Da-Pra v The Queen

[2015] HCATrans 60

[2015] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S278 of 2014

B e t w e e n -

RENZO DA‑PRA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2015, AT 12.33 PM

Copyright in the High Court of Australia

MS C.T. LOUKAS, SC:   May it please the Court, I appear with my learned friends, MS G.E.L. HUXLEY and MR B.C. DEAN, for the applicant.  (instructed by Legal Aid NSW)

MS S.C. DOWLING, SC:   I appear for the respondent.  (instructed by Acting Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Ms Loukas.

MS LOUKAS:   Thank you, your Honours.  Your Honours, in our submission, the special leave questions set out at AB 261 in relation to conviction are questions of general importance.  If I might take the Court directly to the first two special leave questions.  The first two special leave questions are, of course, related and concern the application of section 7(4) of the Criminal Appeal Act and the finding of not guilty by reason of mental illness.  The first special leave question concerns this question:

1.Is the Court of Criminal Appeal required to conduct an independent assessment of the evidence at trial when considering whether to find a person not guilty by reason of mental illness under [the section] –

and the second special leave question –

2.What is the test for the exercise of the Court of Criminal Appeal’s [statutory] power [under 7(4)] to find a person not guilty by reason of mental illness –

It is convenient to take your Honours directly to AB 230 and, in particular, to paragraphs 383, 384 and 385; that is where we say the relevant analysis occurs, and where the errors are revealed.  In those paragraphs, your Honours, in particular 383 to 385, we submit the Court of Criminal Appeal has not fulfilled their statutory task.  The wording of section 7(4) permits of only one approach; is the Court of Criminal Appeal satisfied on the balance of probabilities?  That is embedded in the words of section 7(4) “it appears to the court”.

Through those three paragraphs, 383, 384 and 385, we say there are three distractions from the statutory task, and they are these.  At 383, following upon an analysis that begins at paragraph 375, but concluding there at 383, the Court of Criminal Appeal states in relation to the assumptions of Dr Allnutt:

amply supported by the evidence, it was open to the jury to reject the defences raised and to find the appellant guilty of counts 2 and 3.

Whether or not it was open is not the statutory task, and it is not what Parliament requires under section 7(4).  That analysis by the Court of Criminal Appeal only has regard to the sufficiency of the evidence, rather than the quality of the evidence.  Going on to paragraph 384, and towards the end of that paragraph where this statement is ‑ ‑ ‑

FRENCH CJ:   You have obviously no complaint about their approach to count 1?

MS LOUKAS:   Indeed, your Honour, but clearly the right result was reached in relation to count 1 ‑ ‑ ‑

FRENCH CJ:   Do you say they made the same mistake?

MS LOUKAS:   There is an interesting contrast there between the Court of Criminal Appeal analysis in respect of count 1 and the analysis in respect of count 2.  Clearly, the right result was come to in respect of count 1, we say, and ostensibly the correct test was applied, but, we say, what the analysis hinged upon and where the errors revealed in paragraph 384 is that the analysis hinged on unanimity or otherwise.  This is revealed, in particular, when one goes to paragraph 384:

Unlike count 1 and in contrast to Derbin, the evidence relating counts 2 and 3 did not involve unchallenged unanimous opinions by psychiatrists –

What that reveals, we submit, your Honours, it carries with it the implication that we, the Court of Criminal Appeal, will defer to the jury when the psychiatrists are not unanimous, but we will not defer to the jury if they are unanimous.  That impermissibly confines the statutory task.

NETTLE J:   But it is 385 you have got to get over, is it not?

MS LOUKAS:   Indeed, but there is also within 385 an issue, and it is this.  What the court has to say at 385 is that:

To adopt the terminology of Walsh J in R v Jenkins . . . we do not consider that “the evidence was so strong in favour of the view that the appellant was mentally ill, so as not to be responsible according to law”.

NETTLE J:   That observation is conditioned on the first sentence, which is the critical aspect of the paragraph, I think.

MS LOUKAS:   Yes:

We are not satisfied that the material relied upon for the opinions of Drs Nielssen and Reutens in relation to counts 2 and 3 was sufficiently reliable –

But to take that paragraph in sections, the problems are, firstly, that by coming to “the evidence was so strong”, that introduces a Briginshaw principle in relation to the ostensible application of Jenkins; that is, that the evidence has to be so strong, and that is not what the statutory task is embedded in section 7(4).  When one goes back to that first paragraph, as your Honour Justice Nettle has underlined, when that point is made, “not satisfied that the material relied upon . . . [by] Drs Nielssen and Reutens”, first of all, that is given no content earlier in the reasons, but leaving that aside, what it leaves out and what is critical to the approach that was adopted by the Court of Criminal Appeal here was that there was no independent assessment of Dr Allnutt’s evidence.

NETTLE J:   Does that not refer back to the preceding sentence, which is the last of 384, where their Honours contrast count 2 with count 1 on the basis that here the evidence is contested, namely, opinions in opposition to Drs Nielssen and Reutens?

MS LOUKAS:   Indeed, but what that does ignore is that there are three reports from Dr Allnutt, and within the third report – and the nature of the assumptions within the third report – is a fundamental aspect of the evidence, that is, premeditation or otherwise, that the Court of Criminal Appeal simply does not grapple with, and the Court of Criminal Appeal does not grapple with because there has been no independent assessment of Dr Allnutt’s evidence.  All that has occurred in relation to Dr Allnutt’s evidence is this open question that goes from 375 through to 383.  All that has happened in relation to Dr Allnutt’s evidence is this open question; that is not the statutory task.

In 385, there has been no independent assessment of Dr Allnutt’s evidence, and so they have asked themselves the wrong question.  They have applied the wrong test in terms of “so strong” in 385, and that is predicated upon asking the wrong question, which is only looking at the evidence of Drs Nielssen and Reutens and not independently assessing Dr Allnutt’s evidence, nor independently assessing the rest of the evidence in the case.  That is where the errors are revealed, we say, through those three paragraphs, and in particular that statement in 385 of “so strong” simply does not perform the statutory task, and the first sentence in relation to the evidence of Drs Nielssen and Reutens reveals the fact that there was no independent assessment of the rest of the evidence in the case which is required by the statute.

It must be said, had an independent assessment been made of Dr Allnutt’s evidence, the three reports and the three different scenarios within the third report, this would have had to be dealt with in the Court of Criminal Appeal’s reasons.  It has not been because there was no independent assessment of Dr Allnutt’s evidence.  We say in relation to that, your Honours, that the grant of special leave is required in this case because it is a question of general importance; the construction of section 7(4) and the application of section 7(4) and the Court of Criminal Appeal substituting a verdict of not guilty on the basis of mental illness.

NETTLE J:   It is not suggested, is it, that Mr Justice Walsh’s test in Jenkins is wrong?  That is accepted as correct exposition of the law?

MS LOUKAS:   No, your Honour.  Your Honours, we would submit that what Justice Walsh says in Jenkins refers rather to the discretion as opposed to, it appears, to the court.  If you look, in particular, at section 7(4), there are two critical aspects in the text and that is, section 7(4) states:

If, on any appeal, it appears to the court –

so that introduces that the Court of Criminal Appeal must be satisfied on the balance of probabilities and the independent assessment question.  But when one goes further on to the question later in section 7(4), where it says –

or may make such other order –

that is where the discretion comes in, and that is where the statement of “so strong” is directed to.  It is not as to whether the court is satisfied on the balance of probabilities, but rather the discretion comes in at that point.  That is embedded in the words of the section.

In fact, the words of Jenkins are quoted at AB 221 – I might take your Honours to that segment of the judgment, which makes this point in relation to statutory construction clear.  At the top of AB 221, there is this quote from Jenkins that is taken from the judgment of President Mason in the case of Derbin, and this statement is made in Jenkins – this is at about point 15:

The jury’s verdict might not be unreasonable in that sense and yet the Court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order under s7(4) –

It is followed upon with this –

The condition of the exercise of the power, as expressed in the subsection, is that it appears to the Court that the accused was mentally ill.

That makes it quite clear the two different aspects of the test; firstly, what is the condition, that is, the court satisfying itself on the balance of probabilities the verdict of not guilty on the basis of mental illness is appropriate, and the condition that is to be contrasted with the discretion where the “so strong” goes to.  There is the confusion there, we would submit, in relation to the approach the Court of Criminal Appeal has adopted; they have confused the test for the discretion.  That is what appears, we submit, at paragraph 385 when analysis occurs of what is stated in Jenkins and its application.

It is also, as is reflected in our written submissions – in particular at paragraph 27 – there has been some confusion about the nature of, and conflicting authority throughout Australia about the application of Jenkins.  That is revealed in particular, as we have referred to in paragraph 27, in decisions of Hitchens, Hilder, Jenkins, Weise – there is different conflicting authorities throughout Australia.  Of course, in Victoria, your Honours, the legislation has changed in the meantime but, nevertheless, when one looks at the approaches being adopted throughout Australia, it is clear that there is conflicting authority that only this Court can deal with.

The point we would make on this aspect of general importance is there are three reasons that we say special leave is appropriate in this matter; what is the test, firstly, for the exercise of the power of a Court of Criminal Appeal to find a person not guilty by reason of mental illness; secondly, as I have just emphasised, the scope of this section and other equivalent sections in other States and Territories in Australia, and the conflicting authorities that we have referred to in paragraph 27 of our written submissions; and thirdly, it is a basic part of the criminal law that those who are mentally ill, in the McNaughton sense, are not guilty by reason of mental illness.  It is for those reasons that we submit that a grant of special leave on the question of general importance is appropriate in relation to the first two questions in relation to conviction; that is question 1 and question 2 in relation to independent assessment and what is the test.

The third question, your Honours, is the question in relation to sentence.  The first sentence question, that is question 3, raises a question of general importance, we say; a Court of Criminal Appeal using two‑stage sentencing in assessing manifest inadequacy.  It is accepted that the remaining sentence questions – that is, questions 4 to 6 – are not questions of general importance but, rather, we submit, miscarriage of justice points.  Nevertheless, if this Court were to grant special leave with respect to

question 3, the first sentence question – and that is the question of using two‑stage sentencing to assess manifest inadequacy – the remaining questions, 4, 5 and 6, could be dealt with briefly by this Court as miscarriage of ‑ ‑ ‑

FRENCH CJ:   The sentences imposed in relation to counts 2 and 3 by the primary judge – I am just looking at the summary in paragraph 18 of your submissions  – are 15 years with a 10‑year non‑parole period on count 2, and six years with a non‑parole period of four and a half years on count 3.

MS LOUKAS:   That is correct.

FRENCH CJ:   What is the total effective sentence that was thus imposed?

MS LOUKAS:   The total effective sentence was ‑ ‑ ‑

NETTLE J:   25 with 18.

MS LOUKAS:   Thank you, your Honour.

FRENCH CJ:   Then the resentencing, 20 with a 13, and 10 with seven and a half.

MS LOUKAS:   The total effective sentence on resentence by the Court of Criminal Appeal was ‑ ‑ ‑

NETTLE J:   25 with 18.

MS LOUKAS:   That is 25 with 18, your Honours, on resentence; that is correct.

FRENCH CJ:   Okay.

MS LOUKAS:   Your Honours, finally, in relation to the three special leave questions that we say are of general importance where there has been, we submit, clear error, and the errors require correction by this Court – and in particular, the questions in relation to mental illness and the question in relation to assessing manifest inadequacy by two‑stage sentencing.  Thank you, your Honours.

FRENCH CJ:   Thank you.  We will not need to trouble you, Ms Dowling.

In our opinion, the approach of the Court of Criminal Appeal of the Supreme Court of New South Wales to the assessment of psychiatric evidence in relation to counts 2 and 3 did not disclose the error of which the applicant complains.  The prospect of success on an appeal against sentence is not sufficient to warrant the grant of special leave.  Special leave will be refused.

The Court will now adjourn to reconstitute.

AT 12.51 PM THE MATTER WAS CONCLUDED