Huish v the Queen

[1987] TASSC 57

TASSC A53/1987

CITATION: Huish v The Queen  [1987] TASSC 57; A53/1987

PARTIES:HUISH, MAURICE EDMUND DAVID

v
  THE QUEEN

TITLE OF COURT:  APPELLATE
JURISDICTION:  SUPREME COURT OF TASMANIA (CCA)
FILE NO/S:  CCA 104/1986
DELIVERED ON:  27 October 1987

JUDGMENT OF:  Neasey, Cosgrove and Cox JJ

Judgment Number:  A53/1987
Number of paragraphs:  30

Serial No. 53/1987
List "A"
File No. CCA 104/1986

MAURICE EDMUND DAVID HUISH v THE QUEEN

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
NEASEY J
 COSGROVE J
COX J

27 October 1987

ORDERS OF THE COURT:

1. Leave to appeal granted
2. Appeal dismissed

Serial No. 53/1987

List “A”

File No. CCA 104/1986

MAURICE EDMUND DAVID HUISH v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL:

NEASEY J

COSGROVE J

COX J

27 October 1987

ORDERS OF THE COURT:

1.      Leave to appeal granted.

2.      Appeal dismissed.

Serial No. 53/1987

List “A”

File No. CCA 104/1986

MAURICE EDMUND DAVID HUISH v. THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL:

NEASEY J

27 October 1987

1. I agree with the reasons and conclusion of Cox J that the appeal herein should be dismissed. I have nothing to add.

Serial No. 53/1987

List “A”

File No. CCA 104/1986

MAURICE EDMUND DAVID HUISH v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL:

COSGROVE J

27 October 1987

1. I agree that this appeal should be dismissed for the reasons expressed by Cox J.

Serial No. 53/1987

List “A”

File No. CCA 104/1986

MAURICE EDMUND DAVID HUISH v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL:

COX J

27 October 1987

1. The appellant, an honours’ student at the University of Tasmania, was convicted of the murder of another student, Leigh Turner, who was his rival for the affections of a female student. The deceased’s body had been found in his flat on the 28 February 1986, several days after his death from multiple stab wounds inflicted, it would seem, on the 24 February 1986. The appellant, when first interviewed by police on the day the body was found, made a lengthy statement in which he claimed to have last seen the deceased alive and well a week before at the deceased’s flat and in which he accounted for his own movements throughout the following seven days.

1. On the 2 April 1986 the appellant voluntarily went to the police station to give information to investigating police concerning a game known as “Dungeons and Dragons” which had been a pastime engaged in by the deceased, the appellant and others of their group, and when confronted with the proposition that a person answering his description had been seen in the vicinity of the deceased’s flat after his death, but before the discovery of the body (a fact inconsistent with his previous statement), told them that he had gone to the flat to remove from the letter box certain periodicals ordinarily delivered to householders on that day in order “to confuse the police”. Asked whether he was responsible for the death of the deceased he denied that he was but said that he had been present. He then told a story of meeting a girl called Linda and of taking her to the deceased’s flat where, after introductions, an argument had occurred between the deceased and Linda. He said that Linda had produced a knife and stabbed the deceased and that the appellant had thereupon fled the scene.

1. Shortly thereafter the appellant participated in a signed record of interview in which he claimed that he had not gone to the deceased’s flat with a girl named Linda, but rather that he, dressed in female attire and with appropriate cosmetics, had gone there playing the character of a girl of that name. On being admitted to the flat, in order to expose the deceased as a person unfaithful to Julia, his girlfriend to whom the appellant was also attracted, the appellant had in effect endeavoured to seduce the deceased. Upon the deceased responding to Linda’s approaches, the appellant had removed his wig and revealed his identity. The deceased had called the appellant a “sadistic bastard”, had attacked him and the handbag brought by the appellant had fallen to the floor spilling its contents, including a knife. There had been a struggle in which the deceased had been stabbed and had lost possession of the knife and the appellant lost control and began to stab the deceased repeatedly. Leaving him apparently dead the appellant had returned home, placed his female clothing and cosmetics in a disposable garbage bag and had then driven to a friend’s home where he spent that same evening with a number of acquaintances and thereafter visited the Hobart Casino. Later that night he said he had disposed of the bag of clothing and accessories somewhere in the city.

1. After the record of interview the appellant accompanied police to the deceased’s flat and there, inter alia, indicated in the presence of a photographer the position of each party and of various objects during the fatal altercation. He also indicated a refuse bin in the city where he had disposed of the clothing and accessories and a shop where he had previously purchased the wig, the brand name of which happened to be Linda. At the trial the Crown produced evidence of the acquisition by the appellant of the wig from that shop and of other items of female apparel from other sources.

1. On the 3 April 1986, the day after he had been charged, the appellant, who was still in the police cells, sent a message to the investigating police officers asking to see them. He told them that he had lied about disposing of the bag of clothing in the city and said he had done so at Franklin. He also asked to make a further statement because, he said, he had come to his senses and wanted to tell the police the truth about what happened. The substance of this statement, which he wrote himself, was that he had gone to the flat disguised as a woman as he feared the deceased would not otherwise admit him and in order to disguise his entry and exit, that he had purchased the clothing with the sole intention of killing the deceased in order that he might have Julia himself, and that he had been casually considering the possibility of killing the deceased for some time “because I love Julia and she chose Leigh to the exclusion of me saying we could not even be friends any longer”. He then made and signed an endorsement on the record of interview of the previous day as follows:–

“Some of the events described in this interview are fictitious. I have since made a statement telling the truth about how I killed Leigh.”

1. Thereafter the appellant gave a number of further accounts of the events concerning the death of the deceased, some in written documents, one being given on oath at his first trial in which the jury failed to reach agreement, another being given again on oath on the trial the subject of this appeal, and yet another version being given by the appellant while undergoing, in the presence of two psychiatrists called in his defence, a narco–analysis or abreaction under drugs conducted at the prison hospital shortly before the second trial.

1. The appellant did not dispute the fact that he had stabbed the deceased thereby causing his death, but relied partly on provocation which the learned trial judge put to the jury and in respect of which there is one matter of complaint on this appeal. However, the real substance of his defence was that he was insane at the time so as not to be responsible according to law. His principal complaint in respect of this appeal is that a psychiatrist, Dr Bell, called by the Crown ostensibly in rebuttal of the evidence of insanity adduced by the defence, gave evidence which went beyond that properly admissible in rebuttal; that in purporting to review and analyse evidence before the jury to support his opinion that the appellant was not insane he used that review and analysis as a vehicle to attack the credibility of the appellant in the guise of offering expert evidence; that he gave opinion evidence on the ultimate issue before the jury thereby improperly usurping their function and that he used as a means of reconstructing evidence a chart which was not admissible.

1. I think it is worth recording that this was a lengthy trial extending over some 21 sitting days. The defence extracted from friends and acquaintances of the appellant, called by the Crown, a considerable amount of evidence as to his background, personality, interests and general behaviour and called in addition to the appellant himself his father and a friend of long standing to give further background information. Three psychiatrists and one psychologist were called by the defence and a video tape recording of the abreaction test referred to above was also placed before the jury. The Crown called three psychiatrists in rebuttal on the issue of insanity in reliance upon the Criminal Code, s381(4). In a trial where opinion evidence is properly led on matters of scientific information which is likely to be outside the experience and knowledge of the jury, it is often very hard to avoid the situation occurring wherein an expert witness at times ventures opinions on matters which may be strictly outside his expertise and may comment on a matter of fact which it is exclusively the function of the jury to ultimately resolve. Often the difficulty lies in identifying the precise limits of what is his special expertise and what is knowledge commonly possessed by lay persons who make up the jury. Sometimes in warming to his theme the expert witness may resort to persuasion as to matters of disputed fact on which his opinion is based. Depending on the circumstances there may be a danger that although the expert witness’ impressive scientific qualifications and forensic skills make him no better equipped to form an opinion on matters of human nature and behaviour within the limits of normality than the jury, they may think that they do (R. v Turner (1974) 60 Crim App R 80 at p83). That danger will be a matter of degree, depending on what form the trespass into the jury’s province took, its significance in relation to the rest of the evidence and the directions given by the trial judge. There has been no complaint here that the learned trial judge in any way incorrectly or inadequately charged the jury as to their role as sole judges of all questions of fact. If there were some imperfections in the trial in the above sense it remains a question whether this Court is of the opinion, having regard to the whole context of the trial, that the appellant has suffered any injustice or not had a trial according to law.

1. The first psychiatrist called by the defence, Dr Burges–Watson, said that in formulating the opinions he later gave he had paid regard to, inter alia, his own examinations of the appellant, the history procured from his parents and from friends, the transcript of the first trial, most of which he had attended, the various documentary accounts attributed to the appellant and the abreaction test conducted by himself and Dr Pargiter. In formulating the appellant’s condition he considered first his personality. From the material it was Dr Burges–Watson’s view that the appellant had a very disturbed personality and that the most obvious difficulty in his personality was the disparity between his very high intelligence and his emotional development and social capabilities. He said he had a problem of ineptness with girls, that he hid his real feelings, that he put on a false front, had few friends and had an unusual attitude to the macabre since childhood. Finally, as far as his personality is concerned, Dr Burges–Watson said “The grandiosity, arrogance and apparent contempt with which he has dealt with some things in court is also part of a false front – he is using his intelligence in order to try and cover his feelings”. He then referred to certain evidence which the doctor said indicated to him that the appellant was depressed during the three months preceding the stabbing and summarised his assessment of the appellant’s personality and condition during that time by saying “We have somebody with a very disordered personality and somebody with depressive illness which fluctuates but was definitely getting more severe towards the time of the offence”.

1. By reference to certain international medical classifications, Dr Burges–Watson said he was led to the conclusion that at the time of the stabbing the appellant “was sick, both because of the personality disorder and because of the depression”. He said further that it would be his opinion, “based on his mental state and the other evidence before the court that it is highly unlikely that Huish can give an accurate or even partially accurate account of what happened on the night in question”. Under stress the appellant could become psychotic and it was his view that “the most likely explanation for the nature of the killing would be either that he was psychotic at the time or that he had dissociated and lost contact with reality”. All pointed to the same thing, “that a whole heap of feelings were unleashed in an act which had no rational components involved in it”. Later he said it was his view in terms of classification of the appellant’s state at the time of the stabbing that “it would be an acute paranoid reaction – acute paranoid psychosis”.

1. The second psychiatrist, Dr McCafferty, relied on much the same kind of material as has had Dr Burges–Watson in formulating his opinion, but had not been present at the abreaction test. He considered that the appellant had a personality disorder with schizoid and narcissistic features, that in the months prior to the stabbing he was suffering from a depressive reaction and that on the night of the 24 February 1986 his mental state was consistent with a dissociative state. Asked what implications in psychiatric terms there were in a multiplicity of different versions of events given by the appellant, Dr McCafferty said he regarded the most likely explanation as being that a person in a dissociative state does not have a full recall of the events and that the multiple versions of what happened could be attempts to remember what was not clear. He expanded by saying “The attempt to remember what happened would be met with a partial block in his memory. He would not remember clearly what happened on the night and therefore the multiple stories could be multiple versions to fill in the blanks”.

1. Of the abreaction test, the tape of which he had seen, Dr McCafferty said:–

“There were two aspects of it that struck me. One was the way Mr. Huish appeared to have entered into the role of Linda in what to me was a very convincing way and it was consistent with the idea of dissociation where one can enter into another role in a very full way. The second aspect of the interview was that there was evidence of or a suggestion of psychotic thinking which I hadn’t seen any evidence of before particularly when he described an evil force which he called ‘it’ or ‘the thing’ which entered Mr. Turner and entered him and was seen as frightening and dangerous and this would fit the description of a persecutory or paranoid delusion.”

1. Dr Pargiter, the third psychiatrist called by the defence, was also of the opinion that the appellant had a personality disorder and a depressive illness and that some kind of psychotic process occurred at the time of the offence arising from the appellant being in a highly aroused and anxious state immediately prior to the fatal act. This process he regarded as an acute paranoid reaction, apparently provoked by some emotional stress. In the course of his cross–examination he repeatedly pointed to evidence given to the court by the appellant’s friends and acquaintances as giving support for his diagnosis of a personality disorder and depressive illness.

1. In the light of this evidence the Crown was clearly entitled to call evidence in rebuttal, not merely of the specific evidence called by the defence, but generally of the issue of insanity raised by it (see Thomas v The Queen [1960] WAR 129; R. v Files [1983] 2 Qd R 153 and R. v Pateman [1984] 1 Qd R 312). The kind of evidence it called from its three psychiatrists was in substance that having regard to such evidence as the defence psychiatrists relied upon and which was available to them (only one Crown psychiatrist had been permitted by the defence to interview the appellant), they did not consider that the evidence supported the conclusions that the appellant suffered from any personality disorder or depressive illness or that at the time of the stabbing he was in a psychotic or dissociative state. However, it is submitted that they went further and said in effect that the evidence was just as consistent with, if not demonstrative of, the appellant killing while unaffected by mental disease and thereafter fabricating such a condition in order to escape liability. That was of course the Crown case and it is said that the Crown psychiatrists acted as advocates of that view instead of confining themselves to expressing opinions on matters within their own expertise.

1. The first tangible criticism is of Dr Wilson who having said that he did not agree with the diagnosis of psychosis or disassociation was asked by Crown counsel “Do you think there is evidence pointing to any other matter?”. He replied “I think perhaps I would have said that there are signs or some suggestion at least that all of this behaviour on the night in question and since then was purely intentional and was highly organised and could be seen as a form of active deception”. He then took into account the pathological evidence of the nature of the blows and the appellant’s apparent memory of some of them as evidenced in some of his statements to refute any suggestion that the killing had been a frenzied one.

1. In my view there is no substance in this criticism. Consideration of the nature and location of the blows, together with the appellant’s apparent memory of them, was clearly part of the witness’ formulation of his opinion of the appellant’s mental state at the time and there was no reason why he should not express it. The fact that the appellant’s behaviour then and thereafter is consistent with sane behaviour taking the form of an intentional killing deliberately disguised is the other necessary side of the coin in the context of the present case where the evidence suggested no other explanation.

1. The same comment can be made of the criticism of Dr Lopes’ formulation of his view which he expressed in these terms:–

“I conclude that there is not a shade of evidence to show that Mr Huish was suffering from any mental disorder, both at the time of the offence, before or after, which could be objectively demonstrated ..... My formulation would be that this is a young man who comes from a good family, protected environment, good school, perhaps the environment was a bit restrictive, reasonably intelligent and exposed as he was to certain influences at the University like Dungeons and Dragons and Vikings, these influences have certainly influenced the way he thinks and the way he behaves. He became skilled in a certain way and when he becomes involved in a common enough situation where a boy meets a girl and gets very involved, gets rejected, upset and a killing occurs perhaps in a fit of anger, jealousy, passion and when first detected feels very bad about it, admits it, but later on due to some influences or something that happens he tries to intellectualise because as Dr Williams said this is how he knows to do (sic) intellectualise, intellectualises, rationalises and then his behaviour from then on would be explained as having nothing to lose. I may as well play it like a game of Dungeons and Dragons. That’s how I would explain the behaviour.”

In my view there is nothing objectionable about this evidence and its admission could not have caused the appellant any injustice.

1. It is against the third witness, Dr Bell, that most criticism is levelled. It is submitted that he used his review and analysis of the evidence as a vehicle to attack the credibility of the appellant. Obviously the witness was entitled, indeed obliged, to state the material upon which he formed his opinion (R. v Turner [1974] Cr App R 80 at p82 and R. v Fowler (1985) 17 A Crim R 16 at 18). It was of course for the jury to determine how much, if any, of that material was factually correct and to evaluate his opinion accordingly. Equally, in my view, the witness was entitled to offer criticism of the methods used by the defence psychiatrists and of their interpretation of the material they relied on.

1. Dr Bell was critical of the “abreaction” test. He said that in his opinion it was not a true abreaction at all and he based that view on his own observations of the video tape recording. Ultimately it was for the jury to form their view of the value of the test and whether or not the appellant while undergoing it had been genuine or not, but they could have been assisted by the expert evidence of a psychiatrist conversant with the technique. Dr Bell, commenting on the manner in which the appellant spoke during the narco–analysis, said:–

“As a psychiatrist who has listened to many mad people, I repeat that that particular voice is the caricature of a mad person. It is not the genuine article. It is what a lay person thinks happens when a mad person speaks.”

Later on he said:–

“The point I wish to make to you is this. That if it is an abreaction, the individual is gripped in the strong emotion and the individual does not switch, does not change, does not use somebody else’s voice. An actor does. It’s more in the skill of the story teller such as the skill of the person who is – who switches quickly from part to part in dramatising books for the blind, but it is acting and it is certainly not what is seen in the genuine abreaction.”

1. There were other instances of interpretation by Dr Bell of the behaviour and reactions of the appellant during the test. Undoubtedly the effect of his comments would have been adverse to the appellant’s general credibility, but the fact that they may have had this effect does not mean that Dr Bell’s evidence was used as a vehicle to attack credibility or that the effect made the evidence inadmissible. His comments counter the evidence of the defence psychiatrists as to the value of the technique as a diagnostic tool (whether merely confirmatory of earlier formed diagnoses or not) and tend to demonstrate the existence of a non–insane mind which is the very issue to which the rebuttal evidence is directed.

1. Criticisms were also made of his use of a chart upon which he had in abbreviated form highlighted variations in the versions of events given by the appellant since the death of the deceased. This document was never admitted into evidence but appears to have been used as an aid in the presentation of his oral evidence in much the same way as a drawing on a blackboard. From this compilation of the different versions of the appellant,  Bell concluded that as a psychiatrist he could see nothing in it which indicated mental illness. Rather he saw a consistent pattern – “a pattern of the evolution of an idea and this does not have a psychiatric explanation that I can see, but it can be explained in other ways”. The evidence no doubt had a tendency to persuade the jury that the appellant had consciously lied for a purpose, but in my view it was perfectly permissible that the witness should express his view that the variations in the story themselves demonstrate a purposive, non–insane pattern. The manner in which the chart had been compiled was attacked in cross–examination and on appeal as inaccurate and selective. But errors of fact and selectivity were proper matters for cross–examination by the defence and comment to the jury and did not affect the admissibility of his evidence.

1. Another criticism was of the use made by Dr. Bell of the answers given by a lay–witness on matters allegedly indicative of the presence or absence of psychiatric illness. The appellant’s friend, Paul Scott, was asked by Crown counsel in cross–examination a number of questions concerning the appellant’s general behaviour. It appears that some at least of these characteristics are symptoms recognised by the psychiatric profession of the illnesses and disorders classified in certain internationally recognised manuals to which the defence psychiatrists had referred. Thus counsel asked Mr Scott, for example, “Did you see signs of his being excessively jealous?” and received an answer in the negative, and likewise “Did you see that he excessively required constant attention and admiration?”. The negative answers to this type of questioning were relied upon by Dr Bell as demonstrating an absence of personality disorder. It was submitted that the witness should not have been permitted to pick up complex answers given by lay witnesses and interpret what they meant to a psychiatrist. I see nothing wrong in Dr Bell’s approach, so long as the questions and answers were reasonably comprehensible to a lay person and avoided jargon such a person may not have been expected to be familiar with. None of the questions however were of that nature to my mind, even were they framed from symptomatic behaviour described in a text book of a specialised discipline.

1. There was also criticism that Dr Bell had asserted that it was his impression that Mr Scott had understood the questions. When he made that comment the learned trial judge himself said “Yes – well let us assume he did”. Obviously Dr Bell had to assume that that was so if he was to rely on the answers in formulating his views. It was of course open to the defence to comment to the jury in address that Mr Scott may not have understood the questions in the same way as Dr Bell did.

1. In my view it has not been demonstrated that the evidence led from the psychiatrists in rebuttal strayed beyond the legitimate parameters of expert opinion evidence, or produced any injustice or unfairness to the appellant.

1. The appellant also complains that the learned trial judge erred in failing to direct the jury in relation to the issue of provocation, “that they could use the psychiatric evidence to determine whether the appellant in fact acted under provocation”. At the conclusion of the evidence and in the course of discussions in the absence of the jury this exchange occurred between counsel for the defence and his Honour:–

“Counsel:  Would you Honour take the view that the jury can use the psychiatric evidence as to the question of whether, if one gets over the first hurdle, the provocation did in fact deprive the offender of the powers of self control? I have in mind of course the evidence which I elicited from Dr Lopes.

His Honour:  Well, I would think that as a question of, well it is simply a question of fact and if that evidence would assist the jury to reach a conclusion that in fact he was deprived and they passed the objective test that comes before it I would have thought that they could use it in that way, yes.”

1. In my view this could not reasonably be interpreted as a request from counsel that the trial judge should make any general observation to that effect during the course of the summing up, still less that he should remind the jury specifically of any part of Dr Lopes’ evidence or that of any other witness. The exchange merely cleared the way for defence counsel, without any fear of impropriety, to draw the jurys attention in his address to such of the psychiatric evidence as he considered might have supported that part of his case. No other complaint is made of his Honour’s directions generally, nor in relation to the issue of provocation and I see no reason why the learned trial judge should have given any such direction.

1. Three Canadian cases were cited in support of this ground of appeal. The first Wright v The Queen [1969] 3 CCC 258, merely acknowledged the relevance of the character, background, temperament, idiosyncrasies or drunkenness of an accused person to the question whether or not the accused in question acted in fact on provocation, whereas such considerations are excluded from the objective enquiry whether the provocation was sufficient to deprive an ordinary person of the power of self control. The second, R. v Berger 27 CCC (2nd) 357 was a case in which the judge appealed from had dealt with such characteristics in respect of the subjective enquiry in a manner the appeal court regarded as satisfactory for the purposes of that case; and in the third, R. v Haight 30 CCC (2nd) 168, the trial judge had refused a specific request by the defence to deal with such characteristics when directing the jury on the subjective element involved in the question of provocation. In that case the conviction was quashed by reason of a number of defects in the summing up including that. I regard that case, irrespective of its authority, as very much turning on its own facts. In the present case I do not regard the learned trial judge’s omission to give such a direction as erroneous in any way.

1. In my opinion leave to appeal should be granted but the appeal dismissed.