Heffernan v The Queen

[2006] HCATrans 350

[2006] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2005

B e t w e e n -

ANDREW CRAIG HEFFERNAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW ACJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2006, AT 10.15 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Northern Territory Legal Aid Commission)

MR W.J. KARCZEWSKI, QC:   May it please the Court, I appear with my learned friend, MR N. ROGERS, for the respondent.  (instructed by Director of Public Prosecutions (Northern Territory))

GUMMOW ACJ:   Yes, Mr Grace.

MR GRACE:    Your Honours, in Kesavarajah and in Eastman this Court accepted that the question of fitness to plead or fitness to stand trial stands outside the adversarial process of the criminal trial. After enactment in 2002, section 43N of the Criminal Code (NT) gave statutory recognition to that concept by allowing the court of its own volition, in addition to that upon application of the parties, to order investigation into an accused’s fitness to stand trial. The flaw in the reasoning process of the Court of Criminal Appeal in this case is to be found by considering paragraphs [133], [137] and [138] of the reasons of ‑ ‑ ‑

GUMMOW ACJ:   Where do we find those?

MR GRACE:    At application book 132, commencing at that page.  Now, could I read from paragraph [133], which is a short paragraph:

Counsel for the appellant placed considerable emphasis on the appellant’s lack of insight into his condition and, therefore, his lack of capacity to raise a defence of insanity or diminished responsibility.  While this is not a specific criteria identified in s 43J ‑ ‑ ‑

GUMMOW ACJ:   “[A] specific criteria?”

MR GRACE:   Sorry?

GUMMOW ACJ:   It does not matter.  Go on.

MR GRACE:  

for present purposes we will assume that a lack of such a capacity would prevent the appellant from being fit to stand trial.  If a person was unable by reason of mental illness to raise the defence of that mental illness, it might be said that the person would be unable to give instructions to legal counsel.

That is the point that we make.  If we come to paragraph [137], there the court considered the evidence given at the fitness hearing in February 2004, and particularly the evidence of Dr Westmore, and it is instructive ‑ ‑ ‑

GUMMOW ACJ:   Just explain to me who Dr Westmore was.

MR GRACE:   Dr Westmore was a psychiatrist who was called to give evidence on the fitness hearing ‑ ‑ ‑

GUMMOW ACJ:   Called by whom?

MR GRACE:   He was called by the Crown, I believe.

GUMMOW ACJ:   I thought so.

MR GRACE:   Yes.

GUMMOW ACJ:   Now, at that time of the fitness hearing your client, through his representatives, was asserting his fitness.

MR GRACE:   Yes, he was, and he instructed his counsel, apparently, not to cross‑examine those witnesses who testified as to his fitness in a way so as to undermine that testimony.  At paragraph [137] Dr Westmore’s evidence is encapsulated in part.  The first quotation which you will see at line 25 says:

“His lack of insight would have affected his ability to enter a plea or to consider a mental – to consider the full range of defences which won’t be available to him to the charge that he faced.”

Later at line 45:

A. …And that’s my concern about his fitness, that he doesn’t have the capacity to consider all his options and may therefore be disadvantaged ultimately at the end of the process.

Q.However, if he were to maintain that explanation that was his choice, then that would be a perfectly reasonable choice to make, wouldn’t it?

A.If the choice was made in the absence of mental illness then it would be a free choice, but if the ‑ if its not a matter of choice.  Because he doesn’t have an insight into the mental illness and cannot even consider that as being a possibility then that’s a different issue.

Q.I understand that but someone might have the insight and know they could raise that sort of defence and decide they didn’t want to?

A.Absolutely and that might be quite a different matter to the one we’re considering today.  If a patient has a mental illness and insight into the mental illness, but their illness is in remission and they say I choose not to use that defence, even though it won’t be available to me, that’s quite a different matter from Mr Heffernan’s case.

Then at paragraph [138] their Honours found that nothing had changed between the fitness hearing in February 2004 and the trial in July 2004.  When they say nothing had changed, what they say is there was no evidence put before the court that nothing had changed, and at line 30 their Honours say:

In addition, bearing in mind that in February 2004 the appellant instructed counsel that he was fit to stand trial and that the appellant was adamant at trial that he did not wish to pursue a mental illness defence, it is a reasonable inference that if the appellant had been represented at trial he would have instructed his counsel not to raise the question of his fitness to stand trial or defences of insanity and diminished responsibility.  While the defence would undoubtedly have been better presented if the appellant had been legally represented at trial, the fact of representation would not have altered the nature of that defence and would not have caused the introduction of a defence based upon mental illness.  In our view, there is no basis for a conclusion that the appellant was unfit to be tried by reason of the fact that he lacked insight into his mental illness and, therefore, did not raise a defence based on his mental illness.

We say that is the crux of the decision of the court.  What is submitted is that that highlights the flaw in the reasoning process, because if one considers and if one accepts what the court says at paragraph [133] is correct, then that very conclusion ought to have given rise to the trial judge of his own volition making the inquiry as to the applicant’s fitness.

CRENNAN J:   On what basis would he be expected to do that, Mr Grace?

MR GRACE:   Because the learned trial judge had before him all the reports of the doctors in question.  He had the transcript of the hearing before another Supreme Court judge.

GUMMOW ACJ:   He had a jury verdict in February 2004.

CRENNAN J:   He has the jury decision.

MR GRACE:   He has the jury decision, yes, but he is faced ‑ ‑ ‑

GUMMOW ACJ:   And it is now July, is it not?

MR GRACE:   It is July 2004.  He is faced on the eve of the trial with the applicant sacking his counsel, the applicant during the course of the trial not asking one single question of a witness and then putting up ‑ ‑ ‑

GUMMOW ACJ:   Well, that is not quite accurate, is it?

MR GRACE:   Yes, it is.  On the voir dire ‑ ‑ ‑

GUMMOW ACJ:   Exactly.

MR GRACE:   ‑ ‑ ‑ he did ask questions and evidence was excluded as a result of that process.

GUMMOW ACJ:   Yes.

MR GRACE:   But before the jury he did not ask a question.  When it came to final addresses, after he never put to any of the witnesses, which later resulted in a Browne v Dunn adverse direction against him, that there was an issue as to the identity of the deceased, he came out with what is submitted to be the bizarre defence that the person named in the indictment was not in fact the deceased person.  That was his defence.

His Honour was concerned about the issue of his fitness or at least the issue of his possible defence of diminished responsibility at the time of the commission of the offence.  His Honour raised that issue with the prosecution and there was debate about that at the time.  There was debate about whether the prosecution ought call evidence in relation to the issue.  The applicant said, “I do not want any doctors called.  I do not want to see any doctors.  I do not want any evidence put before the court.  I do not want the defence of diminished responsibility to be raised.” 

What is submitted is that there was a real question that that decision by the applicant was a product of the very mental illness which doctors had previously diagnosed and which at least two or three of the doctors called at the fitness hearing had previously indicated in unequivocal terms that he had a lack of insight into and, furthermore, that a number of doctors said that he had an extraordinary ability to mask his symptoms.  He was an intelligent man.  He was not unlike an Eastman.  He was an intelligent man.  He understood the court processes.  But that ought not to have blinded the court to the fact that his mental illness was producing the very lack of defence which was clearly open to him on the material. 

Justice Hayne in Eastman 183 CLR 1 at paragraph 294 said this halfway through the paragraph:

Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it.  In that respect it is a question which falls outside the adversarial system.  Indeed, it must fall outside the adversarial system ‑ ‑ ‑

GUMMOW ACJ:   Well, there is a statute dealing with this now in the Northern Territory, is there not?

MR GRACE: Yes, section 43N deals with that.

GUMMOW ACJ:   That is right.  So you say the judge erred in not exercising the power given to him by the statute.

MR GRACE:   Yes.  Could I read further ‑ ‑ ‑

GUMMOW ACJ:   There is no further point, is there?

MR GRACE:   Well, that is the point and ‑ ‑ ‑

GUMMOW ACJ:   The statute reflects what was said in Eastman.

MR GRACE:   Yes, but could I adumbrate what Justice Hayne had to say because he went on further at paragraph 296 and said this, in relation to Presser, at the bottom of the page:

In R v Presser, the issue was said to arise “from some passages in the depositions and from further information that was supplied to [the trial judge] in a report” (presumably a medical report).  The demeanour of the accused during the trial or even a question from the jury may raise the issue. 

In this case you had a question from the jury as to what the effect of or the possible effect upon the jury’s determination of intention might be affected by the mental impairment issue.

But once there is a “real and substantial question to be considered”, the question must be submitted to the body which is empowered to decide the question.  There will be a “real and substantial question to be considered” by this body unless no properly instructed jury (or no tribunal) could reasonably conclude that the accused was not fit.

CRENNAN J:   Mr Grace, if you look at Eastman in the Chief Justice’s decision, paragraph 26, he deals with point (b), on the occasion of dealing with four points arising out of R v Taylor.  So if you look at (b), which seems to be close to the situation you are talking about, and then the Chief Justice goes on in paragraph 27 to say that:

the ultimate test to be applied is the statutory test set out earlier.  However, each of the [four] propositions is sound, and they are consistent with the statutory test. 

I wanted to ask you how does that fit with the argument you are putting about what the judge should have done?

MR GRACE:   The Ontario Court of Appeal in paragraph (b) of that citation, in my submission, is not reflecting the common law of Australia.  It is reflecting a view which seems to undermine the effect of Eastman and undermine the effect of Kesavarajah and undermine the effect of section 43N of the Criminal Code (NT). Here there was clear and unequivocal evidence that ought to have raised in the mind of the learned trial judge a question as to the applicant’s fitness. Indeed, in his Honour’s reasons for sentence, which your Honours may accept as being akin to a judge’s report, his Honour raised in the issue.

Could I take your Honours to page 63 of the application book and your Honours will see at line 42, the start of the paragraph, his Honour says this:

Apart from the missing money belonging to Stuart –

Stuart is the deceased –

it is difficult to see any motive for his murder.  On the contrary he had been both kind and generous towards you and you had every reason to feel gratitude to him.  The six distinct cuts and their nature implies an almost frenzied attack from behind upon a man who was clearly substantially intoxicated and in no condition to defend himself.

Then over the page, on page 64, at line 41:

The evidence of Dr Tabart, given on 18 February last at the hearing as to your fitness to stand trial, was to the effect that you had what he described as “a quite extraordinary ability to mask” your symptoms, which he believed you had done for much of the period since you were taken into custody in 2001, given some periods of obvious destabilisation -- particularly following court appearances.

It is apparent to me, in light of the medical opinions and evidence to which I have currently had access, that, although you present as an intelligent person quick to grasp points when they are explained to you, you continue to have an incomplete or even relatively little insight into or appreciation of your psychiatric condition and the need for medication.  Moreover, on reflecting on your demeanour over the course of what has been a lengthy trial, it appears to me that the phenomenon of “masking” referred to by Dr Tabart in his evidence may well be continuing.  I pause to note that the psychiatrists who have given evidence in relation to your case agree that you are, in fact, of above-average intelligence.

Over on page 65:

The circumstances are such that it is difficult to escape the conclusion, despite your persistent protestations at trial that you did not seek to rely upon any mental health aspects as relevant to your defence, that your actions may, at least to some extent, have been affected by your condition of paranoid schizophrenia.  This is particularly so as, on your own concession to the police, you had not been taking the medication that had been prescribed for you for a period of some three weeks.

As to this, I particularly bear in mind the evidence of Dr Tabart to the effect that only about 25% of persons who develop a psychotic disorder have a full resolution of that illness.  The vast majority continue to have remissions and exacerbations throughout their lives.  In your case it is clear the condition has been resistant to treatment over a long time and none of the specialist witnesses have suggested the probability of total remission.

So there you have the clear underlying factual matrix that ought to have given rise in his Honour’s mind during the course of the trial that notwithstanding what had occurred in February 2004, what was at the very least odd behaviour, if not bizarre behaviour, throughout the course of the trial through the non‑contribution or activity in the trial process of the applicant gave rise to a real question as to this man’s fitness and an inquiry ought to have been ordered.

GUMMOW ACJ:   Now, what relief do you seek?  Do you seek a retrial, do you?

MR GRACE:   Yes.

GUMMOW ACJ:   What is going to happen then?

MR GRACE:   Well, the question as to his fitness will have to be relitigated.

GUMMOW ACJ:   Yes, Mr Karczewski.

MR KARCZEWSKI: Your Honours, that question of fitness will only be relitigated if, in fact, the statutory criteria are met. The test is set out in section 43N(2)(b) of the Criminal Code.

GUMMOW ACJ:   Tab 13?

MR KARCZEWSKI:   The provisions are at tab 13 of the respondent’s material.  In particular, your Honours find that:

The court must order an investigation into the fitness of the accused person to stand trial if –

. . . 

(b)the Judge is satisfied there are reasonable grounds on which to question the accused person’s fitness to stand trial.

So that is the threshold test:  there needs to be reasonable grounds.  The Court of Criminal Appeal after an exhaustive examination of all the material held that there were no reasonable grounds. 

If I could go straight to the nub of my learned friend’s argument which deals with the applicant’s lack of insight into his condition and the consequent lack of capacity to raise a defence of insanity or diminished responsibility.  My learned friend has already taken your Honours to the passage in the Court of Criminal Appeal’s judgment, paragraph [133], which your Honours will find at the application book at page 132, where there is reference made to the missing specific criteria.  Perhaps to understand what that means, could I take your Honours to page 175 of the application book – the second‑last page in the book, in fact.

GUMMOW ACJ:   Yes.  It has a chart.

MR KARCZEWSKI:   Yes, that is the one.  We have in the left‑hand column listed the minimum standards/abilities referred to in the case of Presser down the left‑hand side, number 1 through to 6, and we have down the bottom added an additional one, “Instruct his or her counsel”.  The additional one, “Instruct his or her counsel”, appears in three statutes:  the Criminal Code (NT), the Crimes Act (ACT) and the Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic). Your Honours will note that the sixth Presser criteria is missing out of those three enactments.  So that is what the Court of Criminal Appeal is referring to when it says:

While this is not a specific criteria identified in s 43J, for present purposes we will assume that a lack of such a capacity would prevent the appellant from being fit to stand trial.

Now, the first special leave question is whether or not section 43J replicates the Presser criteria, the common law test.  Well, with respect, the only test which the Court of Criminal Appeal had to concern itself with is that set out in the legislation, section 43J.  So whether or not section 43J replicates the common law is not to the point.  The question is whether or not the Court of Criminal Appeal applied its mind to the test in 43J and that, we say, they did.

GUMMOW ACJ:   Well, they certainly seem to have done so.

MR KARCZEWSKI:   I am sorry, your Honour?

GUMMOW ACJ:   They certainly seem to have been quite painstaking, as was the primary judge and the authorities at all stages in this matter.

MR KARCZEWSKI:   Yes.  Could we just look at the material that was before the Court of Criminal Appeal which related to the issue of fitness.  The first matter, your Honours, is this, that there was a finding of the jury in February 2004 that the applicant was fit to stand trial and, indeed, he was represented on that occasion by experienced trial counsel and experienced trial counsel urged the jury to find him fit to stand trial and, indeed, cross‑examined, as your Honours will see, Dr Westmore into a position of him having to concede that instructions may change depending upon the circumstances.

Now, following that there was a gap of five months to the trial proper and at the trial proper it is to be noted that the applicant was adamant that he did not wish to pursue ‑ ‑ ‑

GUMMOW ACJ:   We are seized of all of this.  We spend some time studying all of this before we get here.

MR KARCZEWSKI:   Yes.  So the fact of the matter is, your Honours, that there was no material which would give rise to reasonable grounds because that issue had already been determined by the jury.  There was no other material that emerged.

CALLINAN J:   There seemed to be meticulous attention to all of these statutory requirements, I thought, by both courts.

MR KARCZEWSKI:   Yes, and there is a presumption of fitness to stand trial.  So, in the absence of any additional material, coupled with the presumption, coupled with the applicant’s behaviour at trial, which was not unusual – he was not given to any outbursts ‑ ‑ ‑

CALLINAN J:   Well, the trial judge assisted him with his final address and he had prepared a written final address himself that he was going to read and ‑ ‑ ‑

MR KARCZEWSKI:   That is so, yes, and he successfully challenged the admissibility of what might be seen as being fairly significant evidence.  There is reference made in the judgment of the Court of Criminal Appeal to the exclusion of evidence on the voir dire.  What that evidence related to, your Honours, was this, that the applicant was arrested in New South Wales by members of the New South Wales Police Force and their evidence was – the evidence of Detective Deakin was to the effect that when he arrested the applicant he told him that he was under arrest for the murder of a male person in the Northern Territory.  The applicant then replied, “What?  I don’t know what you’re talking about.  I wasn’t even in the Northern Territory.”

Now, that, of course, does not sit squarely with the account that he gave in his record of interview where quite clearly he admitted to being in the Northern Territory, associating with the deceased and, indeed, dropping the deceased off and seeing the deceased get into another car.  So his defence was, “It wasn’t me.  Yes, I was in the Territory, but it wasn’t me”, and that is an account which reflected itself throughout the material before the court.  It appeared firstly in the record of interview and your Honours will see reference to that in the application book at pages 74 and 75.

He told Dr Westmore the same thing in January 2003, and your Honours will find reference to that at the application book at page 81.  He maintains his innocence to the psychiatrist – that is his treating psychiatrist, Dr Robertson – in September 2003, and that is set out in Dr Robertson’s report and reference to that is at the application book at page 103.  Dr Robertson gives that evidence on the fitness investigation in February 2004, and that is at application book 134, and of course, as we know, the applicant effectively maintains this version of events in his closing address.  So his defence throughout is consistent:  “It wasn’t me”.

GUMMOW ACJ:   The ground on which an appeal is sought appears at page 151, that it is an error in law in failing to find on the part of the Court

of Criminal Appeal that the learned trial judge in turn had erred in failing to discharge his obligation.

MR KARCZEWSKI:   Yes.

GUMMOW ACJ:   Statutory obligation to inquire.

MR KARCZEWSKI:   That is right, and the point of reciting the consistency for your Honours’ benefit is to demonstrate that it was not a case as if the applicant was changing ground from day to day or throughout the course of the trial.  Consistently the material was of the one tenor, “This is my defence”.  Specifically he was not relying upon any defence based on an abnormality of mind, mental impairment.  Given the course of the proceedings and given the exhaustive examination given to the matter by the Court of Criminal Appeal, we would say there is simply no error demonstrated.  May it please the Court.

GUMMOW ACJ:   Thank you.  Yes, Mr Grace.

MR GRACE:   The defence raised by the applicant was raised for the first time in his closing address, that is, that the identity of the person named in the indictment was not the deceased.  You will find that closing address, short as it is, set out in full at paragraph [63] on page 96.

GUMMOW ACJ:   Yes, that is right.

MR GRACE:   So there is no issue about his presence or otherwise in the Northern Territory which is said to be the consistent position all the way through.  There is no mention of that.  That is the defence that is set out.  It is bizarre.  Now, it is no answer, in my respectful submission, as the respondent suggests, that after having the Supreme Court determine the applicant’s fitness to stand trial in February 2004 and there being no apparent medical evidence to evidence a deterioration in that condition by the time of the trial, that no further inquiry was justified.

The very course of the proceedings itself, in my submission, justified that inquiry.  As Acting Justice of Appeal Hunt said in the Supreme Court of New South Wales Court of Criminal Appeal in the case of Henley which is replicated at tab 11 of the respondent’s material at paragraph 4 – sorry, I will read paragraph 4:

In Regina v RTI (2003) 58 NSWLR 338 at 449 (par [31]), this Court held – in the light of authority, including Eastman v The Queen (2000) 203 CLR 1 at 106 – that, if there is material before this Court even on an appeal against conviction which raises a question about the propriety of the conviction because the appellant may have been

unfit to be tried, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial, a court conducting an inquiry into his fitness to be tried, acting reasonably, would necessarily have found that the appellant was fit to be tried.

In that case, the court applied that particular principle, which is the identical test that is set out in section 43N of the Northern Territory Code, and if that had have been applied, and his Honour would have discharged his obligations, and then a proper inquiry into fitness could have been held even at that late stage of the trial. Kesavarajah of course contemplates that fitness issues and fitness inquiries can take place at any stage of the trial process.  In Kesavarajah, you may recall, the judge had almost completed his charge when that issue of fitness had arisen.  In this case, it had arisen prior to that, and the circumstances of the trial, the jury question as to the effect of the applicant’s mental condition was one which ought to have attracted, if nothing else, his Honour’s attention to the requirement to the legislation to order an inquiry.  Those are my submissions.

GUMMOW ACJ:   The applicant asserts error of law on the part of the Court of Criminal Appeal.  However, the Court of Criminal Appeal conducted a thorough review of the evidence and carefully considered the legislative requirements and applied them.  The decision of the Court of Criminal Appeal is not attended by sufficient doubt to warrant any grant of special leave in this matter.  Special leave is refused.

The Court will now adjourn to 10.15 am on Tuesday, 1 August 2006 in Canberra.

AT 10.44 AM THE MATTER WAS CONCLUDED