Hawkins v The Queen
[1991] TASSC 108
•19 December 1991
105/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Hawkins v R [1991] TASSC 108; A105/1991
PARTIES: HAWKINS, Andrew John
v
R
FILE NO/S: CCA 82/1991
DELIVERED ON: 19 December 1991
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Underwood and Zeeman JJ
Judgment Number: A105/1991
Number of paragraphs: 24
Serial No 105/1991
List "A"
File No CCA 82/1991
ANDREW JOHN HAWKINS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
UNDERWOOD J
ZEEMAN J
19 December 1991
Orders of the Court
Appeal allowed.
Conviction quashed.
New trial orders.
Serial No 105/1991
List "A"
File No CCA 82/1991
ANDREW JOHN HAWKINS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
19 December 1991
For the reasons given by Zeeman J I am of the opinion that the appeal should be allowed, the conviction quashed and a new trial ordered. I also agree that there is no need to consider ground 2.
File No CCA 82/1991
ANDREW JOHN HAWKINS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
19 December 1991
I have read the reasons for judgment of Zeeman J with respect to ground 1. I agree with them and have nothing to add.
Ground 2 is an appeal against the learned trial judge's refusal to exercise his discretion in favour of the appellant to exclude evidence of admissions made by him on oath at his first trial. The ground complains about the admission into evidence of "the transcript of the appellant's evidence given at his first trial." The trial judge held admissible evidence of admissions made by the appellant on oath at his first trial. He made no ruling and was not asked to rule with respect to the manner in which proof of those admissions could be given. The transcript was admitted as an exhibit as a result of agreement between counsel and an admission made by the appellant.
At his first trial, the appellant took the unusual course of making an unsworn statement and giving evidence on oath; see R v Burles [1956] Tas SR 256. At the second trial, the Crown proposed to lead evidence of admissions made by the appellant in his unsworn statement and during his evidence on oath on his first trial. His counsel objected. The learned trial judge ruled that such evidence was admissible in law. Quite properly, no complaint is now made about that ruling. See Stewart v The King (1921) 29 CLR; R v Lang [1965] NSWR 1313; Wong Kam–Ming v The Queen [1980] AC 247; R v Mills [1986] VR 617. In the absence of the jury, the learned trial judge carefully examined almost 150 pages of transcript of the evidence given by the appellant on his first trial and ruled inadmissible those parts of that evidence that did not qualify as admissions made with respect to the issues then between the appellant and the Crown. At the conclusion of his ruling, the learned trial judge said:
"I haven't ruled, counsel will appreciate, upon the admissibility of the transcript as such, I've ruled upon the admissibility of the evidence which is proofed in the document that I have seen. It may be that you can work out some appropriate way of placing the material before the jury other than calling the transcribers or someone who was present at the first trial. But that's entirely a matter for counsel to consider."
There followed a brief adjournment. On the resumption of the trial, but still in the absence of the jury, counsel for the appellant asked the learned trial judge, in the light of the ruling given, to admit some other parts of the appellant's evidence on the first trial. His Honour acceded to the request. Pursuant to the provisions of the Evidence Act, s109 the appellant, by his counsel, then made certain admissions which established that the transcript of evidence was an accurate account of the evidence given on the first trial. With the concurrence of counsel for the Crown and counsel for the appellant, the learned trial judge admitted the unsworn statement and the transcript into evidence but directed that the exhibits not go into the jury room. Their contents were then read to the jury.
No complaint is made on this appeal about the reception into evidence of the unsworn statement. No error is alleged in the ruling that the material read to the jury was admissible as a matter of law. Ground 2 is confined to the proposition that the learned trial judge erred in failing to exclude the evidence of answers given by the appellant on his first trial on the basis that the prejudicial nature of the evidence far outweighed its probative value and its admission was unfair to the appellant. In argument, counsel for the appellant complained that it was unfair and prejudicial in that:
1It disclosed that, at the first trial, the appellant had given evidence on oath and this constrained him in the exercise of his option not to give evidence on his second trial.
2The jury could not observe the demeanour of the appellant and his cross–examiner at the first trial.
3There were lengthy gaps between some questions and the answers which are not apparent from the transcript.
4The manner in which the document was read out could influence the impact of the words on the jury.
There is no substance in the last three matters. It was not even argued that, if the jury had been able to observe the demeanour of the appellant, and/or if the jury had been able to hear lengthy pauses before answers were given, they would have gained an impression different from that conveyed by listening to the words read out by counsel for the Crown. In any event, the evidence could have been admitted by the jury listening to the tape recording of the evidence given on the first trial, suitably edited in accordance with the trial judge's ruling. This would have enabled the jury to hear the evidence from the appellant's own lips. The appellant consented to proof by reading from the document admitted into evidence. No prejudice is shown to have occurred from his adoption of that course.
The first matter of complaint is also without substance. As was pointed out by the learned trial judge in his ruling, the same submission was put and overruled in R v Mills (supra). At p619 Southwell J said
"I do not regard the fact that the jury may learn that the accused made an unsworn statement in the previous trial as being a comment prohibited by s399(3). However, as was indicated by me in discussion earlier, I think it would be desirable in the interests of fairness to see that the terminology used in explaining to the jury what this statement is, is not calculated to draw their attention to the choice that the accused person has as to whether she should stand mute, or make a statement, or give evidence."
A fortiori, in Tasmania, disclosure that an accused has given evidence on the first trial is not in itself a ground for later discretionary exclusion of admissions then made, for there is no equivalent to the Crimes Act (Vic) 1958, s399(3). It is common practice in this State for a trial judge to point out in his summing up that an accused person has three options in a criminal trial. This is often said in conjunction with a direction on the onus of proof for, the fact that an accused may say nothing, make an unsworn statement or give evidence, serves to reinforce the proposition that from first to last, the onus is on the Crown to prove the guilt of an accused beyond reasonable doubt. There was nothing unfair about the jury learning that the appellant gave evidence on oath at his first trial.
In any event, in this trial, the learned trial judge put the matter entirely beyond doubt when he gave the following direction to the jury:
"Now, you have also had evidence of what the accused said at his previous trial. You have had placed before you the unsworn statement that he made at that trial and you've also heard that he was cross–examined at that trial. Well now, we know he wasn't cross–examined at this trial. He did not go into the witness box and he was not cross–examined on this occasion so his unsworn statement has not been tested in that way. But what you must understand is this: the last trial was one thing, this trial is a whole new proceeding. We've got a new jury. We've got a different judge. Counsel might be the same and the witnesses might be the same but it is an entirely new proceeding and in any criminal trial an accused person has the entitlement to give his evidence if he chooses by putting in an unsworn statement and not being subjected to cross–examination on that document. That is a right that is clearly recognised by the law on any criminal trial and what I want to tell you is that it would be most unfair and wrong for you to draw any adverse inference against the accused because on this occasion he has chosen to give his evidence in that particular way. The law says he has that right and it would be wrong for you to assume that because he does not expose himself to cross–examination at this trial that it is in some way to be held against him. As you can see, it would be quite wrong for the law to give you an entitlement and then, because you exercised that entitlement, for a jury to regard that as, in some way, a matter that should be held against you in their final resolution of the case."
In my opinion, there was no error in the exercise of his Honour's discretion in refusing to exclude the admission into evidence of admissions made on oath by the appellant on his first trial and ground 2 fails. However, for the reasons expressed by Zeeman J with respect to ground 1, I would allow the appeal and order a re–trial.
File No CCA 82/1991
ANDREW JOHN HAWKINS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ZEEMAN J
19 December 1991
The appellant appeals against his conviction for murder. As amended, the grounds of appeal are expressed as follows:
"1That the learned Trial Judge erred in law by ruling inadmissible proposed evidence that the Appellant was suffering from a mental disease at the relevant time and the consequences flowing therefrom upon the basis that the Jury could not consider such evidence upon the issue of whether he had a specific intent to kill the deceased or to cause him to suffer bodily harm.
2That the learned Trial Judge erred in law in the exercise of his discretion by admitting into evidence the transcript of the Appellant's evidence given at his first trial on the grounds that:
(a) the admission of such evidence was unfair to the Appellant; and
(b) the prejudicial nature of the evidence far outweighed its probative value."
At the trial of the accused it was undisputed that the deceased, who was the appellant's father, had died almost instantly as a result of a bullet, fired from a rifle by the appellant, entering the deceased's heart. It was the Crown case that the appellant had committed a preplanned, cold blooded killing, although that was not the only basis upon which the case went to the jury. Both paras(a) and (b) of s157(1) of the Criminal Code were left to the jury. The case put forward by the appellant was that on the morning of the day upon which the deceased died the appellant had intended to commit suicide by shooting himself and that he had wished to commit that act in front of his father. In circumstances which it is not necessary to canvass, the appellant said that he had changed his mind about committing suicide and instead discharged the rifle in circumstances which resulted in the fatal wounding of his father. One of the issues which fell to be determined by the jury was whether the Crown had established the requisite specific intent required by paras(a) and (b) of s157(1) of the Criminal Code beyond reasonable doubt.
When counsel for the appellant opened his case at the trial (which was the second trial of the accused, the jury on his earlier trial having been unable to reach a verdict) he did so quite briefly. Relevantly, he had this to say:
"It should be apparent to you there is very little dispute between the Crown and the Defence as to the major facts and issues in this case, except for the state of mind of the accused man at the time he pulled the trigger on the rifle that shot his father. There is some confusion of some minor events – there is some loss of memory, which must have apparent (sic) to you already from the evidence including the evidence of the Unsworn Statement – cross–examination just read to you by my learned friends. The Defence case is that at the time of the killing, by reason of mental disease, and the Defence psychiatrist – we'll have our psychiatrist called, a Dr Sale, will give evidence of examinations of the accused, evidence you have heard in this case, and other matters which were taken into consideration, that at the time of the killing the accused man was suffering from a mental disease. That mental disease was based upon several factors including an unsatisfactory parenting arrangement he had throughout his life, problems between his parents, and of course the unfortunate attacks which were perpetrated on him by his father when he was a youth. You will hear evidence from both his mother and his step mother as well as Dr Sale. Now at the end of the day the Defence will say that they will prove to you – they will show to you two things, one, the accused man did not have the necessary state of mind or intention necessary to constitute the crime of murder. And those intentions of course have to be proved by the Crown beyond reasonable doubt. But when we rely on mental disease as His Honour will tell you towards the end of the case, the burden or the onus shifts to the Defence and you have to be satisfied on the balance of probabilities that firstly that the accused man did suffer from a mental disease or disorders which will be described to you by Dr Sale at the time of the shooting. And secondly that the shooting was done by reason of an impulse, which he lacked at the time, or power to resist, because of these mental diseases. Or and/or I suppose in combination with, the fact that his mental disease rendered him incapable of reason for some moderate degree of composure and calmness to the wrongfulness of the act. In other words he's incapable of understanding the true nature and the quality of his act."
As indicated by counsel's opening, Dr Sale was called. He gave some brief evidence, when another witness was interposed. Before Dr Sale could be re–called, it appears that counsel saw the learned trial judge in Chambers and that his Honour was told that the appellant no longer intended to raise the defence of insanity. Dr Sale did not return to the witness box. It appears that his Honour was informed that it was proposed to call a psychiatrist, Professor Jones, to give evidence said to be relevant to the question as to whether the appellant had the requisite specific intent, but being evidence which standing alone would not be capable of establishing a defence under s16 of the Criminal Code. The discussion resumed in Court when his Honour adverted to the way in which the appellant's case had been opened and expressed a reluctance to resolve legal issues until he knew what evidence was to be adduced. His Honour quite correctly observed that it was premature for a discussion to take place about the various bases upon which the jury might be directed until all the evidence was in. Counsel for the appellant then confirmed that he proposed calling Professor Jones. He said that Professor Jones had provided a report indicating that at the time of the shooting the appellant was suffering from a mental disease, although Professor Jones "was not of the view that it fitted into s16, as such, but he was of the view that there was no specific intent present at the time of the shooting ... because of the disorder in the mind at the time." His Honour quite correctly said that he could not see how he could decide how the case would ultimately go to the jury until the appellant had called such evidence as he saw fit to call. He expressed the view that he ought to take the evidence on the voir dire. Ultimately Professor Jones was not called on the voir dire, nor was his report put before the learned trial judge. The learned trial judge was persuaded to rule on the admissibility of the evidence proposed to be given by Professor Jones on the basis of a document, described as being an abstract of Professor Jones' conclusions, which was in the following terms:
"1The accused was suffering from an adolescent identity disorder at the time he shot his father.
2The abovementioned disorder amounted to a mental disease for the purpose of Section 16 of the Criminal Code.
3The accused was not affected with the abovementioned mental disease to such an extent as to avail him of a defence pursuant to Section 16 of the Criminal Code.
4Matters considered by professor Jones in reaching the abovementioned conclusion included:
(a) the accused's upbringing
(b) the problems he was experiencing with his girlfriend
(c) sexual abuse.
5The accused was very likely to be thinking in terms of suicide over the period in question.
6If the accused was about to commit suicide immediately prior to the shooting of his father, his capacity would be substantially reduced in relation to his ability to:
(a) think logically
(b) form a specific intention
(c) foresee the consequences of his actions."
In addition to that abstract, other material was put before the learned trial judge. The substance of that material was as follows:
(a)That for the purposes of obtaining a ruling on the admissibility of Professor Jones' evidence, the appellant admitted that he had intentionally fired a loaded rifle in the direction of the deceased.
(b)That the foundation for the view expressed in para5 of the abstract was that at the relevant time the appellant was suffering from an adolescent identity disorder amounting to a mental disease.
(c)That the foundation for the view expressed in para6 of the abstract was that at the relevant time the appellant was suffering from an adolescent identity disorder amounting to a mental disease and that he was about to commit suicide.
It is plain that if Professor Jones had been called to give evidence he would not have been permitted to do so in the terms of the abstract. The conclusions expressed in paras2 and 3 were not conclusions which Professor Jones would have been permitted to express. They were matters for the jury, save that whether any disorder the subject of evidence was capable of amounting to a mental disease for the purposes of s16 of the Criminal Code or capable of constituting a defence under that section were matters for the trial judge. The material which formed the basis upon which Professor Jones came to hold the view expressed in para1 of the abstract was not made clear. Certainly para4 fell far short of making that clear. Whilst the specific matters referred to in that paragraph had been the subject of evidence at the trial, the abstract did not disclose whether the particular material considered by Professor Jones was the same material as that disclosed by evidence. In any event, para4 did not purport to refer to all the matters considered by Professor Jones. I make those observations as they are indicative of the difficulties faced by the learned trial judge. In essence, he was asked to rule upon the admissibility of evidence proposed to be given by Professor Jones without having heard that evidence and without having been told in any real sense what evidence he was expected to give. I make one further observation. The appellant made an admission for the purpose of the ruling. I doubt whether it is open to an accused person to take such a course. In any event such an admission is of no value as it results in a ruling based upon a hypothetical state of affairs.
The learned trial judge was asked to rule on the admissibility of Professor Jones' evidence on one narrow ground, namely whether that evidence was admissible on the issue of whether the Crown had established beyond reasonable doubt that the appellant had the requisite specific intent at the time he discharged the rifle. The learned trial judge ruled that the evidence was not admissible. That ruling was given upon the basis that his Honour concluded that the evidence was not admissible for the purpose contended for by counsel for the appellant. In holding that the evidence was inadmissible for that purpose, the learned trial judge proceeded in accordance with dicta appearing in Williams v The Queen [1978] Tas SR 98, per Neasey J at p105 and per Cosgrove J at p115. His Honour did not consider whether the evidence was admissible upon any other basis and he was not invited to do so.
The appellant submitted that those dicta appearing in Williams v The Queen (supra) were wrong insofar as they suggest that evidence of the type proposed to be led from Professor Jones could not be relevant to the issue as to whether an accused person had the requisite specific intent. In my view, the occasion to consider such a submission does not arise in this case. It may be that those dicta are too wide and that they will require reconsideration at some future time. I need not express any view as to that. The primary issue in this case is whether the learned trial judge erred in ruling the evidence of Professor Jones to be inadmissible. No one knows what evidence Professor Jones would have given had he been called on the voir dire and cross–examined. Had the evidence been taken on the voir dire, then its relevance to some issue in the trial could have been considered properly. Such a consideration might have required a consideration of the relevance of some or all of that evidence to the question as to whether or not the appellant had the requisite specific intent. In turn that might have required a consideration of the dicta in Williams v The Queen (supra). Alternatively, the evidence might have been admitted as being relevant to some other issue. In that event the learned trial judge would have been required to consider as to how he would instruct the jury as to the use they could make of the evidence. In the circumstances of the present case it is dangerous to embark upon a consideration of the issues upon which Professor Jones' evidence might have been relevant. It would amount to little more than an academic exercise unrelated to the facts of this case. It would amount to considering Professor Jones' evidence without any clear understanding as to what it might have been.
In considering whether or not evidence is admissible, one of the matters which requires consideration is that of relevance. Evidence is relevant if it goes to an issue on the trial. Notwithstanding the appellant's disavowal of a defence of insanity, once evidence of a mental disease within the meaning of s16 of the Criminal Code is given, a defence under that section becomes an issue. Evidence capable of establishing that at the relevant time the appellant suffered from a mental disease within the meaning of s16 was plainly admissible if sought to be led by the appellant. The use which could be made of that evidence was a matter for directions to the jury. Merely because it was expected that Professor Jones would also have expressed an opinion likely to lead the jury to the conclusion that the effect of such mental disease was such as not to give rise to a defence under s16 did not make the evidence any the less admissible. Once an accused person adduces some evidence of some matter relevant to s16 he makes a defence under that section an issue on the trial. The fact that the appellant had evinced an intention to rely upon that evidence for a purpose which, in the view of the learned trial judge, was not permitted by law, did not make the evidence any the less admissible.
The essence of the first ground of appeal is that the learned trial judge erred in ruling the proposed evidence of Professor Jones to be inadmissible. In so ruling his Honour erred on two bases, namely:
(a)He ought not to have ruled at all without knowing what the evidence of Professor Jones was to be. The form of abstract as supplemented by the matters to which I have referred fell far short of that.
(b)The abstract was indicative of the evidence which it was expected Professor Jones would give being relevant to a defence under s16. If it was relevant to that issue it was admissible.
Counsel for the appellant made no submissions as to what ought to occur if the court were to conclude that the evidence was wrongly excluded without expressing a view as to whether the evidence was capable of being relevant to the issue of whether the appellant had the requisite specific intent at the relevant time. Counsel for the respondent submitted that in that event the proviso ought to be applied. The absence of a miscarriage of justice was said to arise from the following: that the learned trial judge ruled upon the limited material before him at the express invitation of counsel for the appellant and that the appellant had not been deprived of any defence fairly open to him which he wished to raise.
In my view, this is not an appropriate case for the application of the proviso. The reasons for the learned trial judge falling into error ought not to affect the disposition of this appeal. The result of the learned trial judge's ruling was that Professor Jones was not called. The express desire of the appellant was to call him, even if, contrary to the wishes of the appellant, his evidence would have resulted in the learned trial judge leaving open a defence under s16. Once the learned trial judge had given his ruling, no attempt was made to call Professor Jones, the appellant's advisers no doubt taking the view (possibly erroneously) that the matter had been concluded against the appellant by that ruling. It was not unreasonable to so construe the effect of the ruling. More fundamentally, from the appellant's point of view, the procedure adopted by the learned trial judge has effectively precluded the appellant from having the relevance of evidence of a mental disease falling short of constituting a defence under s16 determined by this Court. Had the learned trial judge permitted Professor Jones to give evidence upon the basis that it went to a possible s16 defence, it would then have been open to the appellant to submit that the jury ought to be directed that the evidence was relevant to the issue of specific intent. Had the learned trial judge declined to so direct the jury, then the issue which the appellant wishes to have determined could have been determined by this Court upon the basis of Professor Jones' actual evidence. The appellant has been deprived of that opportunity. The material placed before the learned trial judge was so deficient that that matter cannot be properly determined now. In those circumstances it cannot be said that no substantial miscarriage of justice has occurred. In order to conclude that there has been no substantial miscarriage of justice I would need to be persuaded that the evidence of Professor Jones, had it been given, would not have affected the result of the trial. As I do not know what evidence Professor Jones might have given and as it may have gone one or more issues which arose at the trial I am not so persuaded.
Having regard to those conclusions, I do not consider it necessary to consider ground 2. If successful, it could do no more than require that there be a new trial. For the reasons which I have expressed in relation to ground 1, I am of the view that the appeal should be upheld, the conviction quashed and a new trial ordered.
0