Gemmill v The Queen

[2005] HCATrans 307

[2005] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M110 of 2004

B e t w e e n -

NOEL LAURENCE GEMMILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 APRIL 2005, AT 10.37 AM

Copyright in the High Court of Australia

MR G.J. THOMAS, SC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by J.G. Thompson)

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MS S.E. PULLEN, SC, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Thomas.

MR THOMAS:   Your Honours, the application stems from a conviction for murder.  The facts are set out in the application book, the summary of arguments, to a large extent, but if I could just commence by taking the Court to, in point form, the issues for the jury to resolve.  This murder was of the wife.  The husband, Gemmill, at the time was suffering from depression, and the central important issue for the trial, for the jury, was the question of mental impairment.  A psychiatrist was called for the Crown, a psychiatrist for the defence.  In fact, the only witness for the defence was Dr Walton, Dr Forrester for the Crown.  Both psychiatrists agreed that depression was at work both before and after the killing of the wife, but where they differed was on the question of the severity of that depression, whether or not it supported mental impairment under the Act and the question of reasoning was looked to.

Now, can I say that the evidence disclosed for each psychiatrist that each of them saw the applicant, interviewed the applicant.  Each reviewed medical files that went to the illness, the depression.  Each saw a video of a videotaped interview of the applicant by police.  Each, in global terms, considered the evidence that was placed before the jury, that is, they had first up the video to look at and each was examined in-chief and cross‑examined as to what the evidence was and where that fitted into the scheme of their opinions.  So that what these two psychiatrists have done, effectively, is looked at the same evidence, by and large, that the jury did.  Each of them considered the law, including the standard of proof, and came to their opinions.

Now, the learned trial judge, in charging the jury, did it in three stages.  He first spoke generally and, at pages 15 to 16 of the application book, what might be called a general charge in relation to expert witnesses was given.  In other words, it is submitted that while general matters were covered, those general matters were not at all related to the facts before the jury.  His Honour then continued, as a second part of his charge, to summarise the evidence, which he did fully and particularly so for the psychiatrists.  In other words, their evidence was repeated, summarised in depth for the jury’s consideration.  And the third stage of the charge was the summary of the arguments mounted both for the Crown and the defence, which included, of course, the summary of the arguments as they related to the expert evidence. 

So it is plain, ultimately, that there is a dispute between experts, in this case, psychiatrists.  Something of a gloss, perhaps, from other experts by reason of being psychiatrists, in that the psychiatrists have looked at the evidence that the jury itself was considering and each came to a conclusion or an opinion based on that evidence, but also based upon their experience and training. 

Now, could I then invite the Court to consider what happened at the completion of the charge.  There were a number of questions asked by the jury and those questions are conveniently set out in the judgment below at page 194 of the application book, if I could just take the Court briefly to the sequence of questions.  At about line 43 or 44 the sequence commences, and the first question on the second last line of the page:

“Re Dr Walton, more probable than not, can you explain the statement, in relation to our conclusions?”

The question of the standard is explained and at line 10 – perhaps I can indicate the direct quote:

This is a trial by a jury, not by experts.  In the end, you have to form your own conclusions –

is my summary of what the jury was then told. 

Question 2 asked “Life experience, re [sic] in using this in our conclusion in relation to evidence”.

Common sense, experience of life, is available and should be used by the jury, my summary of that answer.  “More probable than not” is Question 3 at line 18 on the page.  I will pass by that to Question 4:

“Can a member of the jury rely on Dr Walton’s evidence rather than Dr Forrester’s evidence, re Dr Walton was treating the accused from shortly after the event and Dr Forrester only saw him once?”

Now, his Honour here – in my submission, this is the high point in terms of any direction the jury has got for this applicant in terms of how to resolve the conflict between those two psychiatrists.

HAYNE J:   But what is the trial judge, do you say, meant to have told the jury?

MR THOMAS:   He is meant to have said that in terms of resolving that conflict between expert witnesses, you would need to look at what those witnesses did.  In other words, they looked at the same evidence you did as a jury, but they have an extra gloss on that because what they have done is they have looked to depression, which you do not know much about, that is what their expertise runs to and it is not yours.  In other words, your common sense and experience of life might not help you with the question of the progress of depression and when one witness says, Dr Walton, that depression fluctuates and you can sink into a deeper depression such that mental impairment is made out, you need to look at what his experience is in terms of that opinion and his experience is that he has seen thousands of cases and 550, was it, murderers.  That is his experience.  That is what he brings to that opinion.  Now, you can reject that ‑ ‑ ‑

McHUGH J:   I appreciate that, but Dr Walton also conceded, did he not, that the fact that he could not see any rational reason for the killing led him to conclude that the applicant had been mentally impaired at the time?

MR THOMAS:   That is so, your Honour.

McHUGH J:   He also said, did he not, that it would be irrational to kill someone over a dispute about jewellery?

MR THOMAS:   He did.

McHUGH J:   He conceded that, ultimately, that was a question for the jury.

MR THOMAS:   He did that, your Honour, but his concession is based on not just common sense, experience of life, he is much broader, and the jury was left unassisted on what it was that Walton was saying, your Honour.  I do not say that the jury could not have convicted here.  I say it is unassisted, and so unassisted that the trial miscarried.

McHUGH J:   I understand that, yes.

MR THOMAS:   I go on to say that the reason why insufficient assistance was given to this jury is that there is a general point that can be found in Velevski that it is unclear what a jury should be told.

McHUGH J:   But what you are putting here is different from what was put before the Court of Criminal Appeal, was it not?  In the Court of Criminal Appeal the grounds were that the verdict was unreasonable and could not be supported, having regard to the evidence of Dr Walton and Dr Forrester, and that the judge erred in admitted evidence of the phone call.  You are now seeking to put it on a different ground, on a lack of direction ground.

MR THOMAS:   Your Honour, there was a ground in relation to direction, I am sorry.

McHUGH J:   What I had in mind was what appears at page 190 of the application book.  Was another ground added at some stage?  There is a ground 3, I think, appears from the judgment, yes.

MR THOMAS:   Your Honour, I cannot recollect, I did ‑ ‑ ‑

McHUGH J:   Yes, at page 196 it would appear that a ground 3 – yes, it says in the judgment “two grounds . . . were argued, a third ground being abandoned”.  So ground 2 was abandoned and ground 3 must have been added, that the judge erred and “he gave no or insufficient directions to the jury in relation to” ‑ ‑ ‑

MR THOMAS:   Your Honour, I confess, I can remember drafting such a ground, but I cannot remember what happened to it.

HAYNE J:   It is one of those chilling moments, Mr Thomas.

MR THOMAS:   My life flashed before my eyes then, your Honour, that is certainly true.  So, your Honour, I am hoping that is resolved that way, without much assistance from me, but I am hoping that is then resolved.

McHUGH J:   Yes.

MR THOMAS:   The point of general application really goes to – I am looking to Velevski in plain terms to say, well, look, here is guidance as to what should have been given to this jury as a base, but also there is a real question left unresolved when Velevski is analysed.  So that I say, for this applicant, when Velevski is analysed as to what is there, it was insufficient, the direction given, but there is also an unresolved question when Velevski is looked to and if I can proceed to Velevski I will do that now.  That is at tab 8 of the authorities.  Three judgments in Velevski.  Chief Justice Gleeson and Justice Hayne the first of the judgments and if I could take you to paragraph [36] at page 242 of the report.  Paragraph [36] is the warning given in Velevski.  Now, that warning is in these terms:

in assessing the expert evidence, it was proper for [the jury] to bear in mind that they lacked the scientific knowledge and experience of the experts and that insofar as their opinion depended on scientific medical or psychological knowledge (as opposed to common experience or common sense) “it would not be proper to find an issue against the accused by accepting one body of expert evidence and rejecting another unless there was good reason for doing so”.

Now, let me just stop there.  Their Honours pass on from paragraph [36] but it is looking to that warning as being appropriate in the circumstances of Velevski, I would submit.  And I go past that, when you look at Justice Gaudron’s look at that particular warning, she says it was both appropriate and necessary. 

This applicant does not have that warning.  Does not have it.  That is for this applicant, but the matter of general application I am looking to is, really, what is the warning that is required in these circumstances?  What should it involve?  And here, if I can keep with the judgment of the Chief Justice and Justice Hayne, at paragraph [37] their Honours say, well, look, this is not a question of such sophisticated, complex evidence that it could not be evaluated by the jury.  There was a question of fact to be determined, that is, whether murder/suicide was open or not, what weight you would give to that.  I want to take the Court to [38] and here is very directly where I am looking to in terms of the matter of general application ‑ ‑ ‑

McHUGH J:   Well, I know.  I think we are familiar with Velevski, but what you really have to deal with is paragraph 83 of the Court of Appeal’s judgment in this case.  That is the crux of the matter, because they distinguish Velevski.

MR THOMAS:   Your Honour, can I say there, your Honours, that it was never an issue – the strength of the case that was needed to be put was never an issue for that appeal or this application.  In other words ‑ ‑ ‑

McHUGH J:   But what their Honours say is:

There could have been not the slightest doubt in the minds of the jury as to what the issues were in the trial, nor as to what factors caused the divergence of opinion between the psychiatrists –

and for that reason they did not think it was the sort of case falling into the Chamberlain type category, where you have complex scientific evidence involved.

MR THOMAS:   That, in my submission, is too simplistic by far and that is why I was looking to what the psychiatrists have done.  True it is they have looked at the evidence, but they have looked at it far more in depth and they have brought their experience and knowledge to bear.  Now, that is what the warning is about and it is needed, and if here, in this case ‑ ‑ ‑

McHUGH J:   Yes, I know, but that is why I put to you about Dr Walton’s concessions and what was the basis of his opinion.  I mean, to a large extent, they turned on questions which would well be within the jury’s competence to adjudge.  For instance, whether people are likely to kill over a dispute about jewellery.  Question of violence, question of anger.

MR THOMAS:   The major point of difference, your Honour, was the likely progress of – what is open in terms of the progress of that depression and whether it fluctuated, I think.  That was a big point of difference between the two psychiatrists.  Now, that is not easily dealt with by the jury and it is significant.  That is close to the centre of what was important for this applicant to have considered by the jury.  Now, what assistance does a jury get from their common sense and experience of life in that area?

McHUGH J:   But the Court of Appeal in this case seem to have taken the view, particularly in paragraph 82 and also 83, that this was not a complex case.  They said:

the evidence in this case was no different in character to that which juries have commonly addressed in trials where insanity or mental impairment was in issue.

So it is a one‑off case, from their point of view.  They are not saying that in other cases, as was said in Velevski, that you need a very elaborate direction to the jury about evidence.

MR THOMAS:   But neither, your Honour – I am not, in this application, seeking to challenge Chamberlain. 

McHUGH J:   No, I know.  You rely on it.

MR THOMAS:   I do, your Honour, but I repeat and I can only repeat, your Honour, their Honours below have just ignored what, I submit, is important and not able to be dealt with by common sense and experience of life.  I know it is a simple point, but it comes down to that, your Honour.

McHUGH J:   No direction was sought at trial about this.

MR THOMAS:   No, it was not, your Honour, and I agree with that and that is something I need to first up say clearly but get over, having conceded that, your Honour.  Your Honour, again, I repeat, it is a simple point in the end.

McHUGH J:   I know.

MR THOMAS:   But there is complexity behind it, that this jury was left without necessary assistance, it is argued.  I argue that, really, the reason for it might be that there is not a clear enough direction from a court such as

this Court such that a trial judge can look to a judgment that provides proper guidance.  Now, your Honour, I have attempted to meet what fell from your Honour, but I cannot improve on what I have said there, I do not believe. 

McHUGH J:   Yes, well, you have been very helpful so far, but you still have some time.  Not much.

MR THOMAS:   If your Honour pleases.  In fact, your Honour, I have completed effectively what I wished to place before the Court.

McHUGH J:   Thank you very much.  The Court need not hear you, Mr Coghlan.

We are of the view that there has been no miscarriage of justice or no arguable case of miscarriage of justice in this case.  Accordingly, the application for special leave must be refused.

The Court will now adjourn to reconstitute.

AT 10.56 AM THE MATTER WAS CONCLUDED