McGrath v The Queen

[1994] HCATrans 284

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P8 of 1993

B e t w e e n -

DANNY REX McGRATH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J McHUGH J

McGrath 1 22/4/94

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA ON FRIDAY, 22 APRIL 1994, AT 1.06 PM

Copyright in the High Court of Australia

MR J.L.K. MARSHALL:  May it please Your Honours, I appear

for the applicant. (instructed by George Giudice)

MR A.N. HOPE:  May it please the Court, I appear with

MR N.J. TWEEDIE, for the respondent. (instructed

by the Director of Public Prosecutions (Western

Australia))

BRENNAN J: Yes, Mr Marshall?

MR MARSHALL:  Your Honours, this is a case where the

applicant, you will have read, was convicted for

wilful murder and there were three verdicts of not

guilty by reason of insanity in relation to three

other killings. The three other killings, of

course, being his wife and his two children. All

these killings occurred at the same time.

What underpinned the jury's verdict and what

underpinned the decision of the Court of Criminal

Appeal was the proposition that the applicant was

not sane when he clubbed, or battered, Donaldson,

the drug dealer, to death with a baseball bat, and

he crossed the borderline from sanity to insanity

at a time when he assaulted his wife. What the

applicant says is that there is no basis for the

Court of Criminal Appeal concluding as it did that

the cross-examination of Dr Rollo revealed that his
opinion was that the applicant was sane until he
assaulted his wife.

What the applicant says is that this properly fits within section 35A(b) of the Judiciary Act in

that it is in the interests of the administration

of justice in this particular case for a grant of

special leave to be forthcoming.	The Court of
Criminal Appeal - - -

GAUDRON J:  Even so, you have to point to some error, do you

not, in the trial process, not merely in the

appellate procedures.

MR MARSHALL:  I do, I think, Your Honour. That is right.

The Court of Criminal Appeal dismissed the appeal

and a very quick way of demonstrating the error by

the Court of Criminal Appeal is simply to look at

page 9 of the appeal book, the cross-examination of

Dr Rollo at lines 15 to 35. At that point the

Crown prosecutor, line 30:

You heard the cross-examination about the

decision-making processes that led up to his

striking of his wife on the head with the

rifle butt that I asked him about as well this

morning?---Yes.

McGrath 2 22/4/94

Would that also indicate to you whether or not the mental illness that you have described had

taken over control of his capacities at that

stage?---As I heard the evidence, I thought it

possible that he could have been regarded as

in control. I'm not completely sure.

That was one point of the evidence of Dr Rollo.	If
one contrasts that with the re-examination at
page 12 when Mr Wallwork, counsel for the defence, between lines 20 and 45, puts to Dr Rollo at
line 30:

Having the benefit of my learned friend's cross-examination, doctor, and His Honour's

questions, is it still your opinion that, as

nearly as you can judge, the change-over point occurred as or after he pulled the trigger and

shot Craig; thereafter he could be regarded as

insane? Is that still your opinion?---No. I

would be inclined to put it a little further

back. Having heard the evidence, it is
possible that he was still responding to

reality factors - recalling his wife's

unfaithfulness - at the time he hit her but I

cannot be precise. At some time, he lost the

capacity to reason sufficiently well.

When would you put it then, as best you

can for the assistance of the jury, you being

the expert?---I am so sorry. I would have to

say I cannot say. I see him at one point in

Fremantle Prison as clearly insane and one has

to go back to some uncertain time during the

events of Friday and Saturday when he became

insane. I find it impossible to put a precise

time to it.

You will have read the evidence of Dr Rollo

and you will have read his report, as or at the

time he pulled the trigger, remembering that he was

bludgeoned to death with the baseball bat. The	shooting, which put shotgun pellets to the left
shoulder, preceded that. Following on from bludgeoning with a baseball bat because the devils
were coming out of the deceased's mouth, he then went to the bedroom and that is when the incident
took place with his wife. How then did the Court
of Criminal Appeal deal with the matter?

BRENNAN J:  How does the evidence that you have just

referred us to support your attack on the jury's

verdict?

MR MARSHALL:  The jury's verdict was that he was sane at the

time he killed Donaldson with a baseball bat.

McGrath 3 22/4/94

BRENNAN J: That is what Rollo says, is it not?

MR MARSHALL:  What Dr Rollo says as to the insanity is that

it would be a little further back from the time he

pulled the trigger and shot Craig.

GAUDRON J: Is it closer to the wife's murder?

MR MARSHALL:  No, what is being said, the change-over point

occurred as or after he pulled the trigger and shot

Craig. What the Court of Criminal Appeal says is

that - - -

BRENNAN J:  No, but how does that evidence do otherwise than

explain and support the jury's verdict?

MR MARSHALL:  Because it supports the proposition that he

was insane prior to pulling the trigger, therefore, prior to hitting him with a baseball bat and prior to attacking his wife.

BRENNAN J:  You are misreading the evidence there, if I may

say so, with respect, Mr Marshall.	The
re-examination misfired.

MR MARSHALL:	The re-examination sets out:
I would be inclined to put it a little further
back.

BRENNAN J: Later, that means.

MR MARSHALL:	No, further back.
BRENNAN J:	Look what follows it and see.
MR MARSHALL:

Having heard the evidence, it is possible that

he was still responding -

et cetera. That is certainly not misreading the

evidence, with the greatest of respect.

McHUGH J:  He goes on to talk about:

recalling his wife's unfaithfulness - at the

time he hit her but I cannot be precise.

He seems to be -

MR MARSHALL:  Look, there is no doubt about it, that the

evidence of Dr Rollo - and it is between pages 6 to

12, and based on his report, is at a time he pulled

the trigger. At a time he pulled the trigger was

before using the baseball bat.

McGrath 4 22/4/94

BRENNAN J:  Mr Marshall, unless you can demonstrate that

Dr Rollo's evidence at the end was firmly in favour of the proposition that insanity supervened before

he pulled the trigger, you have not got a case,

have you?

MR MARSHALL:  I have got a case as long as I can demonstrate

the insanity took place before he used the baseball

bat.

BRENNAN J:  Can you demonstrate that anywhere?

MR MARSHALL:  I can, easily. By starting with Dr Rollo's

evidence at the top of page 8, line 1:

As best you can judge, that change-over point. occurred as or after he pulled the trigger and shot Craig?---Yes.

So the change-over point means the change from

sanity to insanity. That preceded the use of the

baseball bat and it is the use of the baseball bat,

as His Honour the Chief Justice correctly said at

page 38, line 15, and page 37, line 20 - the

question was, was the applicant insane at the time

he commenced hitting Donaldson with a baseball bat.

GAUDRON J: That was a question on which the defence bore

the onus of proof, too, was it not?

MR MARSHALL:	Yes, clearly.
GAUDRON J:	And the evidence was by no means all one way on

this issue, was it?

MR MARSHALL:  No, the evidence was not all one way. But

when you analyse the reasons for the Court of Criminal Appeal, it is very very clear, in my

respectful submission, that we start off with

Dr Rollo's report that when the change-over point occurred, as or after he pulled the trigger and

death with a baseball bat - there was a wounding as	shot Craig, bearing in mind that the bludgeoning to
a result of the shotgun wound to the shoulder. The
killing was as a result of using the baseball bat. reasons in the Court of Criminal appeal at page 33
of our book, line 40, says between lines 40 and 50: During his cross-examination by counsel for

the Crown, Dr Rollo agreed that the point when the incapacity.arose and the applicant crossed the border between sanity and insanity was the

time at which the applicant had assaulted his

wife when he tried to take the gun from him.

McGrath	22/4/94 That, in my respectful submission, is not something
which was said by Dr Rollo, and if you compare it
with the actual cross-examination at page 9,
line 35, one simply cannot derive that it was at that time that he went insane.

GAUDRON J: Regardless of what the Chief Justice said, the

question must remain, does it not, whether there

was evidence on which the jury could reach the

conclusions that it did.

McHUGH J: Could they not do that on Dr Stamfer's evidence?

MR MARSHALL:  Dr Stamfer's evidence was certainly unclear

and the evidence of Dr Stamfer, and I do not know

whether it is before you, but when asked about the

dividing line at page 434 of the book before the

Court, he is asked, "Can we agree that he had not

lost it, on your view, at the stage at which he

killed Donaldson, and he had certainly lost it at

the stage at which he killed his children?" So

there are two propositions in that question and the

answer is, "I think so, no doubt of that. But

within that ambit we do not know where the dividing

line is. I could not say where the dividing line

was and I would like to know who could."

So the evidence that Dr Stamfer - and then, of course, there is the psychologist's evidence and

one has to bear in mind simply the evidence of a

psychologist. That evidence from the

psychologist - - -

BRENNAN J:  Does that not mean that you were unable to

discharge the onus of proof?

MR MARSHALL:	Your Honour, it certainly does not.
BRENNAN J:	Why does it not?
MR MARSHALL:

the onus of proof is we have got clear evidence Why it means that we were able to discharge

from Dr Rollo that he put it:

I would be inclined to put it a little further

back.

I agree that if Your Honours interpret "I would be inclined to put it a little further back" as

meaning at a time closer to the killing of the

wife, well, I have not got a case. But certainly,

I would respectfully suggest, when he is saying "I

would be inclined to put it a little further back",

it means back in time, not forward in time. Not to

when he killed the children, or killed his wife,

but back prior to using the shotgun against

McGrath 6 22/4/94

Donaldson and prior to using the baseball bat

against Donaldson.

So I would ask Your Honours to look very

closely, and I know you have, at that portion of

the evidence. So that is the clear evidence which

would sustain the proposition that there was

insanity prior to the using of the baseball bat.

Even if it was put as or at the time he pulled the

trigger, it is still prior to using the baseball

bat, which was what brought about the killing.

So we say that there is no basis for the

Chief Justice concluding as he did, and you do not

even need to go to Dr Rollo's affidavit, which we

would put in the basis of being explanatory that

Dr Rollo's affidavit - - -

BRENNAN J:  We certainly would not be accepting evidence

which is not before the Court of Criminal Appeal.

MR MARSHALL:  But what I would ask Your Honours to do is to

treat Dr Rollo's affidavit in this way, that it is

not fresh evidence in that sense and I am not

seeking to - - -

McHUGH J:  I certainly will not be treating it - I regard it

as bordering close to improper that the affidavit

was even put before this Court. I mean, it

attempts to argue what a witness meant by his own

evidence.

MR MARSHALL:  Your Honour, as to the impropriety as is

suggested by Your Honour:  Your Honour has no doubt

appreciated that the applicant is now in gaol

serving 20 years imprisonment. Your Honour will no

doubt appreciate that he is now of sound mind.

Your Honour will no doubt also appreciate that the

conviction which he is now convicted of
occurred at the same time he was found not guilty

but insane about other matters and there is medical

evidence to support the proposition that he was

insane.

BRENNAN J:  What is the relevance of all of that to the

impropriety?

MR MARSHALL:  I would suggest, Your Honour, that there is

simply no impropriety whatsoever where an affidavit

is obtained to assist the Court in order to explain
the position. There are no fresh facts but

material to assist the Court to appreciate the

facts already before the Court.

BRENNAN J: Perhaps there is a misunderstanding of what

propriety is. It has to do with an understanding

McGrath 22/4/94

of appropriate professional standards, not facts of

cases.

MR MARSHALL: In my respectful submission, this Court could

not deny itself the help of the light that

Dr Rollo's affidavit is capable of throwing on the

matter in dispute. Where you have got a clear

statement by a very eminent psychiatrist saying

what he has, explaining, seeking to assist, and

clarify matters, this Court should not turn its

back on the assistance being offered in that way.

McHUGH J:  The problem is that he attempts to argue in his

affidavit the effect of his evidence before the

jury.

MR MARSHALL:  Could I leave it on this basis, Your Honour,

that I do not need to rely on what Dr Rollo says to

succeed with this application. It is plainly

obvious when looking at the nature of the evidence

that was given that when Dr Rollo says that he

would be inclined to put it a little further back,

that he is putting the time at which insanity

supervened at an earlier time - - -

GAUDRON J:  Mr Marshall, you have said that several times

and you simply fail to read on to the remainder of
the doctor's answer, which clearly is against the

proposition you put. Clearly.

Having heard the evidence, it is possible that

he was still responding to reality

factors ..... at the time he hit her -

referring back to his wife.

MR MARSHALL:	And then it goes on:
At some time, he lost the capacity to reason
sufficiently well.

And then he cannot actually put a time on it:	I see him at one point in Fremantle Prison as
clearly insane and one has to go back to some
uncertain time during the events of Friday -

which is the day before, and is not even - he is

putting it back. If one does read on one can see

it goes back to Friday which is a day before the

incident occurred, .the incident having occurred in

the early hours of the Saturday morning. So

reading on is helpful but you have still got no

clarity, with respect, Justice Gaudron, to the

actual time.

McGrath 22/4/94

But certainly you have to go back, and my

respectful submission is that this is a case where

this Court should grant special leave and allow

these matters to be fully ventilated on appeal.	It
is a clear case where we can demonstrate that the
Court of Criminal Appeal in Western Australia was
wrong by saying that it was when the wife
intervened that triggered the period of insanity.
It is just simply wrong. Look at the applicant's
behaviour, completely bizarre behaviour that he
engaged in prior to beating Donaldson with a

baseball bat. It is clearly open, in my respectful

submission, on that behaviour, together with the

psychiatric evidence for a jury to find that at the

material time the applicant was insane - - -

McHUGH J: That is not the issue, the issue is whether or

not the Court of Criminal Appeal was required to

find that a reasonable jury was bound to find that

he was insane. That strikes me as bordering on

hopeless.

MR MARSHALL:  There was evidence, with respect, Your Honour,

that a reasonable jury could make the finding.	The
evidence - - -

BRENNAN J: There is no question of "could make the

finding": did they have to make the finding?

MR MARSHALL:	On the basis of three people being killed, the jury has said that he is insane on the other three
but not the first one.  It is arbitrary and it does
not stand up to common sense or, indeed, any other
test to have someone for one second being sane; the
next second being insane. It just does not make
sense.  And you have got, as I say, someone in gaol
for 20 years on the basis of the decision that has
been made. In my respectful submission, this is a
proper case where there should be great unease felt by the Court as to the disposition of this appeal,
heard on 4 April, dismissed on 4 April. In my
respectful submission it is a case where we have
demonstrated that the administration of justice
demands that this Court intervenes.
BRENNAN J:	I think your time is up, Mr Marshall.
MR MARSHALL:	Thank you, Your Honours.
BRENNAN J:	We need not trouble you, Mr Hope.

There is no reason why the jury should not

have returned the verdicts which they did. Those

verdicts were fully consistent with the evidence.

McGrath 9 22/4/94

There was no miscarriage of justice. Special leave

is refused.

AT 1.28 PM THE MATTER WAS ADJOURNED SINE DIE

McGrath 10 22/4/94