Lisa Joy BEATTIE v The Queen

[2008] NSWCCA 184

New South Wales
Court of Criminal Appeal

CITATION:	Lisa Joy BEATTIE v R [2008] NSWCCA 184
HEARING DATE(S):	1 August 2008
JUDGMENT DATE:	2 September 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Hislop J at 36
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against verdict after special hearing - maliciously wound with intent to inflict grievous bodily harm - maliciously inflict grievous bodily harm - special hearing under s 19 of the Mental Health (Criminal Procedure Act) - whether misdirection in respect of specific intent - appellant suffering from mental illness - whether verdict unreasonable and/or unsupported by evidence - appeal dismissed
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 Crimes Act 1900
CASES CITED:	R v Zvonaric [2001] NSWCCA 505 R v Minani [2005] NSWCCA 226; 63 NSWLR 490 Hawkins v The Queen [1994] HCA 28; 179 CLR 500
PARTIES:	Lisa Joy BEATTIE (Appellant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2007/2933
COUNSEL:	A Haesler SC & J Manuell (Appellant) P Miller (Respondent)
SOLICITORS:	S O'Connor (Legal Aid Commission) (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0160
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ

2007/2933

McCLELLAN CJ at CL
SIMPSON J
HISLOP J

Tuesday 2 September 2008

Lisa BEATTIE v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: This is an appeal against a verdict under s 22 of the Mental Health (Criminal Procedure) Act 1990 (“the Act”).

Background

3 On 21 January 2006 the appellant was arrested and charged with an offence of malicious wounding with intent to inflict grievous bodily harm, and, in the alternative, an offence of maliciously inflicting grievous bodily harm.

4 On 30 August 2006, following an enquiry pursuant to s 12 of the Act, Robison DCJ found that the appellant was unfit to be tried (s 14). In accordance with the requirements of s 14, he referred the appellant to the Mental Health Review Tribunal (“the Tribunal”). On 8 December 2006 the Tribunal determined, on the balance of probabilities, that the appellant would not, within the 12 months following the finding of unfitness, become fit to be tried. The Tribunal therefore (as required by subss 16(3) and (4)) notified the District Court and the Director of Public Prosecutions (“the DPP”) of its determination.

5 The DPP having decided that further proceedings would be taken, a special hearing into the charges was, by s 19 of the Act, required to be conducted. That special hearing commenced on 26 March 2007 before Nicholson DCJ. Allegations in the same terms as those originally charged were made, in the alternative, under s 33 and s 35(1)(a) of the Crimes Act 1900 (both since repealed and re-enacted in different language). On 28 March 2007 Nicholson DCJ delivered a verdict, under s 22 of the Act, that, on the limited evidence available, the appellant committed the principal offence alleged (the s 33 offence). By s 22(3)(c) such a verdict is subject to appeal to this Court in the same manner as a verdict in an ordinary trial of criminal proceedings. It is that verdict that is the subject of the present appeal and judgment.

The special hearing

6 By ss 21A and 21B of the Act, a special hearing is to be conducted by judge alone unless an election is made by the accused person, the prosecutor, or an Australian legal practitioner representing the accused person, to have the issues determined by a jury. No such election having been made, the special hearing proceeded before Nicholson DCJ sitting without a jury. S 21B(2) of the Act requires that a determination given by a judge in a special hearing must include the principles of law applied and the findings of fact upon which the judge relied in coming to the verdict.

7 There was little, if any, dispute about the facts. Most of the evidence was given in the form of written statements of witnesses, who were not required for cross-examination.

The facts

8 Given the limited nature of the issues, the facts may be stated succinctly.

9 In the early afternoon of 21 January 2006, a Saturday, the appellant was in a shop in a shopping centre at Bankstown. She was holding a knife. A young woman (“the complainant”), dressed in traditional Moslem clothing, was in front of her. The appellant appeared angry and determined. Holding the knife slightly above her head, she pointed it at the complainant’s head. The complainant ran from the shop. The appellant followed her, continuing to hold the knife aloft, and still pointing it at the complainant’s chest area. The complainant asked the appellant what was wrong, and if she was “ok”; the appellant did not reply, but thrust the knife towards the complainant in what was later described as a hesitant manner. The complainant sought to defend herself. The appellant stabbed the complainant in one finger, and in the top of her forearm. The appellant pulled the knife back and ran from the store, pursued by several bystanders who had witnessed the incident. She was driven away in a motor vehicle by her boyfriend, (Gary Beman, who appears to have been in the vicinity because he had been alerted that the appellant was behaving in a way that gave rise to concern). Mr Beman disposed of the knife by throwing it in a river. The appellant was arrested a few hours later. A police officer asked her if she had stabbed the woman at the shopping centre. She said that she had. The police officer asked her why. The appellant replied:

“I wanted to stab a Moslem. I went in and found a Moslem and stabbed her, I’ve had enough of Moslems, that’s why.”

10 The detective asked why she had an antipathy against Moslems. The appellant replied:

“I’m related to a Moslem and I hate them, I’ve had enough of them.”

11 A little while later the appellant was formally interviewed. She was accompanied by Ms Laura Conejo. She retracted her admission; she agreed that she had made the admission, but said that it was untrue. She then said:

“What happened was I had a knife and I went and bought one and because this guy in the first place, he told me to stab this woman and I went and got a knife, and then I … and I went up to her and I stabbed her and, and I just freaked out and he told me …”

12 The appellant then said to Ms Conejo:

“So scared. Fuckin’ James, you idiot. I hope he kills himself … I can’t believe that James would tell me to do something like that, to stab a, a beautiful woman like, why you know? Why? Why stab her? Why? You know what I mean? Why in the first place would want to, would want to stab a person, all because of this guy James in, the first place going with him, I didn’t know, and I was that scared, cause he had a knife, he was gunna pull it out on me and everything. If you don’t do it, and now he’s got away with it now and I, that’s not fair.”

13 At the time of the events in question, s 33 of the Crimes Act was in the following terms:

“Whosoever:

maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,
with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years.”

14 The sole issue litigated in the special hearing concerned whether the Crown had proved, to the requisite (criminal) standard, that the appellant had, at the time of her conduct, the intention necessary to sustain a conviction under s 33. Relevantly, that intention is an intention to cause grievous bodily harm. The determination by Nicholson DCJ involved an express finding that the Crown had proved, to the requisite degree, that the appellant had such an intention.

15 It was not in dispute that the appellant’s statements, if taken at face value, amply justified an inference that the appellant did have that intention. However, counsel for the appellant pointed to other evidence, concerning the appellant’s mental health, that were, they argued, capable of undermining that conclusion. No evidence, medical or otherwise, was called in her case.

16 The statements of the witnesses included the following. Gary Beman was the appellant’s boyfriend, who had driven her from the scene (although it is not suggested that that was by pre-arrangement or that he was involved in the appellant’s conduct). Relevantly to this issue, Mr Beman said that the appellant had been diagnosed “with some type of mental illness”, and that she had told him that “she hears voices in her head”.

17 Ms Melissa Cole, a residential care worker at a facility in which the appellant lived stated:

“[The appellant] in the past two weeks appears to have been withdrawn and distant from our activities and conversations. I have noticed when working that [the appellant] displays these traits and I have difficulty in getting her to perform and involved in simple tasks. When I have conversations with [the appellant] she refers to herself in the third person.”

18 Ms Despina Liamakeros described herself as a carer engaged in numerous houses in the Bankstown area, including that occupied by the appellant. Her statement included the following paragraph:

“[The appellant] has issues with Lebanese Moslem people. Some days [the appellant] wakes up thinking she is a Lebanese Moslem person. Sometimes she eats Lebanese food and would wear a scarf around her head to imitate traditional Moslem clothing. [The appellant] has said in the past, ‘I want to have sex with Tony so I can have a Moslem baby.’”

19 Maria Chirinos, also a carer, stated:

“ … [the appellant] suffers from schizophrenia. [The appellant] goes to medical centres frequently and self medicates on prescribed drugs because as she has told me ‘I hear voices and I want to stop the voices telling me what to do’. As far as I know [the appellant] has not been consistent in taking her medication.”

The determination of the judge

20 In conventional form, and in compliance with the requirements of s 21B(2), Nicholson DCJ stated the principles of law and the findings of fact which led him to his decision. It is the manner in which he went about this that gives rise to the challenge to his verdict.

21 The grounds of the appeal are stated as:

“(1) … that the special hearing judge erred by misdirecting himself in respect of the requisite specific intent;
(2) … that [the verdict] was unreasonable and/or it cannot be supported having regard to the evidence.”

22 Having regard to the limited nature of the issues in dispute, it is unnecessary to deal in detail with the reasons of Nicholson DCJ. He correctly directed himself as to the elements of the s 33 offence. These he stated as:

· that the appellant maliciously wounded the complainant;

· that, at the time she did so she intended to cause grievous bodily harm.

23 There was no dispute that the complainant had been wounded; nor, as emerged during the oral argument on the appeal, was there any dispute that the appellant had acted “maliciously”. Nicholson DCJ reminded himself that “malicious”, for relevant purposes, meant:

“ … the accused’s acts were deliberate, unlawful and intended acts.”

24 He also directed himself, for the purposes of the first element, that he could not find that the appellant had committed the act unless satisfied beyond reasonable doubt that the appellant had intended some injury or injuries, although not necessarily precisely those that were inflicted. In reaching that conclusion, Nicholson DCJ explicitly referred to the evidence concerning the appellant’s psychiatric condition (limited though it was).

25 His Honour then went on to say:

“50. For the purpose of assessing the accused’s intent, it is also important to remember she had the knife, it was raised when the complainant was at [the shop]. Had the complainant not turned, I am satisfied the knife was aimed towards the complainant’s rear, although which specific part I cannot tell. The knife was above the complainant’s shoulder in height. Her shoulders, the nape of her neck and her upper back were all within the target area. That area houses the lungs, heart and several vital arteries. Any injury to that area was likely to compromise one or other of those organs or vessels. Until the complainant turned, all that area was vulnerable and undefended.
51. I am satisfied the accused has mental health issues.”

26 His Honour then spelled out, at some length, some instances of behaviour on the part of the appellant that illustrated the nature of the appellant’s “mental health issues”. With reference to what the appellant had said about “James” and the circumstances that led her to her behaviour, the transcript records his Honour as saying:

“54. The evidence is silent as to who James is – and whether he exists in reality or only in the accused’s mind. However, what appears as inevitable from this conversation is that the act of stabbing was willed by the complainant (sic – appellant) whether as a consequence of being instructed so to do or on her own account. The reasoning causing the willed act is obscure.
55. That evidence, taken with earlier admissions, her act in coming armed with a knife, her three actions in raising a knife as though to stab and doing so on two occasions, satisfies me the accused clearly intended to stab the complainant. Further I am satisfied she intended to stab the complainant with sufficient force to penetrate through the skin into the red flesh of her victim. The fact that her hand was raised three times, first to areas of the upper back and nape of the neck and aimed then two times at the chest, satisfies me the accused was determined to injure the complainant.
…
57. I am satisfied she retained that intention when she stabbed the complainant on the two other occasions. In those circumstances I am satisfied, beyond a reasonable doubt, the accused intended to inflict grievous bodily harm or really serious injury.”

His Honour then proceeded to the finding I have already mentioned.

27 The appellant’s written submissions commence by extracting and quoting s 21B(2) of the Act, requiring that a determination by a judge following a special hearing include the principles of law and the findings of fact the basis of the determination. It was observed that the provision is mandatory and failure to comply with it gives rise to error: R v Zvonaric [2001] NSWCCA 505; R v Minani [2005] NSWCCA 226; 63 NSWLR 490 were cited as authority.

28 So much is uncontroversial. In Hawkins v The Queen [1994] HCA 28; 179 CLR 500, the High Court held that evidence of mental illness is relevant to the question whether the act of an accused is done with the specific intent charged.

29 The complaint that is now made is that Nicholson DCJ failed to take that circumstance into account in this respect.

30 It was acknowledged that Nicholson DCJ did make a finding (to which I have referred above) that the appellant was suffering from a mental illness at the time of the stabbing. What was argued was that, on analysis of the decision, it could be seen that his Honour took the evidence of mental illness into account when considering whether the Crown had proved that the appellant had acted maliciously, but failed to do so when considering whether it had also proved that the appellant had acted with the specific intention of causing grievous bodily harm.

31 I do not accept this criticism. It involves too clinical a dissection of the reasoning process of Nicholson DCJ. It overlooks the express finding, in the second last sentence of paragraph 54, that the act of stabbing was a “willed” act. It is of significance that that followed the opening words of paragraph 50, when, his Honour turned his attention to the question of “specific intent”; and his reasoning concerning the manner in which the appellant held the knife, directed at the complainant’s vital organs.

32 Further, the actual evidence of mental illness was not of the kind which could realistically advance the question of whether the appellant had formed the necessary intent. Mr Beman’s evidence was that she had “some type of mental illness” and heard “voices in her head”; Ms Cole gave only vague evidence of apparent withdrawal by the appellant. Ms Chirinos did give evidence that the appellant suffered from schizophrenia and heard voices. None of these witnesses was expert and none could or did give any evidence concerning the impact of what they described on whether the appellant could or did form the necessary intent.

33 I would reject this ground of appeal.

Ground 2

34 The second ground of appeal is that the conviction was unreasonable, and is in many respects similar to the first – that is, to the question of whether the evidence was sufficient to establish an intent to cause grievous bodily harm. Having regard to the evidence to which I have just referred, as well as the evidence to which Nicholson DCJ referred, I am satisfied that this ground of appeal ought to be rejected.

35 I propose that the appeal be dismissed.

36 HISLOP J: I agree with Simpson J.

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