Maloney v The Queen

[2003] HCATrans 616

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2002

B e t w e e n -

DARREN BRADLEY MALONEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 11.11 AM

Copyright in the High Court of Australia

MR S.J. HAMLYN‑HARRIS:   If it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

MRS L.J. CLARE:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:   Is there some question about you acting in the matter?

MR HAMLYN‑HARRIS:   No, there is not, your Honour.  That has been resolved and I have instructions to act and to proceed with the application.

McHUGH J:   Thank you, Mr Hamlyn‑Harris.

MR HAMLYN‑HARRIS:   Your Honours, there is an application for an extension of time and the affidavit of Patrick John O’Brien addresses the reasons for the delay in the filing of the application.

McHUGH J:   Yes, I think – address the substance of the matter.

MR HAMLYN‑HARRIS:   Thank you, your Honours.  Your Honours, the principle that juries should not be distracted by extraneous considerations is not in dispute and, in fact, that is the very basis on which it is submitted that the prima facie rule in Lucas v The Queen should not be followed.  The Court of Appeal effectively acknowledged that the law as it stands in Australia is as stated in Lucas v The Queen and that is that the ‑ ‑ ‑

McHUGH J:   They can hardly do otherwise.

MR HAMLYN‑HARRIS:   No, that is so, your Honour.  The general rule is that it is undesirable and unnecessary that a jury be informed of the consequences of a verdict of not guilty on the ground of insanity and the rationale stated in Lucas v The Queen is that there is no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is, so far as the jury are concerned, an extraneous matter.

The directions given by the learned trial judge in this case are consistent with that principle and with the statement of the law in Lucas v The Queen.  This particular case is one where the jury raised the issue during the course of the trial as to what the consequences might be of their respective verdicts.  Also, it is a case where the evidence strongly suggested that the applicant was dangerous and also a case where it was not in issue in the way in which the trial was conducted that he had, in fact, killed the deceased.

Your Honours, juries, in my submission, undoubtedly know what the effect of an acquittal is when the choice offered to them is either guilty or not guilty, but there is nothing to tell the jury in a case like this that an acquittal on the grounds of insanity is any different in terms of its consequences to an outright acquittal.

KIRBY J:   It seems to me that the jury having asked and the defence counsel having requested a responsive direction, it would have been open to the judge to give a responsive answer to the jury’s question and that does not seem to be in doubt in the authority of Lucas.  Lucas does not say to the contrary of that I think.

MR HAMLYN‑HARRIS:   No, that is so, your Honour.

KIRBY J:   Therefore, the real issue is whether in the particular circumstances of this case, the jury having asked and defence counsel having sought and the verdict having come in of guilty of murder, the judge was bound to give a responsive answer or that the failure to give a responsive answer amounts to a risk of a miscarriage of justice in the particular case.  In short, do we add a qualification to Lucas that elevates Justice Thomas’ statement to, as it were, a rider that loosens up the principle in Lucas?  That is the issue of principle that we are faced with.

MR HAMLYN‑HARRIS:   Yes, with respect, your Honour.

KIRBY J:   It seems to me the choice before us is either here and now to say that we endorse what Justice Thomas said, that it would have been open in these circumstances, and leave it at that in the circumstances of this trial and the facts of this case or whether there is a prospect that you would succeed in getting a new trial in coming to the High Court.  So that really is where it narrows down to.  Am I wrong in that analysis or right?

MR HAMLYN‑HARRIS:   No, with respect, that is correct, your Honour.

KIRBY J:   Why is it not enough for us just to say that Justice Thomas was correct, that it would have been open to the judge – this is at 56 at the bottom of the page:

In my view, the jury having asked the question, and the defence counsel having requested a responsive direction, and the case suggesting as it did that the appellant was a dangerous person, it would have been within the learned trial judge’s discretion to have given such a direction.

I think that is right and I therefore start my consideration from that premise.  Why is it not enough for us simply to endorse that in your particular case?

MR HAMLYN‑HARRIS:   Your Honour, in my respectful submission, it is much more consistent with the underlying principle that juries should not be distracted by extraneous considerations that they should virtually as a matter of course be told when insanity is raised as an issue for their consideration what the consequences of a verdict of not guilty on the grounds of insanity would be.

KIRBY J:   Justice Pincus, at paragraph [4] on page 51 says that he was:

inclined to the view that it is best for judges not to give directions about such topics –

Is that the issue of principle that is presented to this Court, that whilst ever Lucas stands and whilst judges take the view that Justice Pincus takes, then juries will not be told what will happen in cases of this kind if they bring in a particular verdict and that in today’s age juries should be informed so that we treat them as rational decision‑makers, not as automatons simply responding to limited questions.

MR HAMLYN‑HARRIS:   Yes, but, in my submission, that is the issue of principle.

McHUGH J:   In fact, it appears that both Justice Pincus and Justice Moynihan thought that no direction should be given at all.

MR HAMLYN‑HARRIS:   Yes.

KIRBY J:   In that sense this case presents the issue of principle clearly.  We have the majority saying the judge did the right thing, do not confuse the jury, do not give them this even when they ask, and you say, especially where they ask but in any case they should be told so that they know what follows from their verdicts because it may be that that will trouble them and, if it troubles them, it should be a trouble that is put out of their mind or taken rationally into account as a decision‑maker in the trial, having a very significant consequence for the verdict that they enter.

MR HAMLYN‑HARRIS:   That is my submission, your Honours, and the difficulty with Lucas is that the prima facie rule is that they should not be told.  Whilst it is recognised that there may be circumstances in which they could, it is suggested that they would be exceptional.

KIRBY J:   Can you address the issue of how, in this case, given the question, it might have had a different consequence for your client.  Just tell me a bit more about the circumstances of the offence and of how that could have affected the jury’s coming to a different verdict if they had only been told what the consequence of the alternative verdict was.

MR HAMLYN‑HARRIS:   Your Honour, the main issue was that there was a great deal of evidence, strong evidence, to suggest that the applicant was dangerous.  There was also a wide variation in the psychiatric opinions expressed by the six psychiatrists, with some being strongly in favour of a defence of unsoundness of mind and others being strongly against.  So the issue for the jury was a very difficult one and they were obviously concerned, one would think from the questions to the judge, about the consequences in terms of dangerousness if they were to acquit the applicant on the grounds of insanity.

KIRBY J:   You say that given the balance of the evidence this might have tipped a jury in a situation of uncertainty into entering the verdict of guilty of murder.

MR HAMLYN‑HARRIS:   In short, that is my submission, your Honours.

McHUGH J:   Being realistic about it, the fact is that juries are very unhappy about defences of insanity.  When I was at the Bar I was in a case where the Crown psychiatrist at first said that the accused was sane, but having heard him make a statement for many hours from the dock he changed his view in the witness box and said that he was insane, but the jury rejected the defence.  That has happened more than once in New South Wales.  There has been unanimous ‑ ‑ ‑

MR HAMLYN‑HARRIS:   Yes, no doubt juries are very sceptical of those defences, but this is a case where there was strong expert evidence on one side of the argument to support the defence, where it was clearly open to the jury if they were to accept that evidence, to acquit on the ground of insanity.

KIRBY J:   There was some objective too.  He picked up the knife the day before at another woman’s place and he had no relationship with the person that he stabbed, I think, and he just killed her.

MR HAMLYN‑HARRIS:   I am sorry, your Honour, I think from recollection that he knew her, but that is correct, he had stolen the knife from another woman’s place a few days before and used that knife to kill the deceased.  There was a lot of other evidence about what could be described in an overall sense as bizarre or unusual behaviour by him as well.  The question in terms of the expert evidence was whether this was a manifestation of schizophrenia and indicating that he was of unsound mind at the time of the killing or whether it was a manifestation of, in effect, a severe personality disorder.

Your Honours, the case of Lucas is based effectively on an assumption that if told that the consequences of their verdicts are irrelevant they will be able to get on with their task without any distraction, but in the Victorian case of Weise [1969] VR, the judgments of Justice Barry and Justice Adam suggest that it was common in Victoria, at that time at least, for judges to inform juries of the consequences of an acquittal on the grounds of insanity so as not to distract them from their task and, in fact, to avoid them being distracted by misinformation.

In both New South Wales and in the ACT there is now legislation which requires juries to be told when the issue is raised what the legal and practical consequences are of acquittal on the ground of insanity.

McHUGH J:   One of the ironies is that this Court has said on hundreds of occasions that what is said on special leave judgments is no authority and special leave was refused in Lucas.  So notwithstanding it is a reported case in the Commonwealth Law Reports, strictly speaking it is not an authority for anything.

MR HAMLYN‑HARRIS:   Yes, and, your Honour, in that case interestingly enough the High Court was of the view that there was no evidence to support the defence of insanity in the first place, so that the issue that is raised in the present case did not really present itself in such an acute way in Lucas.  Also, in the earlier case of Brown v The Queen the real issue for the Court was the fact that in the addresses to the jury counsel had said certain things which are referred to in the High Court decision in Brown v The Queen, 33 ALJR at 93. The Crown Prosecutor had said to the jury and I quote – this is a quotation from his Honour’s directions in that case:

Mr Chamerlain points out that if you acquit him, gentlemen, the accused may ultimately kill someone else.  Well, gentlemen, you are not to concern yourself with the consequences of your verdict –

and as the judgment of the High Court says on page 94:

the introduction and treatment of the question whether a verdict of not guilty on the ground of insanity might result in Brown’s killing someone else could hardly operate otherwise than to distract the minds of the jury from an unprejudiced consideration of the defence of insanity.

The point that I seek to make is that in that case the issue was really quite a different issue from the one which we are concerned with in the present case.  In fact, in the case of Gilbert v The Queen 201 CLR, which is on a different issue, I refer to the judgment of the Chief Justice and

Justice Gummow at pages 420 to 421 where their Honours refer to the question of assumptions as to how juries approach matters.  Their Honours say on page 420:

The system of criminal justice . . . does not involve the assumption that their decision‑making is unaffected by matters of possible prejudice.

That was a case where the issue was quite different.  The issue was whether manslaughter should have been left to the jury, which would have, in a practical sense, afforded the jury an alternative between an outright acquittal and a conviction of murder.

Your Honours, my submission is that there is a much lower risk of a jury being distracted by extraneous and irrelevant considerations if they are told as a matter of course what the consequence of a verdict of not guilty on the ground of insanity is and, in my submission, the prima facie rule at least should be that juries should be informed.  Thank you, your Honours.

McHUGH J:   Yes, I think I was in error when I said in Lucas that the case is not an authority because leave was refused.  It was refused in respect of some matters but the Court extended the time for lodging a notice of appeal and it appeared that in that a point of law was argued and it was that the trial judge was bound as a matter of law to inform the jury.  So it is a precedent case.  Yes, thank you.  Yes, Mrs Clare.

MRS CLARE:   If the Court pleases.  If the concern is that there needs to be authority for the proposition that a direction as to consequences should be open when it is in the interests of justice to do so, it is submitted that there is already that authority.  In Lucas itself it seems implicit in the judgment, particularly at page 175, where the Court recognises that there will be occasions where it is appropriate to give such a direction. In the third paragraph ‑ ‑ ‑

KIRBY J:   Yes, Mr Hamlyn‑Harris opened by saying that Lucas only establishes a prima facie rule, so he accepts that it is a prime facie rule, but it does seem to be one that has a lot of supporters out there and the issue is, in the light of what was said in Gilbert about juries understanding and following the course of trials, whether the intervening years – that is 1970, that is 33 years – we have come to a point that we acknowledge and respect the capacity of the jury to understand rationally what they are doing.  Therefore, especially where they ask, but even where they do not ask, they should be told what follows from what they do rather than being left in the dark and really not being treated as full participants in the administration of justice.  That is the question.

MRS CLARE:   Yes, thank you, your Honour.  If I could just take that point of Gilbert.  Gilbert, although the joint judgment speaks in terms of consequences and the need on occasion to explain to the jury the consequences, it is, with respect, in a very different context.  The issue there was whether or not a particular verdict should have been left open to the jury, that is, that it did not concern an issue of an outcome of the verdict as in terms of sentence or release.  It concerned the issue of whether a particular version of the facts, if accepted by the jury, would amount to a not guilty verdict or a verdict of manslaughter.

McHUGH J:   But the reasoning in Gilbert seems to proceed on the basis that the jury may have convicted of murder in that case only because they had no alternative to acquitting him if they did not convict him of murder.

MRS CLARE:   Yes, and the issue that was at the heart of the misdirection was the question of criminal responsibility, which, of course, was the very issue for the jury.  This is a different issue which is outside of the jury’s area of responsibility.  If it is necessary to take the Gilbert issue further, this case can be distinguished because it is not a case where the jury were deprived of a compromised verdict. 

The issue of diminished responsibility was left to them.  So that if the jury took the view that this particular applicant was impaired but were concerned that there should be a verdict of homicide to protect the community, it would seem that that would be the logical choice, that is, a verdict of manslaughter, but that was not the approach of the jury.  They determined that this was a case of murder.  So it is not, with respect, a different case to Gilbert where the jury did not have the option of a manslaughter verdict open to them.

KIRBY J:   But the complaint is here they did have a verdict open to them but that they were not told, although they asked, what would follow from it and therefore being concerned as to an unexplained consequence they retreated in a finely balanced factual circumstance to take the safe course and convict of murder and that that is not a just outcome according to law.

MRS CLARE:   With respect, to say that it was a finely balanced outcome ‑ ‑ ‑

KIRBY J:   I am referring there to the different psychiatric reports.  I think there were three who took one view and three who took another, and two who were in between, something like that.

MRS CLARE:   There were three that said that there was no defence, two that said that this man was insane and one which said diminished responsibility.  But there was other evidence, as has been pointed out, objective evidence, that would favour a finding against mental illness or incapacity.  That related not just to the evidence of planning but also there was a suicide tape, which was accepted was a lucid tape recording made by the applicant just after the killing.  There was also evidence of malingering by the applicant, that he had, for example, put on a crude show of contacting the devil, even though psychiatrists in his favour accepted that it was a performance of acting rather than a true difficulty for him.

If I can take the idea of this case one step further, keeping the same factual scenario but adding to it one further dimension, and that is an alibi, position of alibi by the applicant.  If all of the other evidence about how dangerous he was and the evidence of his guilt were led but the defence further led evidence that he was not in the district at the time, the jury would have as a possibility open to it the question of a complete acquittal. 

If the issue then arose of how to placate them as to their concerns about the safety of the community and the consequences that would follow, it would appear if we were, for example, adopting the course of the legislature of New South Wales and the ACT of describing the consequences for all possible verdicts, the judge would have to not only explain the outcome of prison sentences for the verdict of guilty or treatment under the Mental Health Act or the special verdict, but would have to explain to the jury that this particular accused could be liable to be set free if they determined that they were not satisfied that he was the offender.

All that would do, with respect, or what it would have the potential to do, would be to prejudice him in his right to a complete acquittal, because if the jury were convinced that he was dangerous and still had some doubt about whether or not he in fact committed the offence, they may still be tempted to go to the course which provided some level of safety, and that would not be a proper verdict.  So, with respect, that type of consideration really demonstrates the danger in a case like this.

McHUGH J:   Yes, that may be if you are considering whether or not to have a fixed rule of law that you should always direct a jury.  But what concerns me to some extent is that notwithstanding what this Court said in Brown v The Queen and again in Lucas, the judgment of Justice Pincus and Justice Moynihan seemed to have turned the discretion into a fixed rule that you just would never give the direction or almost never give the direction.

MRS CLARE:   With respect, on my submission of the effect of what Justice Moynihan says is to agree with Justice Thomas, that it really is the position of the interests of justice, because he says at page 57 or he recognises that it may be appropriate in a particular case to give the jury the consequences of a verdict but at the same time he stresses that it must be

made clear to the jury that those sorts of considerations about consequences are irrelevant to the jury’s task.

McHUGH J:   The way I read it was that if the question is asked by the jury and therefore it is appropriate for the judge to answer it, it is best to do so by telling them what the jury’s role is and the consequences of the verdict is outside their area of responsibility.  There is nothing there to indicate that his Honour is saying they should be told what are the consequences.

MRS CLARE:   It seems implicit, in my submission, that his recognition that it “may be appropriate to direct . . . as to the consequences of the verdict” that there will be cases when it is appropriate to direct as to the consequences of the verdict rather than to simply dismiss the question with a lecture on the irrelevancy of the question.

KIRBY J:   Have any other States other than New South Wales adopted a statutory solution to this problem, do you know?

MRS CLARE:   Yes, the Australian Capital Territory has and that legislation is attached to my friend’s material.  I think it is 428P of the Territory’s legislation.  But it is in similar terms where it is the consequences of the findings which is, as recognised in Hilder, a requirement to direct on all possible verdicts that are open when the issue of insanity or mental illness is raised.

So, my submission is that the state of the law as it currently stands, that is, that in an appropriate case where it is in the interests of justice such a direction can be given is the proper position for the common law.  Those are my submissions.

McHUGH J:   Thank you.  Yes, Mr Hamlyn‑Harris.

MR HAMLYN‑HARRIS:   I have nothing further in reply, thank you, your Honours.

McHUGH J:   Thank you. 

The rule in Lucas v The Queen (1970) 120 CLR 171 at 174 is, as counsel for the applicant correctly described it at the outset of this application, a prima facie rule. We agree with Justice Thomas in the Court of Appeal that the jury having asked the question, and the defence counsel having requested a responsive direction, and the case suggesting, as it did, that the appellant was a dangerous person, it would have been within the learned trial judge’s discretion to have given such a direction. Nevertheless, we are not convinced that the Court of Appeal erred in rejecting the argument that an error occurred in this particular case that occasioned a risk of a miscarriage of justice or that otherwise the case calls for the grant of special leave to appeal. In those circumstances, the application is dismissed.

AT 11.43 AM THE MATTER WAS CONCLUDED