McGrath v The Queen - [1994] HCATrans 284

~ -... ~·~

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

22/4/94

TRANSCRIPT OF PROCEEDINGS

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGrath v The Queen

Details

AGLC: McGrath v The Queen [1994] HCATrans 284
Case: [1994] HCATrans 284
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, who had been convicted of wilful murder, sought to challenge the decision of the Court of Criminal Appeal of Western Australia. The applicant's conviction arose from a series of killings that occurred at the same time, during which he also committed three other killings for which he was found not guilty by reason of insanity. The central dispute concerned the timing of the applicant's descent into insanity, specifically whether the Court of Criminal Appeal erred in its assessment of expert psychiatric evidence regarding this transition.

The legal issue before the High Court was whether the Court of Criminal Appeal had made an error in its determination that the applicant was sane until after he assaulted his wife, and that the applicant's transition to insanity occurred at some point after that assault. The applicant contended that the Court of Criminal Appeal's conclusion was not supported by the evidence, particularly the cross-examination of Dr. Rollo, a key psychiatric expert. The applicant argued that the interests of justice warranted the grant of special leave to appeal to address this alleged error in the appellate process.

The applicant's argument focused on specific passages from the transcript of Dr. Rollo's evidence. During cross-examination by the Crown prosecutor, Dr. Rollo indicated it was "possible that he could have been regarded as in control" at the time of the assault on his wife, but expressed uncertainty. However, during re-examination by the defence, Dr. Rollo stated that, having heard the cross-examination, he would be inclined to place the change-over point from sanity to insanity "a little further back" than the shooting of Craig, acknowledging it was possible the applicant was still responding to reality factors at the time he hit his wife, but he "cannot be precise." Dr. Rollo ultimately stated he found it "impossible to put a precise time" when the applicant became insane, though he saw him as "clearly insane" at one point in prison. The applicant argued that the Court of Criminal Appeal had misinterpreted or misapplied this evidence, failing to recognise the ambiguity and the expert's concession that the applicant might have lost capacity to reason earlier than previously suggested.

Orders