issues arising in respect of Ground 1(b).
As to the evidence on factual matters the transcript records exchanges between the trial judge and counsel for the accused as to the Statement of Alleged Facts and whether that Statement was to be taken as setting out the agreed facts for the purposes of the trial. It is sufficient to state that a reading of the transcript establishes that the accused's counsel accepted and proceeded upon the basis that the abovementioned Statement set out for the purposes of the trial the primary facts surrounding and constituting the alleged offences.
To the extent that Ground 1(a) may suggest that the trial judge was required to treat the Statement as other than an Agreed Statement of Facts and required him to establish relevant primary facts from the material from which the Statement was derived, I do not regard Ground 1(a) as raising a valid or proper ground of appeal.
Ground 1(b)
This ground raises for consideration the issue as to whether the trial judge erred in law in failing to have regard to relevant evidence including, in particular, the evidence relevant to the issue as to whether or not the appellant had established, on the balance of probabilities, that she did not know that what she had done was wrong.
In support of this ground of appeal a number of matters were relied upon in the appellant's submissions, including the following:
(i) It was contended that his Honour erred in his understanding and analysis of the evidence of Dr Richardson. His Honour made a finding to the effect that Dr Richardson expressed the opinion that the appellant knew what she was doing was wrong but that she was unable to control herself. In accordance with the principle stated in Willgoss v R (1960) 105 CLR 295, his Honour then proceeded to determine that in those circumstances the defence of mental illness was not made out: Appellant's Written Submissions at [55].
(ii) Contrary to the trial judge's statement as to what opinion was expressed by Dr Richardson, it was submitted that, as expressed in his reports and in oral evidence, he had in fact stated that the appellant did not know that what she was doing was wrong "in any real sense" or "at all": Appellant's Written Submissions at [56].
(iii) When the "ultimate opinion" of Dr Richardson was properly understood, it was submitted that the conclusion reached by the trial judge was not open and that his Honour ought to in fact have found, by a proper application of the principles of Willgoss and Sodeman v The King (1936) 55 CLR 192, that the appellant did not know that what she was doing was wrong: Appellant's Written Submissions at [57].
It was submitted that the trial judge also erred in relation to the evidence of Dr Nielssen. In that regard the following matters were relied upon:
(i) Dr Nielssen's opinion was that the appellant did not know that what she was doing was morally wrong. On that basis the defence of mental illness was available to the appellant.
(ii) Both Dr Nielssen and Dr Richardson were of the opinion that the appellant had been in a manic state at the time of the alleged offending. In addition there was some evidence that she may have suffered from "irresistible impulses" so as to not know that what she was doing was wrong at all: Appellant's Written Submissions at [64].
(iii) The failure by the trial judge to provide any reasons or adequate reasons as to why he did not accept the medical evidence in the defence case, which it was submitted was capable of establishing the appellant as being in a manic state at the time of the commission of the offences, so as not to know that what she was doing was wrong.
(iv) Although the trial judge rejected Professor Greenberg's opinion to the effect that the appellant had not suffered from a Bipolar Disorder Type 1 disease (or any disease of the mind), the trial judge notwithstanding, proceeded to accept Professor Greenberg on the question as to whether or not the appellant knew that what she was doing at the time of the offences was wrong.
(v) Professor Greenberg had effectively linked the absence of a mental condition, such as a Bipolar Disorder Type 1, with his opinion that the appellant did not suffer from a defect of reason. This fact necessarily reduced the weight to be accorded to Professor Greenberg's opinion on the critical issue upon which the issue of mental illness turned, particularly so in light of the trial judge's affirmative finding that the appellant did in fact suffer from such a disorder at the time of the alleged offending.
Crown's submissions
Ground 1(a)
The Crown's contention was that the trial judge had taken particular steps to ensure that the parties accepted that the Statement of Agreed Facts was in fact an agreement as to the underlying facts, including those relevant to the mental illness defence.
The Crown rejected criticism of an alleged failure by the trial judge in not taking into account factual circumstances beyond those agreed.
In its submissions, the Crown emphasised that there was no dispute concerning the happening of the events, the relevant dates and the type of conduct engaged in or the place where the incidents occurred. As the not guilty plea had been entered on the basis of the claimed mental illness, it was submitted that it was not necessary for his Honour to have made further reference to the contents of Exhibit B.
Accordingly it was submitted that in the circumstances in which the trial was conducted, the trial judge was able to proceed on the basis that the Statement of Alleged Facts had been accepted for the purpose of the trial as a statement of agreed facts and that his Honour then correctly proceeded to turn his attention to the real facts at issue, namely, whether or not the appellant was entitled to a special verdict.
Ground 1(b)
As the Crown observed, the defence had to establish, on the balance of probabilities, that the appellant was, at the time of the commission of each and every act:
(a) Labouring under a defect of reason caused by a disease of the mind.
(b) With the consequence that the appellant did not know the nature and quality of her acts, or
(c) If she did know, she did not know that it was wrong.
The Crown observed that it was never in contest that she knew the nature and quality of her acts and that the issue of mental illness was to be resolved by reference to the four expert witnesses called at trial.
In relation to issue (c) (as set out above) the Crown made a number of submissions including the following:
(i) There was no evidence that the appellant exhibited, other than at the time of the acts constituting the alleged offences, symptoms indicative of Bipolar Disorder.
(ii) The "concession" made by the appellant's counsel, namely "...there is certainly nothing in the brief of the boys saying anything about the accused appearing to be odd or anything like that. There is nothing of that.": Crown's Written Submissions at [19] confirmed that the boys did not in fact notice or record anything that would indicate that the appellant was acting or behaving strangely or out of the ordinary during the happening of any of the incidents. The Crown submitted:
"[21] By making this concession, by agreeing to the 11 page statement of facts by silence, and by the admission through Doctors Richardson and Nielssen that the appellant was an unreliable historian, his Honour was thereby able to proceed on the basis that the agreed facts were exactly that and proceeded to turn his attention to the real fact in issue, namely, whether or not the appellant was entitled to a special verdict."
(iii) The appellant's statement to Dr Richardson that "she knew what she was doing was wrong". This statement, the Crown contended, coincided with Professor Greenberg's opinion where he said that she had both understood the nature and quality of her acts and that she knew that what she was doing was wrong.
(iv) Dr Richardson made significant concessions in the cross-examination, as recorded at [33] of the Crown's Written Submissions.
(v) The Crown observed that in determining whether the appellant did not know that what she was doing was wrong, the trial judge relied upon the following matters:
(a) The fact that the appellant had never said to any of the psychiatrists that she did not know that what she was doing was either legally or morally wrong. Additionally, she agreed that she said to one of the victims, JP, that what she was doing was " on her" and, if she was found out, she would go to jail.
(b) That there was no evidence of her behaving in an abnormal manner in the period over which the offences were committed. She was able to continue working at her normal skill level. There was nothing to indicate that her behaviour was otherwise abnormal. That was contrary to the way one would be likely to find someone who was in a manic state.
(c) That she was careful not to be caught with the boys, for example, when she went to the campsite, she went after dark and turned off a torch because she did not want anyone to see her approach. The trial judge referred to evidence of other instances of this type of behaviour.
(d) In speaking with the doctors, the appellant minimised her own involvement by telling the doctors that the boys had started the sexual behaviour. Reference was made to a couple of entries on Facebook where Dr Nielssen was asked whether that meant that she knew it was wrong and not right, and she answered "Yes, it sounds like it."
(vi) That the conclusion reached by the trial judge was entirely open on the evidence and it was based upon a careful analysis of the medical evidence undertaken by him.
(vii) In relation to the question of irresistible impulse, the Crown stated that there had been no reference to that concept in any of the medical reports. It was introduced by the Crown to Dr Richardson in cross-examination when he was asked whether the appellant demonstrated an irresistible impulse. Dr Richardson said she did.
(viii) An irresistible impulse is not a defence per se: Attorney-General for South Australia v Brown (1960) AC 432 at 23 and Sodeman v the King (supra).
(ix) As the appellant was an unreliable historian it was necessary, as Dr Richardson conceded in cross-examination, to have regard to the surrounding circumstances. When the trial judge did this he came to the conclusion that the appellant knew that what she was doing was wrong. His Honour found that the previous and contemporaneous acts of the appellant were to be preferred to medical theory. That approach afforded the best way to assess the environment and circumstances in which the appellant was operating.
The Crown submitted that on an analysis of the evidence, including the evidence on the above matters, the trial judge reached the conclusion that the opinion expressed by Professor Greenberg was to be preferred to that of both Dr Nielssen and Dr Richardson in relation to the opinions they expressed that she did not know that what she was doing wrong.
Consideration
In this case where the Crown has established, beyond reasonable doubt, the elements of each of the crimes charged, the issue for determination at trial was whether the appellant had available to her the defence of mental illness, as to which she bore the onus of proof on the balance of probabilities: Mizzi v R [1960] HCA 77; (1960) 105 CLR 659 at 664-665.
If a finding was made that the appellant suffered from mental illness according to the accepted test as at the time she is alleged to have committed the relevant acts, then the trial judge would have been required to return a special verdict that the appellant was not guilty of the charges by reason of mental illness: s 38(1) of the Mental Health Act.
The defence of mental illness must be determined in accordance with the M'Naghten rules laid down in R v M'Naghten (1843) 8 ER 718. Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his or her crimes, until the contrary is proven. To establish the defence of mental illness, it must be proved upon the balance of probabilities that at the time of committing the act alleged in the indictment, the appellant was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of her acts, or if she did know it, that she did not know that what she was doing was wrong. It has been held that a person does not know that what he/she was doing was wrong when he/she does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he/she cannot reason with some modest degree of calmness in relation to the moral quality of what he/she is doing: R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190.
In R v Pratt [2009] NSWSC 1108, the relevant principles were summarised by RA Hulme J at [19]-[21]:
"[19] In relation to the concept of a 'disease of the mind' which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community.
[20] As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong.
[21] A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong."
In the proceedings before the trial judge, his Honour referred to the M'Naghten test and quoted well-known passages on the test formulated by Dixon J (as his Honour then was) in R v Porter, supra, at 198-190: Judgment at pp 10-11.
The trial judge, at pp 11-12, also referred to the judgments of the High Court in Stapleton v The Queen [1952] HCA 56; 86 CLR 358 at 367, Sodeman v R (supra) at 215 and Willgoss v R (supra) at 295.
His Honour's analysis of the mental illness defence unsurprisingly turned to a significant extent upon the expert medical evidence adduced at trial together with evidence of the factual matters concerning the alleged offences as set out in the Statement of Alleged Facts.
The Crown case was that the appellant did not suffer, in the relevant period, from a mental illness. If mental illness was established then the Crown contended that she did not lack the capacity to understand that what she did on each occasion was wrong.
In order to support its case, the Crown tendered the detailed report of Professor Greenberg dated 27 May 2010. Professor Greenberg also attended for cross-examination.
There were two principal issues in relation to the defence, both of which were the subject of conflicting expert opinion evidence. The first was the issue of diagnosis. The second, depending upon the answer to the first, was the issue of the appellant's capacity to understand that her alleged acts were wrong. In the discussion that follows each of these two issues will, for convenience, be referred to as "the First Issue" and "the Second Issue".
In relation to the First Issue, Professor Greenberg's evidence was:
1) That the appellant did not suffer from a disease of the mind. Professor Greenberg considered her to have what he described as "severe personality dysfunction" and as "personality disorder": Professor Greenberg's Report 27 May 2010, respectively at pp 19 and 21
2) That the appellant did not suffer from a "Bipolar I Disorder", "Bipolar II Disorder" or "Bipolar Disorder Not Otherwise Specified (NOS)": Professor Greenberg's Report at p 21
3) That the appellant did not suffer from "a disease of the mind" during the relevant period: Professor Greenberg's Report at p 22.
On the Second Issue, Professor Greenberg's evidence was that, in his opinion, the appellant understood "... the wrongness of her actions during that time": Professor Greenberg's Report at p 23.
Professor Greenberg's evidence on both issues conflicted with the expert evidence of the two consultant psychiatrists called in the defence case, Dr Richardson and Dr Nielssen. Both diagnosed the appellant as having been mentally ill in the relevant period. In particular they considered:
(i) That the appellant suffered from a disease of the mind throughout the relevant five-month period, being Bipolar I Disorder.
(ii) That the Bipolar I Disorder during that period resulted in the appellant being in a manic state
"... racing and disorganised thinking during which she was unable to recognise that her actions were morally wrong or to reason with sense and composure about the consequences of her actions.": Dr Nielssen's Report of 22 December 2009 at p 7.
Dr Richardson expressed a similar opinion in his report dated 9 July 2010, at p 2.
The trial judge, on the First Issue, accepted the opinion evidence of Dr Richardson and that of Dr Nielssen, that is that, contrary to the opinion of Professor Greenberg, the appellant had suffered in the relevant period from a Bipolar Disorder Type I condition, which his Honour observed,
"... is a manic depressive illness": Judgment at p 10.
On the Second Issue, the trial judge, however, concluded:
"... I prefer the opinion expressed by Professor Greenberg to that of Dr Nielssen so far as knowing what was she was doing was wrong in accordance with the legal definition ...": Judgment at pp 31-32.
His Honour also said that he did not agree with Dr Richardson's opinion and stated:
"... I prefer the Professor's opinion having analysed the evidence and having set out earlier parts of that analysis. I found his opinion to be logical and soundly based. I was not as confident of Dr Nielssen's opinion ...": Judgment at p 32.
The full passage from the judgment from which this quote is taken as follows:
"I have given reasons as to why I do not agree with the opinion of Dr Richardson, who supports the defence. I prefer the Professor's opinion, having analysed the evidence and having set out earlier parts of that analysis. I found his opinion to be logical and soundly based. I was not as confident of Dr Nielssen's opinion. It seems to me that, at least in part, he based it on the bizarre nature of the accused's behaviour and therefore concluded that she must have been suffering a manic episode. I do not agree with that finding. I do not agree with the finding that she did not understand what she was doing was morally wrong, and I do not believe it can be made, on any basis, once you start to analyse the evidence of what she was doing, and what she herself has said." (T at p 32)
Two fundamental matters arise concerning the judicial method employed by the trial judge in arriving at his ultimate conclusion that the defence of mental illness had not, on the balance of probabilities, been made out:
1. The trial judge proceeded upon the basis that Professor Greenberg's opinion should be accepted on the Second Issue over that of Drs Richardson and Nielssen, notwithstanding that the opinion expressed by Professor Greenberg on the First Issue (that the appellant did not have a disease of the mind) was rejected. As indicated in the above discussion the trial judge accepted the evidence of Drs Richardson and Nielssen that the appellant had suffered a Bipolar I Disorder.
2. Professor Greenberg's opinion as to the First Issue, however, constituted a significant basis upon which his Honour proceeded to analyse the Second Issue. The trial judge, however, did not explain how Professor Greenberg's opinion on the First Issue could not or did not affect or impact on the validity of his conclusion on the Second Issue.
Professor Greenberg's opinion on the Second Issue relied to a significant extent upon evidence on the following matters:
(a) The appellant's apparent ability to carry on with her work duties in the relevant period.
(b) That if she suffered from a high mood state, consistent with Bipolar Disorder, that that would have been noticeable to others, including fellow employees.
(c) Statements made by the appellant and her conduct were indicative of what might here be termed furtiveness or an awareness of wrongdoing, eg, hiding behind tree when the Headmaster was reportedly approaching, telling one boy that if anyone found out she would go to jail, etc: See Professor Greenberg's Report last pp 23-24.
The evidence of Dr Richardson, and particularly the evidence of Dr Nielssen, addressed each of the matters (a), (b) and (c) above. Both considered the particular matters that provided the context in which each was to be considered.
Whilst the trial judge referred to the fact that he had had regard to all of the evidence, his Honour did not address the evidence given by Drs Richardson and Nielssen on each of the matters referred to in (a), (b) and (c) above. The trial judge failed to explain the basis for according the significance he attached to the evidence of Professor Greenberg on the Second Issue in light of contrary evidence given by Drs Richardson and Nielssen on those particular matters (which evidence is discussed below).
In particular the trial judge did not identify any basis for not accepting the evidence Dr Nielssen on the matters in [58] (a), (b) or (c) above.
Analysis undertaken by the trial judge
The trial judge set out several references to the evidence given by each consultant psychiatrist. The specific references in that respect are to be found at pp 22-26 of the judgment.
The trial judge then commenced his analysis by identifying factors that pointed in the direction of supporting the mental illness defence and to those he considered pointed the other way. His Honour posed for himself the question:
"What evidence is there which would assist me to know that she did not know that what she was doing was wrong?" (T at 27)
Reference was then made to four aspects of the evidence that pointed in favour of the defence:
(1) That the appellant's behaviour was "totally bizarre, especially for a female. Dr Nielssen said he had never heard of a behaviour of this type before, although I have got to say Professor Greenberg said he had.": Judgment at p 27-29.
(2) Dr Nielssen's evidence to the effect that in his clinical experience the people in a "manic state" do try and hide what they are doing providing examples of patients engaging in sexual activity but ensuring at all relevant times that they did so in private.
(3) Evidence that the appellant had gone on "... a spending spree which was consistent with manic behaviour...".
(4) Dr Nielssen's expressed opinion that that appellant did not know what she was doing was legally or morally wrong: Judgment p 28.
The trial judge then proceeded to refer to a number of matters that pointed in the opposite direction. These were clearly matters to which his Honour gave considerable weight. They were matters that had been raised by Professor Greenberg. However, as observed above, his Honour failed to refer to the evidence of Dr Nielssen on each of the matters which, if accepted, would diminish the significance that Professor Greenberg had attached to them. They were as follows:
(1) That as he understood it, the appellant had never said that she did not know that what she was doing was either legally or morally wrong. However, having said that his Honour also observed that the appellant had given a history to Professor Greenberg in which she said "... that she did not understand the wrongness of her actions at the time.": Judgment p 28.
(2) Certain statements made by the appellant. These included:
(i) The appellant's statement to JP that what she was doing was "severe on her" and if she was found out she would go to jail;
(ii) The appellant's statement that she felt what she had done was the wrong thing by God, her parents and the school. (However, it was also noted that there was also some mention that she did not understand the wrongness of her actions): Judgment p 28.
(3) His Honour considered the appellant's general appearance or presentation to others did not reveal that the appellant seemed to be manic or that her behaviour in life in general was abnormal. In particular, his Honour noted that she continued to work apparently at her normal level of skill. There was no evidence of the appellant behaving in an abnormal manner at home and that she apparently continued to do housework. It was noted that there was an absence of certain symptoms which some doctors had said would be likely to be found in someone in a manic state. There was also no evidence of her seeking sexual partners when she was away from the school.
The trial judge discussed the above matters as pointing against mental illness: Judgment at pp 28-31. Two of the matters to which Professor Greenberg gave particular emphasis were:
(1) The apparent ability of the appellant to lead a "normal" life during the period of the alleged offending. Professor Greenberg expressed the opinion that this was inconsistent with the proposition that she did not understand that what she was doing was wrong: Professor Greenberg's evidence at T 21.
(2) Statements and conduct by the appellant which it was said indicated awareness and an attempt by her to avoid detection: Professor Greenberg's Report 27 May 2010 at p 23.
As discussed above, Dr Nielssen addressed each of these matters. In particular, he explained why he did not consider they undermined his opinion on either the First or Second Issues. Earlier in his judgment the trial judge described Dr Nielssen as "a well-qualified psychiatrist and respected psychiatrist ...": Judgment at p25. The failure to refer to Dr Nielssen's evidence on those particular matters appears to be an inadvertent omission.
As to the first, the trial judge observed:
"As I see it, certainly in the facts given to me, if you take out the bizarre sexual behaviour with the boys, there is no evidence of her behaving in an abnormal manner during the period over which these offences were committed; that is, her behaviour in life in general. She was able to continue working. She was able to, apparently, work at her normal level of skills. There is nothing in the boys' evidence, once you take away the sexual behaviour, which would indicate she was behaving in an abnormal manner. There was no evidence she was behaving in an abnormal manner at home. She apparently continued to do her housework and there was not evidence of some of the symptoms, which the doctors expressed the view, that you would be likely to find in someone who was in a manic state." Judgment at p 28-29.
In evidence in chief, Dr Richardson was referred to Professor Greenberg's report (third paragraph, p 23) in which he stated that persons with Bipolar Disorder were impaired in terms of occupational functioning during periods of mania. Dr Richardson observed that whilst persons who suffer from the disorder invariably have severe impairment in their social world and in occupational functioning during periods of mania, he said in relation to the appellant's occupation:
"... but it wasn't a particularly onerous position as housemother in this boarding school. It's not likely that people were looking over her shoulder or even suspecting what was going on. So I think in that - in an environment in which she wasn't being closely watched it could be easily got away with those big issues." (T 30 November 2010 at p 8).
He was then asked the question:
"Q: Sir the examples that the Professor is talking about where [CJ] made numerous entries into the hospital records which were in the Professor's opinion coherent, neat and with recorded temperatures, that's not necessarily something that indicates that Bipolar Disorder is not present?
A: I think that's a small matter that she's able to complete, take someone's temperature and write it down on a piece of paper neatly. She could well have been able to do that and still have been quite manic." (T p 8).
Dr Nielssen said that whilst usually a major manic depressive episode prevented a person from doing their job he added:
"There's a number of very successful people with bipolar, for example a number of actors and writers and business people some well-known who really profited from their periods of elevated mood." (T 2 December 2010 at p 63).
Dr Nielssen was asked about work entries that had been made by the appellant and as to whether they were significant on the issue of her ability to function. He replied:
"A: I mean, it doesn't make any difference, you know, she knows what day it is, she knows how to get home, she knows what she's supposed to be doing, they're pretty coherent entries on the whole, perhaps a little bit long which is consistent with hypomania, they tend to talk a lot.
Q: But they're coherent, appropriate, indicating as far as we can tell that she was treating and dealing with these students in an appropriate, apparently professional fashion?
A: Yes.
...
Q: Yes; are all these notes inconsistent with mania, do you think?
A: Well, not inconsistent, I think you can still go about your normal roles, but they don't concern the presence either. (T p 76).
On the issue as to whether the manic symptoms would be apparent to others, Dr Richardson was asked:
"Q: Similarly, the Professor talks about that no other staff member noted any hypomanic symptoms such as grandiosity, pressured speech or excessive involvement in pleasurable activities in that period.
A: They might well have been oblivious, it would depend on how well they knew [the appellant] most people who have got an elevated affect just come across as being good fun to be with. People aren't suspicious that their mood is falsely elevated. They tend to radiate good humour, so people see them as well as they do themselves ..." (T p 8).
Dr Nielssen was asked:
"Q: And I think what Professor Greenberg also had to say is a descriptor of manic episode under Bipolar Disorder would be so evident to people around the person that those characteristics would stand out. Is that your understanding of manic episodes?
A: No, not necessarily, certainly not to a lay person. A lay person may just see you as being in an abnormally good mood, not that it was hypomanic. They might see you as seeing yourself very happily, very cheerily, being very busy, very energetic, talking about holiday plans or shopping plans or a lay person may not recognise the person to be hypermanic because there's no clear abnormality of the form of thought unless you try and engage in a long conversation and find the person can't keep on the one topic, it may not be evident to people around you that you are hypomanic." T 53.
He gave evidence to the same effect at page 62 of the Transcript.
Dr Nielssen also gave the following evidence:
"Q: So you can in your typical day to day pattern of normal roles apparently function normally to everybody, but just this one area of behaviour where you can't reason?
A: I think most people would have noticed that she was in a good mood, but to a lay person that's all they would, might have appeared." T 76
...
"Q: And if somebody worked at a school for 2 years and this occurred in the second year and no-one noticed when the person changed in mood in the second year, would that give you pause in relation to your diagnosis of the mania?
A: Yeah, small difference, usually some signs of elevated mood but just depending how closely people paid attention to her." T 77
In relation to the significance, if any, to be attached to particular statements made by the appellant and what may be described as displaying furtive conduct by her or conduct to avoid detection, Professor Greenberg's analysis was accepted by the trial judge and was relied upon for the proposition that such conduct was inconsistent with Bipolar Disorder Type 1. The trial judge set out, at page 30 of the Judgment, a number of instances of conduct by the appellant referred to by the trial judge as:
"... she was being careful that she was not caught with the boys." Judgment at p 30.
The trial judge then added:
"... I need to take that into account, together with those matters set out when Professor Greenberg questioned her at p 10 of his report and that there she stated that what they were doing was severe on her; if anyone found out she would go to jail. She stated that JP was under-age and that she would get into trouble but did not care." Judgment at p31
The trial judge a little later then stated his conclusion:
"Having reviewed all those matters and having to consider the evidence totally, and particularly having read, on a number of occasions, the evidence, particularly of Dr Nielssen and Professor Greenberg, and also considered the evidence of Dr Richardson, I have reached the conclusion that I prefer the opinion expressed by Professor Greenberg to that of Dr Nielssen as far as knowing that what she was doing was wrong in accordance with the legal definition." Judgment p31-32.
Before stating that conclusion, however, the trial judge did not refer to the evidence of Dr Nielssen specifically directed to the issue of furtive or "avoidance" conduct.
Dr Nielssen stated that patients who suffered from Bipolar Disorder and who engaged in sexual activity with others, in his experience, took steps to do so in circumstances that would maintain privacy around such activities. He additionally stated that a person suffering from Bipolar Disorder may have some awareness that a particular act was wrong in the sense of being a "legal wrong" without having the ability in the manic state to appreciate that it was "morally wrong". He said that he had been aware of the fact that the appellant had sought to hide what was going on. He was asked:
"Q: To go to a secluded place and have sex with one or more of the boys; does that affect your opinion regarding her knowledge of wrongfulness or wrongdoing?
A: No it doesn't. I mean, it does indicate an awareness that other people would disapprove. It indicates an awareness of the nature of the act but her perspective in a very elevated and enthusiastic state is that it is not morally wrong and that is the distinction I would make.
Q: On one occasion she indicated to one of the boys I think that if she was caught, something along these lines, if she or they were caught, she'd go to jail because the boys were underage?
A: Yes.
Q: What do you have to say about that?
A: Well again it does indicate her knowledge of a legal wrong of the behaviour but my experience of the mental illness defence that is not the test to be applied here. The policeman at the elbow test is not a test of mental illness defence." T 59-60.
A little later Dr Nielssen explained that the appellant had:
"... some knowledge it was legally wrong but in her state she wasn't able to recognise it was morally wrong ..." T 60 lines 30-33.
He was then asked:
"Q: Where is the correlation with [the appellant] with that type of example? [Referring to the 'policeman at the elbow test']
A: Well, the mentally ill person is unable to reason with a sense of composure at the time, they are mentally ill at the time, and their behaviour is due to mental illness and the suicide attempts are due to the effects of mental illness. If there had been someone there to pull them up, they might not have done but they did it." T 60 lines 40-46.
In cross examination it was put to Dr Nielssen that the appellant had acted so as to avoid detection:
"Q: On page 2 with respect to Count 1 at paragraph 6, the accused said: 'We've got to do it in some place secret, some place safe, like safe'. Now as I understand your evidence, you say that the accused could say this yet still think that it was not wrong what she was doing?
A: Well, not morally wrong but legally wrong. Again I use the analogy of the manic females in psychiatric wards. They don't have sex in the open areas, they go to the bathroom or to their rooms." T 67.
Dr Nielsen was again asked about activities such as turning off the torch, pulling curtains closed, shutting doors, her concern that the victim not tell anyone. He was asked:
"Q: Isn't that consistent with knowledge of moral wrongfulness?
A: Again, I rely on the defect of reason associated with abnormally elevated mood, where there's an abnormal optimum enthusiasm, racing thoughts, lack of capacity to stop and reflect on how wrong it is in a moral sense. There's an awareness it's illegal, that other people disapprove but have trouble to follow, but in the manic state just think it's a good idea at the time.
Q: There can still be the thought that it is a good idea with an understanding of the moral wrongfulness, can't there?
A: Yes, I can see how that might be the case in the person who wasn't manic. But the loss of judgment and the loss of her capacity to reason that's associated with this kind of mental illness is overawing and deprives you of that moral judgment." T 68 lines 17-20.
The evidence of Professor Greenberg did not deal with the specific considerations which Dr Nielssen considers were of importance in the evaluation of the appellant's mental condition. In particular, he did not make the distinction between "legal wrongfulness" and "moral wrongfulness" as the basis for the test of mental illness.
Conclusions
The judicial method to be applied in resolving conflicting expert evidence required the trial judge to consider and take into account Dr Nielssen's evidence on the matters on which Professor Greenberg had placed particular reliance. In several of his answers Dr Nielssen, as an experienced forensic psychiatrist, drew upon his clinical experience of treating patients with Bipolar Disorders. Consideration of his evidence based on that experience was essential in a proper evaluation of the mental illness defence.
The failure by the trial judge to consider the evidence of Dr Nielssen on the issues discussed above raises the question as to the adequacy of the basis upon which the trial judge proceeded in saying that he preferred the opinion of Professor Greenburg over that of Dr Nielssen on the issue of the appellant's knowledge of the wrongfulness of her actions.
In summary, there are two difficulties associated with the trial judge's stated preference for Professor Greenberg over Dr Nielssen. First, as earlier noted, Professor Greenberg proceeded throughout upon the basis that the appellant did not have a mental illness at the time of the alleged offences. Accordingly, his opinion on the question of "wrongfulness" was at the least influenced by his firm opinion to that effect. This was significant in a case in which an affirmative finding was made that the appellant had suffered from a mental illness in the relevant period.
Second, the trial judge relied upon matters raised by Professor Greenberg as being inconsistent with an inability in the appellant to understand that the alleged acts committed by her were "wrong" without taking into account the contrary views expressed on those matters by Dr Nielssen. In such circumstances, a statement preferring one expert witness' opinion over that of another does not satisfy accepted principles of judicial decision-making.
In Alchin v Daley [2009] NSWCA 418, Sackville AJA, with whom McColl and Young JJA agreed, observed:
"[35] ...
(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties ... see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO (1997) 48 NSWLR 430, at 443, per Meagher JA."
In that case it was stated:
"Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.': North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to." (Emphasis added).
The judicial duty to provide reasons may have a particular content where a trial judge is required to resolve differences of opinion between properly qualified reputable experts. In a passage which has been frequently cited with approval in New South Wales, in Flannery v. Halifax Estate Agencies Limited [2000] 1 WLR 377 (at 381 - 382; 377 - 378), Henry LJ said:
"It is not a useful task to attempt to make absolute rules as to the requirement for the Judge to give reasons. This is because issues are so infinitely various. For instance, when the Court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than the witnesses for one side were more credible ... but with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v. Binnie (1988) 18 Con LR 1 at 77 - 78:
'In resolving conflicts of expert evidence the Judge remains the Judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely) a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...'
...
[w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...
[See Moylan v. Nutrasweet Co. [2000] NSWCA 337; Mistral International Pty Ltd v. Polstead Pty Ltd [2002] NSWCA 321; Archibald v. Byron Shire Council (2003) 129 LGERA 311; Wiki v. Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136 [60] - 138 [68]].
It is plain, having regard to the issue in dispute and the conflict in the expert evidence, that it was critical for the trial judge to analyse and evaluate the evidence of each witness before determining whether or not the appellant had discharged the onus upon her to establish the mental illness defence.
An evaluation of the whole of the evidence required particular consideration of the statements made by the appellant which, taken at face value, could be construed as acknowledgements by her that she understood that what she was doing was wrong. However, there was expert evidence, in particular, that of Drs Richardson and Nielssen, that established that such statements may properly be taken as retrospective statements rather than as statements reflecting the appellant's state of mind contemporaneously with the particular acts in question.
Likewise a complete understanding of the medical evidence was critical in evaluating and determining the nature and/or level of knowledge or understanding of the appellant and whether or not any awareness of the legal wrongness of her acts was sufficient in the circumstances of the case to also establish that she knew that her acts were also wrong according to the ordinary standards of right and wrong adopted by reasonable persons as against "wrong" in the legal sense of that term. A further or related consideration was whether or not the appellant, in the manic phases of her disorder, was or was not able to reason with a modest degree of calmness in relation to the moral quality of what she was doing: Sodeman v the King (supra) at 215 per Dixon J (as his Honour then was); Stapleton v the Queen (supra) at 367 (per Dixon CJ, Webb and Kitto JJ).
The failure by the sentencing judge to analyse all of the evidence, in my opinion, constituted appellable error resulting in a miscarriage of justice.
For the above reasons, as earlier noted, the Court made orders allowing the appeal and quashing the conviction and remitting the proceedings to the District Court for retrial.
In pronouncing its orders on 24th July 2012, the Court omitted to make an order in respect of the appellant's application for an extension of time. The error in this respect represents a slip or omission. The appeal was argued and dealt with upon the basis that an extension of time should be granted, the Crown not opposing the same. The Court accordingly should correct the error pursuant to the power conferred by s 12(1) of the Criminal Appeal Act 1912 and Rule 36.17 Uniform Civil Procedure Rules 2005.
I propose the following orders:
(1) The period for which the appellant's notice of intention to appeal has effect is extended to 19th December 2011.
(2) That the following orders of the Court made on 24 July 2012 be confirmed:
(1) Appeal allowed.
(2) Convictions quashed.
(3) The matter be remitted to the District Court for retrial.
CAMPBELL J: The reasons of Hall J express why I joined in the orders of the Court pronounced on 24 July 2012 and I have nothing to add, save that I agree with order (1) proposed in [99] of his Honour's reasons.
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Decision last updated: 14 December 2012
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