Gieselman v The Queen

[1997] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S51 of 1997

B e t w e e n -

MELISSA GIESELMANN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 10.26 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear in this matter with my learned friend, MR P.R. ZAHRA.   (instructed by Arden Associates)

MR G.S. HOSKING, SC:   May it please your Honours, I appear for the respondent with my learned friend, MR A.M. BLACKMORE.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Norrish.

MR NORRISH:   Your Honours, in this matter there is an application for an enlargement of time.

BRENNAN CJ:   What do you say about that, Mr Hosking?

MR HOSKING:   I have no objection to that, your Honour.

BRENNAN CJ:   Time will be enlarged.

MR NORRISH:   As your Honours please. Your Honours, in this matter it is submitted that there is a miscarriage of justice by reason of the following errors. The learned judges of the Court of Criminal Appeal in different ways wrongly interpreted the relevant terms of section 23A of the Crimes Act providing for the defence of diminished responsibility.  Secondly, that they respectively misapplied appropriate principle in relation to the operation of that particular section and that, in the terms of their judgments, there are in material respects irreconcilable conflicts in the judgment.  Thus, in combination, giving rise to matters of general importance such as to warrant a grant of special leave.

Section 23A of the Crimes Act is a defence where the applicant bore the burden of proof and has effectively three essential elements that need to be established.  One is the establishment of a relevant abnormality of mind; secondly, the cause of that abnormality of mind must be established; and thirdly, there must be established on the evidence substantial impairment of mental responsibility for the acts giving rise to the charge of murder.

BRENNAN CJ:   It is the third one of those that you came to grief on by the majority judgment in the Court of Criminal Appeal.

MR NORRISH:   Your Honours, one of the difficulties with the judgment of the Court of Criminal Appeal is that Justices Mahoney and Sully came to different conclusions and Justice Dunford agreed with both of the judgments.  In our respectful submission, the applicant came to grief in respect of Justice Mahoney’s judgment in respect of the issue of abnormality of mind and our submission would be that his Honour wrongly interpreted what abnormality of mind meant for the purposes of the operation of the section and, also, having regard to the relevant evidence in the trial.

Abnormality of mind has been the subject of discussion by courts in New South Wales and elsewhere and there can be no doubt that an abnormality of mind is a condition of mind which is different and which reasonable persons would regard as abnormal.  We respectfully submit that the approach of Justice Mahoney was to wrongly consider material that was relevant to the third aspect of the defence in determining whether or not there was an abnormality of mind established by the evidence.

BRENNAN CJ:   Perhaps it would be more accurate to say that his Honour was considering whether or not the abnormality of mind that is relevant for the purposes of section 23A is one which has the effect which is referred to in the third element. But however that may be, in the circumstances of this case, what was the element of mental responsibility which the accused’s mental condition deprived her of substantially?

MR NORRISH:   The capacity to make rational judgment.

BRENNAN CJ:   What is the element of mens rea that that refers to?

MR NORRISH:   Your Honours, I suppose it comes back again to the approach that Justice Mahoney had to the issue of substantial impairment.

BRENNAN CJ:   Answer my question, if you would not mind, because that is the problem that concerns me and that is that, in this case, whatever might have been her condition of mind, there does not seem to have been any absence of appreciation of the nature or quality of the act or any limitation of her capacity to control what she was doing.

MR NORRISH:   Yes, but that test does not limit the application or the consideration of the issue of whether there has been substantial impairment of mental responsibility for her acts.  It does ‑ ‑ ‑

BRENNAN CJ:   How much further does it go?

MR NORRISH:   Our submission would be that substantial impairment of mental responsibility is concerned with the issue of the relationship of the abnormality of mind with the capacity of a particular person to either control or appreciate their acts and the consequences of their acts.  It is not necessarily limited ‑ ‑ ‑

BRENNAN CJ:   Be it so.  To control, in this case, there was a multiple stabbing and a suffocation.  Was there any suggestion that somebody could not resist the physical movements that were involved in those acts?

MR NORRISH:   There was no suggestion of that, your Honour, but that is not, in our submission, the relevant consideration in determining whether there has been substantial impairment of mental responsibility.

BRENNAN CJ:   Why not?

MR NORRISH:   Because the provision, section 23A, requires a connection to be established between the abnormality of mind and the conduct of the particular accused person. It does not, in establishing that, turn upon the question of whether the particular person could or could not appreciate the consequences of their acts or whether they determined or could appreciate that what they were doing was wrong because, in our submission, the defence of diminished responsibility is a defence which enables a jury to take into account a mental condition which falls short of what would necessarily be required to establish the defence of mental illness.

TOOHEY J:   But since the onus lies upon the accused, what is it that has to be made out, in your submission, to meet section 23A?

MR NORRISH:   In our submission, what needs to be made out, firstly, is the establishment of an abnormality of mind by a particular course.

TOOHEY J:   Sorry, I was directing my question to the last element of the defence.

MR NORRISH:   That the acts of the particular accused person are connected with, and a result of or a consequence of, the operation of the abnormality of mind and affected or in some way - to use the expression “substantially” ‑ impaired the responsibility of the person which would otherwise make them liable for the crime of murder.  You see, the intention to kill or inflict grievous bodily harm, if they be the elements relied upon by the Crown, need be established before the defence is considered by the jury.   What the jury have to consider is not the question of whether the mental state of the particular accused person in any way affected their specific intention, going back to the question of mens rea, because a person suffering from a relevant abnormality of mind might have a very clear intention to kill or inflict grievous bodily harm and, in that sense, that intention may well be, if I could use the expression, a rational state of mind in the sense that the person appreciates that they are doing what they are doing with the necessary intention ‑ ‑ ‑

BRENNAN CJ:   Mr Norrish, I have always understood that sections such as 23A were introduced for two purposes:  one was to relieve the necessity of proving the mental disease to the degree or to the extent that was required by the common law in relation to the defence of insanity or, in the case of the Codes, the mental illness that was required under those provisions.  The second was to provide a let out or an amelioration of the liability to conviction for murder at common law in relation to uncontrollable impulse. 

MR NORRISH:   With respect, I would submit to your Honour it is not as limited as being concerned with the issue of uncontrollable impulse.

BRENNAN CJ:   Put it, if you like, an absence of a capacity to will the act or to form a general intent.  Put it whichever way you like.  But what case says that it goes beyond that?

MR NORRISH:   With respect, if I could take your Honours to Tumanako (1992) 64 A Crim R 149, if I may, as an example of where the issue is discussed. The relevant passage of the judgment of Justice Badgery‑Parker, which involves a discussion of the operation of the section, appears at pages 160 to 161. Their Honours discuss Justice Glass’ judgment in Purdy at page 160 at about point 4.

TOOHEY J:   This sort of discussion really goes to the weight to be attached to medical evidence and the extent to which the jury can use their own commonsense.  So it does not really come directly to the point that we are discussing at the moment, does it, as to what is the impairment of mental responsibility to which the section refers and which the accused must establish.

MR NORRISH:   Could I take your Honours perhaps to the judgment of Justice Mahoney because he specifically dealt with the issue of what substantial impairment of mental responsibility meant at page 137 of the application book.  It may well be, your Honours, that in fact detailed analysis of what it means in terms of whether it is a matter restricted to the issue of irresistible impulse or has a wider application has not been properly examined.  But, in any event, at the top of page 137, his Honour said this:

I come now to the significance in the statutory formula of the phrase “substantial impaired his mental responsibility for the acts or omissions ...”.  The meaning of “responsibility” in this context is not clear.  The term “responsible” ordinarily denotes a liability to be called to account for something, in the sense of being legally, socially or morally accountable for what has been done.  In that sense, the term involves a judgment as to how far the person in question should be held accountable for what she has done.

However, it is sometimes used to mean “capable of rational conduct”;.....Used in that sense, it involves not a normative judgment relating to accountability based upon legal, social or moral grounds, but to the more objective capacity to act rationally.

If, in s 23A(1), it is used in the former sense, then it was for the jury to make the judgments involved, the judgment of how far she should be held accountable for what had been done and how far her abnormality of mind should, if at all, be held to impair or reduce her accountability for it. In my opinion the phrase “his mental responsibility ...” is directed essentially to the latter concept. The statutory provision requires the tribunal to make a judgment as to the extent to which the “abnormality of mind” has impaired her mental functioning and so has impaired her capacity to act rationally. For this provision to apply that capacity must have been “substantially” impaired. If it was so impaired, she is not to be convicted of murder.

One of our submissions in relation to this matter is that the definition, if I could use that expression, that his Honour gave to the expression “substantially impaired his or here mental responsibility for the acts” is too limited and that ‑ ‑ ‑

BRENNAN CJ:   Too limited?

MR NORRISH:   Yes, your Honour.  We would respectfully submit that the former definition, the one that his Honour rejected, is the more appropriate definition because, consistent with authority, the issue falls to be considered as to whether a jury, having regard to the facts of the case, knowing that the facts of the case otherwise establish murder, might however return a verdict of manslaughter on the basis that the abnormality of mind of the particular person had a relationship to the conduct of the person such as to reduce their liability from murder to manslaughter.  In our submission, the reliance upon the simple proposition of objective capacity to act rationally is not in keeping with the purpose of the provision and is much more limited than the former definition that his Honour provided.

To take up the point that your Honour the Chief Justice raised, it is not a question of irresistible impulse.  We would respectfully submit that with regard to what their Honours found, particularly Justice Sully, but also referred to by Justice Mahoney concerning the surrounding circumstances of the matter, which is a matter that has been referred to in Matheson and Walton as relevant to a jury’s consideration, all those matters may well be themselves symptoms or evidence of the abnormality of mind which is relied upon by the defence to connect the conduct of the accused with the consequences.  The facts of the matter are that ‑ ‑ ‑

BRENNAN CJ:   I see the force of what you are putting.  But if that is right, abnormality of mind might be constituted by an entire absence of moral sense. 

MR NORRISH:   In our respectful submission, that was one of the aspects of Justice Mahoney’s judgment where we submit he was in error.  The absence of moral sense was an aspect of her capacity to form rational judgments.  That, in our respectful submission, is a consequence or a symptom of the abnormality of mind.  The abnormality of mind was the borderline personality disorder.  I appreciate it is a psychiatric label but it is the condition which has the relationship to the aetiology which is required under the section.  Could I just take your Honours to Justice Sully’s remarks on this matter.

BRENNAN CJ:   Yes.

MR NORRISH:   At page 177 of the application book - and in this respect this is where we say the judgments of the two learned judges are irreconcilable.  At line 25, after reviewing the evidence, his Honour Justice Sully said this:

I can see no rational basis upon which the jury might have rejected, on a balance of probabilities, the proposition that the appellant was, at the time of the killing, suffering from an abnormality of mind in the form of a borderline personality disorder, deriving from injury in the form of gross physical and emotional abuse extending over many years, including some the appellant’s most important formative years. The expert evidence at trial, insofar as it deals with these components of the section 23A partial defence, was, in my opinion, all one way. I can see no rational basis upon which its quality and weight might have been rejected by the jury.

Justice Mahoney, if I can ‑ ‑ ‑

BRENNAN CJ:   We understand that there was the conflict of view between those two judges.  But in so far as Justice Sully’s judgment is concerned, it then proceeds to analyse the elements taken from Walton Case and finds against the argument for which you are now contending.

MR NORRISH:   Yes, in ‑ ‑ ‑

BRENNAN CJ:   Before you leave this passage, what do you say then about that passage of Justice Sully’s judgment?

MR NORRISH:   We say that passage is absolutely correct.

BRENNAN CJ:   Not the passage you have just cited, the part that follows; that is, the third element consideration.

MR NORRISH:   The third element for consideration, as addressed by his Honour Justice Sully - perhaps if I could take you to one passage of it, if I may, at the bottom of page 179 of the application book.  Perhaps I should read the full passage.  This is at line 27:

In my view, the jury might the more readily have rejected the hypothesis of impulsiveness, had they accepted Dr. Westmore’s evidence, - as, for all I know, they might well have done, and as they were plainly entitled to do.  Dr. Westmore gave evidence that the appellant was not psychotic; that she was not out of touch with her environment; that there was not anything indicating to him that her capacity to control her actions had been overwhelmed; and, very importantly in my view, that she was in control of her actions albeit she had no, or no adequate, moral sense capable of blocking her from actually putting her plans into effect.  It would nor surprise me that a jury, acting reasonably upon proper directions, would see in this evidence ample confirmation of what their collective common sense and experience might well have suggested in any event, namely, that it was the appellant’s moral sense, rather than her mental responsibility, that was substantially impaired.

Now, in our submission, firstly, the absence of moral control or, as it has been called, the appellant’s moral sense was, on the evidence from the experts, an aspect of her incapacity to make rational judgment.  And where his Honour relies upon Walton and Matheson in so far as it states that juries must approach the matter in a commonsense manner, having regard to all the surrounding circumstances, we simply say this, that having regard to the evidence at trial, all the surrounding circumstances of the matter, such as suggested planning and conduct after the event, were not inconsistent with the relationship of her conduct with the existence of the borderline personality disorder which was the abnormality of mind. 

In so far as his Honour seeks to distinguish between moral sense and mental responsibility, it was in fact her moral control as an aspect of her capacity to act rationally which was the very matter that affected and, in our submission, substantially impaired her mental responsibility for her actions. 

That was the very issue in the case and in so far as his Honour seeks, by reference to the evidence, to suggest that the evidence did not, if one has regard to Dr Westmore, support the issue of substantial impairment, we suggest that his Honour is wrong.

There is one other aspect of Justice Sully’s judgment which I may briefly refer to.  At page 176 of the judgment his Honour cites a judgment of Justice Hunt in a matter where the defence of diminished responsibility was first raised on appeal.  The relevant passage of Justice Hunt that he approves of is as follows, page 176 line 8:

Whether that impairment to the accused’s mental responsibility for his actions may properly be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession.  That is a task for the tribunal of fact, which must approach that task in a broad commonsense way.  It involves a value judgment by the jury representing the community, not a finding of medical fact or opinion.

It is a matter for the jury to make a determination as to whether that is established or satisfied by a particular accused, but it is a matter for medical opinion to explain to the jury the relationship of particular conduct to the particular abnormality of mind which is identified as existing at the time of the acts which give rise to the charge of murder.  We respectfully submit to the Court, in that respect, his Honour Justice Sully was wrong to determine, if he did so determine, that the medical evidence had no role to play in the establishment of that part of the defence.

May it please the Court.

BRENNAN CJ:   Thank you, Mr Norrish.  We need not trouble you, Mr Hosking.

The conclusion reached by the Court of Criminal Appeal was that the jury was entitled to reject the application of section 23A of the Crimes Act 1900 (NSW).  Although the reasons assigned for this conclusion differ, the conclusion is not attended with sufficient doubt to warrant a grant of special leave.  For that reason, special leave will be refused.

AT 10.48 AM THE MATTER WAS CONCLUDED