Kerr v The Queen

[2003] HCATrans 580

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2001

B e t w e e n -

ROBERT JOHN KERR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 10.30 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear for the applicant.  (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by the Solicitor for Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, the argument is set out in the applicant’s summary of argument.  What I would like to do is to supplement it by making some observations in relation to the case.  The case involved a situation which could be described as gross, ongoing and pretty dramatic.  One of the two people involved in the incident, either the complainant or the applicant, appears to have what might be described in loose terms as a sick imagination or a sick mind.  The question was which one of them.

This was a case which depended almost entirely on the complainant’s evidence.  It was a case in which there was no corroboration in any real sense.  It was a case in which there was no recent complaint in any acceptable sense and it was a case which was segmented over a period of months by a number of opportunities to escape, which the failure to avail the complainant of those would have raised very considerable questions about the state of her mind and the state of her mental health.  As against the accused, we have the evidence effectively that ‑ ‑ ‑

McHUGH J:   These are your points of prejudice?

MR RICHTER:   Yes.  Now, the point of special interest ‑ ‑ ‑

McHUGH J:   Can we get to the issues.  You have three of them in your special leave application.

MR RICHTER:   The issues of special interest – and I might say at the outset to save time, so far as the delay issue is concerned, that would not in itself raise issues of special leave, in our submission.  The first one does and it does it in this way because it deals for the first time with a judgment in which we would say there is a significant error and there are significant errors about the way in which the community may regard the notion that someone is being psychiatrically treated, whatever that might mean and with whatever vaguenesses that might mean.

The use and inferences which are permissible inferences which may arise from the receipt of evidence, if one might call it, of psychiatric treatments are a matter of general importance in the context of the criminal law and for the proper administration of justice because the lay jurors, contrary, in my respectful submission, to the generosity with which his Honour Justice Vincent treated the lay jurors of Morwell as having the understanding of participants in….classes on mental illness.  That of course goes back a long way but it was fashionable for certain people to try to understand it to differentiate mental illness from all sorts of things.  Those sorts of prejudices were invoked and invoked by a senior and experienced prosecutor, were invoked for an impermissible purpose.  The community is concerned in relation to the sort of conclusions one can ‑ ‑ ‑

McHUGH J:   Are you talking about the opening address?

MR RICHTER:   I am talking about the nature of the evidence that was led and the opening address because they go together.  The error in admitting the evidence was that his Honour Justice Vincent failed to appreciate, in my respectful submission, that the evidence was not being admitted on a proper basis to an issue that was live in the trial.  There was never going to be an issue in the trial as to the record of interview.  There was no objection to the record of interview.  So that the notion that the officers conducted themselves properly in asking the questions and receiving the answers was not to the point.  That was never in issue.

It is not as though there had been an application to exclude the answers because the man was asking for someone from the psychiatric hospital because he had not received or wanted to have advice about his medication.  To that extent the relevance that it had was a theoretical one only and did not arise and was never going to arise, but the prejudice that arose from the notion that here is a man who is appealing for someone from a psychiatric hospital to come to him and who says that he has had psychiatric treatment gives rise to obvious prejudices in the community.  The fact is we know it gives rise to obvious prejudices in the community because, for example, we have an Act of Parliament, the Disability Discrimination Act 1992 of the Federal Parliament, which deals with some issues about mental illness or mental incapacity. It is there because there is in the community an attitude of prejudice towards people who are receiving treatment for mental conditions, whether they constitute illness or not.

But the sort of finesse that arises from an analysis of that condition is something with which the law needs to deal in terms of what is possible.  The two run together in the sense that what happened was that the prosecutor of course invited the jury to draw an inference.  When the question of admissibility was first raised of those portions of the record of interview, he disavowed any intention of wanting to prove what the psychiatric condition was or that it had anything to do with what on any view might be considered to be leading someone into a state of frenzied and sadistic psychopathy over a long period of time.

He disavowed any intention of doing that but what he did avow which led to the application for a discharge was that he was going to ask the jury to infer that because the man had had psychiatric treatment, that is something that explains the conduct which in other circumstances was described both by the prosecutor as probably unbelievable in terms of the complainant’s account and indeed by his Honour Justice Vincent in his judgment as something that the prosecutor was afraid of, that unless he could explain the evidence of the complainant, the prosecutor feared that of course it would not be accepted as probable.

The real problem that arises here is there is an issue of multiple relevance, an issue of multiple admissibility and the use of material for an improper purpose.  The submission that I make is this.  So far as the material was concerned, right at the outset it is trite to say that the material would have been irrelevant as to whether or not the interview was fairly conducted, but the fair conduct of the interview was never in issue.  Therefore, we go to the improper reasoning that may flow from the use of that material and it exists.  The reason it exists is because, in arguing for its admissibility, the learned prosecutor, a very senior and experienced prosecutor, I stress, against counsel who was an in‑house Legal Aid young counsel, says to the jury that because he is mentally ill you should accept that he did what would otherwise appear ridiculous or outrageous or pathologically sadistic.

That being so, we say the learned trial judge was bound to exclude it because he knew that the use of that material would be for an improper purpose.  We want to draw the distinction between something which might explain conduct and an inference that might possibly be raised from the evidence.  The distinction is quite clear.  You cannot from the fact that someone, for example, is taking medication for anti‑depressants jump to the conclusion they can turn into a sadistic psychopath.  What you can do is if you found that which is to be proved by the complainant’s evidence, namely that the person was a sadistic psychopath who conducted himself in a sadistically psychopathic way, then you can conclude that he probably did it because he was mentally ill.  So the whole thing is turned on its head in terms of the permissible use of the material.

We say that no judge applying the appropriate considerations could have allowed that evidence to go to the jury.  The errors are patent and they are explicable by what we say is a rather shallow analysis of the admissible value of those utterances in the record of interview.  Any serious analysis would have led to the notion that the evidence is only being sought to be used for an admissible purpose, although technically speaking it might go to be relevant to some issue which in this trial was a non‑issue between the parties.

So to that extent it is vital that this Court correct what, in our respectful submission, is in fact an egregious miscarriage of justice but something which is of general interest to the administration of justice.  We have a lot of cases in which people have psychiatric medication, if I can use it loosely.  The fact that prejudice comes into the equation is something that ought to be a given rather than something that ought to be demonstrated.  I do not know of many members of the Law Institute, the Bar and the Bench or the medical profession who go round flagging the fact that they might be on anti‑depressants themselves or on sleeping tablets like Mogadon and the like.  The reason they do not do that, the reason they hide that if possible, is because of the sort of prejudices that arise from the knowledge that they do.

It is precisely in this area and because of the recognition that there is such prejudice in the community that that evidence ought to have been tossed out.  It was simply not relevant; it was not capable of proving that which the prosecutor sought to use it for.  That being so, even though there might have been an arguable case that technically it was limited, it was admissible in relation to, for example, the standing of the record of interview, which was not contested and was embraced in fact by the defence because that was the defence, it set out the defence, that technical argument ought to have resulted in a complete disregard of it for the purposes of considering the exclusion of references which made problems.

The other problem was this.  His Honour Justice Vincent when discussing the effect of this evidence says that the trial judge of course cautioned the jury to use only evidence, only the evidence that they had.  His Honour misunderstood.  They had evidence of the fact of treatment and the receipt of psychiatric medicine.  The only evidence they had of that was from the record of interview itself.  So the invitation to act on the evidence in fact compounded the problem because he never told them how they could use it or how they could not use it.  Justice Vincent, with the greatest respect, misunderstood that and thereby fell into error.

There was other evidence in relation to psychiatric matters.  The complainant, for example, claimed that she was intimidated by the applicant in relation to the fact that he was psychiatrically treated and that he gave her some prescription drugs of his, but those were matters in dispute.  That did not prove it.  The one thing that proved the receipt of psychiatric medicine and psychiatric treatment for a condition that later was elicited to be one of severe depression was the record of interview.  The only reason that the question of severe depression was brought in was that when a doctor was called by the prosecutor to try and demonstrate that the complainant was never in the doctor’s surgery on her own, in fact the evidence turned out the other way; she was left alone with the doctor.  But counsel for the applicant cross‑examined the doctor and elicited from the doctor that the true condition was one of severe depression.  He had no burden of proof.

What Mr Perry then did was in re‑examination of that witness tried to demonstrate, as he did with a couple of other witnesses, that in fact if you are taking depression medication, you might become psychotic.  There is no evidence of that.  The doctor said, “I don’t know anything about this”.  Everybody else said, “I don’t know anything about that; that’s not so”.  But he is putting it that way.  I guess the fundamental complaint is of an unfair prosecution, of a judgment in the Court of Appeal that failed to recognise it and that failed to recognise the basic principles of cross‑admissibility in a situation of multiple relevance where one aspect of relevance is of nil probative value, although theoretically and technically irrelevant because it goes to a non‑issue.

The other has no probative value but only prejudicial value in the context of the trial.  So to that extent the reception of the evidence was and ought to be pronounced comprehensively wrong because it is based on a common prejudice in the Australian community which the Australian community is trying to fight against.  That is why we have campaigns about the Schizophrenia Foundation trying to tell people that schizophrenics are not people who go around killing people necessarily and the like.  That is why we have the Disability Discrimination Act 1992 and equivalent legislation in the States. That is why it raises an issue of general importance for the administration of criminal law, quite apart from the fact that in this particular case there was an egregious error. In this particular case there was an egregious miscarriage of justice.

The next thing I want to deal with is the notion of the discharge of the jury.  The learned trial judge refused the discharge of the jury.  His reasons for the refusal of the discharge of the jury – and I will not read the comments that led to it because they are all set out in the application book – after Mr Perry made those comments, which, by the way, he repeated later in final address, although in slightly different form, were given in a ruling which is at application book page 38, where his Honour says at line 20 or thereabouts:

Thirdly, he submitted that Mr Perry invited the jury to reason that Robert Kerr’s psychiatric condition explained his alleged conduct.

The way in which that application was dismissed appears at page 40 of the application book around line 34:

I further note that the challenge is made not to evidence given but only to comment on evidence which might be given or might not be given.

That is wrong, totally wrong, because the evidence was going to be given and it was going to be given because his Honour ruled the references in the record of interview relating to the psychiatric issue in.  So the whole thing is riddled with appalling errors.

The only other thing is this.  So far as Justice Vincent’s consideration of the issue, he limited himself as to whether or not the learned trial judge had the correct test in mind for discharge.  What he did not do was to consider whether the learned trial judge properly balanced the matter.  If what we say has the slightest merit in terms of potential prejudice in relation to a growing and significant portion of the community, if that was right, then the situation was Justice Vincent’s job was to ask:  No 1, is there a prejudice?  Is there a possibility that they might act on the prosecutor’s invitation to act improperly as against what has happened already?  That is the balancing exercise in determining if there is a pressing necessity.

In this particular case there had been lots of argument.  There had been rulings on evidence and there had been an opening but no witness had given evidence.  In particular, the complainant had not given evidence.  No one had given evidence.  There was nothing to lose in saying, “If there is a risk that prejudice will flow from a senior prosecutor’s invitation to act improperly, let’s start again and do it right”.  So that under those circumstances his Honour Justice Vincent got it wrong and we would rely on the fact that our outline demonstrates that there is a miscarriage of justice.

There is because the case being so tightly balanced in the balances between the account given in a long record of interview with denials and inscriptions by the applicant as against the account given by the complainant, his account did not sound lunatic.  Her account sounded somewhat lunatic.  The issue was not whether you could draw an inference from the fact that he had received psychiatric attention that he would act in a lunatic way.  That was not something that was open for inference.  It might explain lunatic conduct but only if you find that lunatic conduct proven on a proper basis.  Then you might go back and say to yourself, “It must have happened because he was off his head, because he was in a psychotic episode”.  The Crown specifically disavowed calling any evidence.

McHUGH J:   Thank you, Mr Richter.  We need not hear you, Mr McArdle.

We are of the view that there is no reason to doubt the correctness of the judgment of the Court of Appeal.  Accordingly, the application for special leave to appeal is dismissed.

AT 10.51 AM THE MATTER WAS CONCLUDED