Lane and Hales - [2000] NTSC 5

Lane and Hales [2000] NTSC 5
PARTIES:JAMES ANDREW LANE

and
PETER WILLIAM HALES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 78 of 1999 (9817512)
DELIVERED:  28 February 2000
HEARING DATES:  7 February 2000
JUDGMENT OF:  Mildren J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:Ms S Cox
Respondent:  Mr M Carey
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:           B
Judgment ID Number:
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lane and Hale [2000] NTSC 5

No. JA78 of 1999
BETWEEN:

JAMES ANDREW LANE

Appellant

AND:

PETER WILLIAM HALES

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 28 February 2000)
Mildren J:

The appellant was charged with having unlawfully damaged property, namely a window, to the value of $400 being the property of John and Sara Alexopoulos, contrary to s251(1) of the Criminal Code. He pleaded not guilty.
The appellant's case was that he was in a deluded state of mind at the time and that, accordingly, he was entitled to the benefit of s35(2) of the Criminal Code which provides:
A person whose mind, at the time of his doing, making or causing an act, omission or event, was effected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act, omission or event to the same extent as if the real state of things had been such as he was inducted by the delusions to believe to exist.
The appellant's case was that at the relevant time, he was suffering from a delusion that he was being pursued by persons who were trying to kill him. Fearing for his life, he broke the window to get inside the house to obtain help. It was submitted that the circumstances (if they had been real) amounted to a sudden and extraordinary emergency which would have excused the appellant from criminal responsibility pursuant to s33 of the Criminal Code, which provides:
Subject to the express provisions of this Code relating to self-defence, provocation, duress and coercion, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.
The appellant did not give evidence at his trial. However, he was interviewed by police and his record of interview was tendered by the prosecution. The learned Magistrate summarised the appellant's statement to the police as follows:
1.The defendant said that after knocking off work he had a "joint".
2.He went to John Alexopoulos' home to see if he had a job for the following day. Before leaving the premises he telephoned his girlfriend Rachel and told her that he was "flipping out". She told him to go home. He then left the Alexopoulos' residence.
3.He started to "flip out" and became "schizo". He thought everyone was trying to kill him.
4.He dashed back to the Alexopoulos' residence because he thought JA (ie Mr Alexopoulos) might be able to help him. He broke the window with his foot in order to get into the house. He said people were trying to kill him. He knew that he was "gone".
5.The defendant said that Mr & Mrs Alexopoulos did not understand that he was "flipping out" from the drug. He left and went home.
6.The defendant then explained that the "joint" he had smoked was a marijuana cigarette. He said that he had smoked before and had experienced a similar effect as on the day in question, but the effect was not as severe. He went on to say that he used to smoke a fair bit, but did not smoke much these days. The defendant stated that prior to the "joint" he smoked on 22^nd August his last smoke was about 3 weeks ago. The marijuana he ingested on that occasion produced a similar result. He said that it was hard to explain. He said that "it makes you do things - stupid things".
7.Recalling events earlier in the day, the defendant said that he had attended the Alexopoulos' residence (about 3.00 - 3.30 pm) to try and start the lawnmower. He was unable to get it going and left the mower at the house.
8.The defendant stated that he went blank after the "joint". He was freaking out. He knocked on the door to the Alexopoulos' residence. There was no answer, so he broke the window.
9.He said that he did not know how to explain the broken window to Mr and Mrs Alexopoulos. He first said that he had cut his foot on the mower and then said that he had done it on the steel. The defendant did, however, say that he would pay for the broken window. He said that he was "tripping out" on the earlier occasion he had attended at the Alexopoulos residence.

10.The defendant said that when he left the house on the earlier occasion he thought everyone was trying to kill him. He did a U-turn and went back to JA's house. He knocked on the door. No one heard him. He became really worried, and was fearing for his life. It was then that he broke the window with his right foot. He said that he was panicking and he cut his foot when he broke the window.

11.He agreed that he had no permission to break the window or to enter the house. He said that he was trying to get help from JA. He acknowledged that he had done the wrong thing. He said that he was sorry for what had happened and had apologised to JA.

The appellant also called evidence from a psychiatrist, Dr Ohn Kyaw, employed by Mental Health Services at the Tamarind Centre. Dr Kyaw had first seen the appellant on 10 September 1998, about three weeks after these events. The learned Magistrate summarised the conclusions reached by Dr Kyaw as being:
(1)the appellant was at the relevant time suffering from a marijuana- induced psychosis, which produced a delusional disorder resulting in hallucinations;
(2)this is uncommonly caused by marijuana ingestion alone;
(3)an EEG conducted by a Dr Barrows reported a brain abnormality which might have been caused by a head injury, or alcohol abuse, or from taking morphine;
(4)the underlying weakness in the brain made the appellant more susceptible to delusions following the use of marijuana.
Evidence was also given by the appellant's girlfriend, Rachael Phelps, who received a telephone call from the appellant to the effect that he was having an episode and was frightened and unsure of what to do. This call was apparently made shortly before the appellant smashed the window.
The learned Magistrate found that he was not reasonably satisfied on the balance of probabilities that at the time the appellant damaged the window he was affected by a delusion of the kind asserted, although that was a possibility (as were other possible explanations for his conduct). As it was incumbent upon the appellant to establish, on the balance of probabilities, the existence of such a delusional disorder in order to lay the foundation for a defence of sudden and extraordinary emergency under s33 of the Code, it followed that that defence was not available to the appellant.
Further, the learned Magistrate found that if he was wrong in reaching the above conclusion, he was satisfied beyond reasonable doubt that the delusion was not operative at the relevant time.
Further, the learned Magistrate held that in any event any such delusion was induced by the appellant's voluntary taking of the drug marijuana and that, therefore, the defence of sudden and extraordinary emergency under s33 of the Code did not apply.
Further, the learned Magistrate held that s35(2) of the Code did not apply where the delusion was induced by voluntary intoxication.
The sole ground of appeal is that the learned Magistrate erred in finding that the appellant was not excused from criminal responsibility by virtue of a deluded state of mind. Counsel for the appellant, Miss Cox, "particularised" this ground into what are really three separate grounds:
(1)the learned Magistrate erred in drawing an adverse inference from the failure of the appellant to testify and that this error affected both of the findings set out in paragraphs [7] and [8] above;
(2)the learned Magistrate erred in finding that the requirements of s35(2) could not be made, when he should have considered whether the delusions were substantially caused by marijuana and not by a pre-existing abnormality;
(3)the learned Magistrate erred in holding that self-induced intoxication prevented the appellant from relying on the defence provided for by s33 of the Code.
The failure of the accused to testify
The learned Magistrate correctly concluded that the material in the record of interview, whether exculpatory or inculpatory, constituted evidence in the proceedings and was evidence as to the truth of the matters therein contained, although the weight to be given to the self-serving nature of the parts of the statement that were favourable to the appellant was subject to the consideration that the appellant's version had not been subjected to cross-examination: see Massie v The Queen (1993) 117 FLR 104.
However, the learned Magistrate found the appellant's account of his state of mind to be unconvincing for a number of reasons, which his worship enumerated, including the following:
The defendant's account does not sit at all well with the evidence given by Mr and Mrs Alexopoulos, both of whom I accept as reliable historians and ultimately credible witnesses.
The evidence of both those witnesses substantially undermined the defendant's account of his deluded belief and reason for breaking the window. Both witnesses gave accounts of the defendant giving a series of excuses for his presence at the premises on the occasion the window was broken and for the injury he presented with in the entrance to the bathroom. In my opinion the excuses the defendant proffered were totally implausible and inconsistent with his claim that he was affected by a deluded belief that people were trying to kill him and that out of fear for his life he broke the window to try and enlist the assistance of Mr Alexopoulos. The evidence given by Mr and Mrs Alexopoulos as to the excuses given by the defendant was not contradicted by the defendant; nor did the defendant explain away, or adequately explain, the obvious inconsistency between his claim of being affected by a deluded belief that he was being pursued by persons who were trying to kill him and the uncontradicted evidence of Mr and Mrs Alexopoulos.
Any explanation for the discrepancy was, of course, within the peculiar knowledge of the defendant, and it was open to him at all times to enter the witness box to offer an explanation. It can be properly inferred from his election not to give sworn evidence that any explanation that the defendant could have offered would not have assisted him.
The absence of any explanation for the discrepancy between the defendant's assertions and the evidence of Mr and Mrs Alexopoulos severely undermines the credibility of the defendant's account. (Emphasis mine.)
Counsel for the appellant submitted that the passages italicized demonstrate error because it is not permissible to conclude that the appellant must be guilty because of his or her failure to give evidence and the above passages are consistent with that line of reasoning. In support of her argument, Ms Cox referred to the decision of the majority of the High Court in RPS v The Queen [2000] HCA 3, delivered 3 February 2000. The majority of the Court, comprising Gaudron ACJ, Gumnow, Kirby and Hayne JJ, dealt with a summing up by a trial judge in New South Wales who had directed the jury that if they were satisfied that it was reasonable to expect some denial or contradiction to be forthcoming from the accused if such a denial or contradiction was available, then the jury was entitled - but not obliged - to conclude from the accused's election not to deny or contradict that evidence, that his evidence would not have assisted him in his trial. In New South Wales, s20 of the Evidence Act (NSW) permits a judge to comment on the evidence, but he must not suggest that the defendant was, or believed he was, guilty of an offence. (In the Northern Territory, a trial judge cannot comment at all: see Evidence Act s9(3).) Their Honours held that the direction violated s20 because any belief that the defendant had held that his evidence would not have assisted him in his trial could only proceed from a belief that he was guilty: see para 19.
Further, their Honours went on to deal with the situation independently of s20 of the Evidence Act and said (at paras 27-28):
...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissenteiner v The Queen (1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ:
In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
28. In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations
It is clear from these passages that their Honours took the view that, in those cases where the Crown seeks to establish its case by circumstantial evidence in circumstances where the evidence gives rise to an apparently damming inference, if the circumstances are also such that, if there is a rational or reasonable hypothesis consistent with innocence, it must also be within the accused's knowledge and therefore the failure of the accused to give evidence is a factor which may be taken into account in deciding whether or not such a rational or reasonable hypothesis exists. Weissenteiner v The Queen (supra) was itself a good example of such a case. However, it is equally clear that their Honours took the view that except in such a case, no adverse inference can be drawn. As they said, at para 23:
It is not a mode of reasoning that is concerned, for example, with whether the direct evidence of any eyewitness should be accepted.
Their Honours concluded that as the case against the defendant did not depend upon drawing inferences from proven facts, no such inference could be drawn: see para 32.
It is also of significance to note that their Honours concluded that no such reference should ordinarily be drawn, as it would violate the so-called "right of silence" which, as their Honours point out at para (22):
is a useful short-hand description of a number of different rules that apply in the criminal law... What is presently significant is that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.
And later their Honours said (at para 33):
As the trial judge rightly said, the prosecution must prove the charges it makes and must do so beyond reasonable doubt; an accused person is not obliged to give evidence, and the jury must not conclude that an accused who elects not to give evidence is, for that reason, guilty of the offence charged. There are, as the trial judge said, many reasons why an accused may not wish to give evidence. For present purposes, the most important among those is that the accused may consider that the evidence adduced by the prosecution does not prove the commission of each of the alleged offences beyond reasonable doubt. And although there may be many kinds of reason why that view is held, some cogent and some not, the accused is not bound to give evidence.
With respect, I would add to those observations, with which I fully concur, the consideration that not every person accused of an offence has the intelligence, education and language skills to feel confident in his or her ability to get into the witness box - even with the aid of an interpreter, if one is available and required. In the Northern Territory this must be a significant deterrent to those accused of crimes, especially if they are of Aboriginal descent, or otherwise use English as a second (or third) language, or are ill-educated or just plainly lacking in intelligence.
Consequently, it is not necessary to decide whether s9(3) of the Evidence Act (NT) applies to a Magistrate conducting criminal proceedings. The correctness or otherwise of Miss Cox's submission depends upon whether the reasoning of the learned Magistrate was flawed by the incorrect application of the rules discussed in paras [15] to [18] above. In this case, the appellant was presumed to have been of normal mind until the contrary was proved (Criminal Code, s6); thus, as the learned Magistrate correctly observed, the appellant bore the onus of satisfying the Court on the balance of probabilities that his mind was affected by delusions. This matter of proof did not depend upon the drawing of inferences from the proven facts, but upon whether the learned Magistrate was prepared to accept the appellant's explanations to the police in the record of interview, as well as the expert opinion of Dr Kyaw. Consequently, the learned Magistrate erred in drawing the inference from the fact that the appellant did not give evidence that any explanation the appellant could have offered for the supposed discrepancy would not have assisted him. (Moreover, in this case, the appellant's explanation for the alleged discrepancy was to be found in the record of interview itself.)
Counsel for the respondent, Mr Carey, conceded that if the learned Magistrate's error was crucial and went to the heart of his decision, there was nothing he could say. However, he submitted that the learned Magistrate was merely making an observation that there was no evidentiary basis for the claim that he was deluded, in the absence of sworn evidence. I do not consider that this is the way the learned Magistrate approached the matter. His Worship took into account the appellant's record of interview and treated it as part of the evidence before him as, in my opinion, he was obliged to do. He also took into account that this evidence was not sworn to, that it was contrary to the evidence of other witnesses, viz., Mr and Mrs Alexopoulos, as well as other matters, including the inference complained of. It is the taking into account of the inference complained of in arriving at the overall conclusion that the appellant had failed to show that he was in a delusional state, which is the error. I therefore reject this argument.
Next, Mr Carey submitted, in effect, that the evidence of Dr Kyaw (which was necessary to be called to establish the delusional state) was rightly rejected by the learned Magistrate. However, as the learned Magistrate himself pointed out:
To the extent that Dr Kyaw's opinion is based on information provided to him by the defendant the validity of the Doctor's opinion is dependant upon the view that this Court takes of the defendant's evidence in these proceedings".
Later his Worship said:
The expert opinion expressed by Doctor Kyaw has its limitations. His diagnosis was largely based upon the history given by the defendant which must, for the reasons advanced earlier, be treated with a high degree of circumspection.

The respondent's submission is tantamount to an invitation to this Court to "apply the proviso", i.e., to dismiss the appeal pursuant to s177(2)(f) of the Justices Act, notwithstanding that a ground has been made out, because no substantial miscarriage of justice has actually occurred. It is incumbent upon the respondent to establish that factor and I am not satisfied that it has been so established, merely because of the matters discussed so far. However, it is necessary before I am able to resolve this appeal, to consider the other grounds of appeal as they attack separate bases relied upon by the learned Magistrate for holding that the appellant must be convicted. These are considered below.
If the appellant was voluntarily intoxicated, can s33 still apply?
It was argued that the fact that the appellant's delusions were induced by voluntary intoxication caused by the ingestion of marijuana was irrelevant to a consideration of this defence. The learned Magistrate reasoned that as the section imported the test of "an ordinary person similarly circumstanced" to the accused, the section has no application as a "person similarly circumstanced" does not include a person who is voluntarily intoxicated: see the definition of "person similarly circumstanced" in s1 of the Code. In this case, the question of voluntary intoxication had bearing on two questions: (1) whether the appellant was affected by a delusion and the cause of his delusion for the purposes of s35(2); and (2) whether, assuming the delusion contended for existed, a person who is not voluntarily intoxicated but otherwise is similarly circumstanced to the accused in the sense that he is being pursued by persons trying to kill him, would have smashed the window of the house in order to escape his pursuers and seek assistance from those within. In considering the second question, the point is not that the defence is not open because the appellant was intoxicated, but what would a sober person have done in the appellant's position? I therefore disagree with his Worship's conclusion that the defence of sudden and extraordinary emergency is never open when a person is voluntarily intoxicated, although it is relevant to bear in mind that the standard of the response to the emergency is that of a person who is not voluntarily intoxicated. I do not accept the argument based on the common law doctrine of prior fault has a bearing on s33 of the Code, as his Worship found. The Code has replaced the common law and "its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law": Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ. Counsel for the respondent, Mr Carey, referred to R v Kusu (1981) Qld R 136 as support for the proposition that self-induced intoxication cannot be a defence, but that case deals with a quite different type of problem based upon certain of the provisions of the Queensland Code, which are not in para materia with, or relevant to, the interpretation to be given to s33.
If the appellant was deluded by voluntary intoxication, can s35(2) still apply?
Counsel for the appellant submitted that on the evidence the appellant's disorder was "induced" by his ingestion of marijuana but it was also caused by a pre-existing brain injury. It was submitted that the purpose of s35 is to ensure that delusions substantially arising from voluntary intoxication would not found a defence. As his Worship did not address the issue of whether the ingestion of marijuana or the pre-existing abnormality was the substantial cause of the delusion, or whether both were the substantial cause, it was submitted that the learned Magistrate fell into error. No authorities were cited by Miss Cox for the central propositions upon which this submission depends, nor was the submission elaborated upon in detail.
In my opinion, expert evidence before the learned Magistrate established, at best, that the appellant had a pre-existing underlying weakness in the brain which made him more susceptible to delusions following the use of marijuana. According to Dr Kyaw, the cause of the delusions was the taking of the marijuana. I do not think that the evidence went so far as to have entitled the Magistrate to have any doubt that the delusions were caused by anything else, although the brain weakness could no doubt be viewed as a causa sine qua non: see para [5] above. That being so, there is no basis for suggesting that his Worship erred in not considering whether the ingestion of marijuana or the pre-existing brain injury was the substantial cause of any delusion suffered by the appellant and accordingly, the submission fails in limine.
However, I must not be taken as accepting the proposition put by Miss Cox that s35(2) does not apply to cases of voluntary intoxication unless that is the substantial cause of the delusion; nor do I necessarily accept that a delusion induced by voluntary intoxication is not within the provisions of s35(2), as the learned Magistrate found. It is not necessary to discuss the former proposition for the reason that there is no factual basis to support it and the latter proposition was not raised by the appellant. This ground of appeal must therefore fail. That being so, it follows that although I would uphold the appellant's submissions as to the inferences drawn by the learned Magistrate as to the appellant's failure to testify and as to the construction to be given to s33, the appellant has failed on a separate ground which he also needed to establish in order to succeed in this appeal. The appeal must, therefore, be dismissed.
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