McHenry v The State of Western Australia [No 2] - [2010] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McHENRY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASCA 71

CORAM: McLURE P
OWEN JA
JENKINS J

HEARD: 8 MARCH 2010

DELIVERED : 28 APRIL 2010

FILE NO/S: CACR 10 of 2009

BETWEEN: KEITH LINDSAY McHENRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MILLER J
File No  :INS 115 of 2005

Catchwords:

Criminal law and procedure - Admission of new evidence on appeal - Unchallenged psychiatric evidence that offender was of unsound mind - Appeal successful - Whether there should be an order for retrial or judgment of acquittal on grounds of unsoundness of mind

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)(d)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Ms G A Archer SC
Respondent: Mr D Dempster

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Beamish v The Queen [2005] WASCA 62
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Evans v The State of Western Australia [2010] WASCA 34
Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77
Hone v The State of Western Australia [2007] WASCA 283
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Dashwood [1943] KB 1
R v Fleeton (1964) 64 SR NSW 72
R v Jenkins (1963) 64 SR NSW 20
R v Tucker (1915) 15 SR (NSW) 504
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

McLURE P: I have had the advantage of reading the reasons for judgment of Owen JA. I agree with the orders he proposes. These are my reasons for doing so.
The facts are set out in the reasons of Owen JA and not repeated here. The psychiatric reports are 'new' evidence and are (at least) capable of being accepted as true by a reasonable jury and, if accepted, establish that the appellant should not have been convicted of wilful murder. The failure to raise the defence of insanity at trial was not a strategic decision taken on instructions from the appellant. Accordingly, there has been a miscarriage of justice which requires that the verdict of guilty of wilful murder be set aside.
The primary issue in the appeal is whether this court, having set aside the guilty verdict, has the power under s 30(5)(d) of the Criminal Appeals Act 2004 (WA) to enter a judgment of acquittal of wilful murder on account of the appellant's unsoundness of mind and deal with him under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Mentally Impaired Accused Act). Under s 21 of the Mentally Impaired Accused Act, if an accused is acquitted on appeal of an offence on account of unsoundness of mind, the court, if the offence is a schedule 1 offence, must make a custody order in respect of the accused. Murder is a schedule 1 offence.
The scheme of the Criminal Appeals Act is as follows. This court must allow an appeal if in its opinion there was a miscarriage of justice (s 30(3)(c)). If this court allows an appeal, it must set aside the conviction of the offence (s 30(5)). If the court sets aside the conviction of the offence, it must take one of the courses identified in pars (a) to (e) of s 30(5). Under s 30(5)(d) the court must enter a judgment of acquittal on account of unsoundness of mind 'if the court is satisfied that the offender should have been found not guilty of [the offence] on account of unsoundness of mind'.
It is clear the court has the power to act under par (d) if the question of insanity was litigated at trial. There is a line of cases in which courts have concluded that a finding of guilt is unreasonable or unsupported by the evidence where there is unchallenged expert opinion evidence that the offender was relevantly insane at the time of the commission of the offence and there was no evidence to cast doubt on the expert opinion: Hone v The State of Western Australia [2007] WASCA 283 and the cases cited therein.
The issue in this case is whether the court has the power to act under s 30(5)(d) if evidence of insanity has not been adduced at the offender's trial but is new or fresh evidence. It is necessary to sketch the law on that subject.
The existence of new or fresh evidence can, if all relevant conditions are satisfied, give rise to a miscarriage of justice that requires the court to allow an appeal and set aside the conviction. It is the absence of the evidence at the trial that is in effect the miscarriage: Mickelberg v The Queen (1989) 167 CLR 259, 301. The additional evidence (whether new or fresh) must be 'cogent' or 'credible' in the sense that a reasonable jury could accept it as true: Mickelberg, 302. The Court of Appeal must evaluate the additional evidence to determine its cogency not just take it at face value: Ratten v The Queen (1974) 131 CLR 510, 518, 528.
There is authority for the proposition that if the appeal court itself believes the additional evidence (whether it be new or fresh) and that additional evidence together with the evidence at trial establishes innocence or the existence of a reasonable doubt as to guilt, a verdict of acquittal is the only option available to the court: Ratten 510, 518 ‑ 520 (Barwick CJ). This statement of the law was approved by Hayne J in Eastman v The Queen (2000) 203 CLR 1 [322]. It is not easy to reconcile this role of the appellate court as fact finder with the constitutional role of the jury as the judge of fact (Weiss v The Queen (2005) 224 CLR 300 [38]). On my reading of the decisions in Button v The Queen (2002) 25 WAR 382 and Beamish v The Queen [2005] WASCA 62, the appeal courts did not act on their own belief or acceptance of the additional evidence. Further, the acquittals in those cases are explicable on conventional grounds (see Dyers v The Queen (2002) 210 CLR 285) unrelated to the additional evidence which enlivened the obligation to set aside the convictions.
However, what is important for present purposes is that where additional evidence is relied on as establishing a miscarriage of justice, that evidence is considered together with the evidence at trial to determine whether the verdict at trial should stand.
I turn now to the construction of s 30(5)(d) of the Criminal Appeals Act. There are a number of points to note. First, the statement of Barwick CJ in Ratten as to the appellate court's role as fact-finder and his statement that if the appellate court believes the additional evidence, a judgment of acquittal should be entered if that evidence raises a reasonable doubt as to the appellant's guilt, can have no application in this case. The latter proposition has no application because the appellant in this case would bear the onus of establishing insanity on the balance of probabilities. The additional evidence together with the evidence at trial must positively satisfy the trier of fact of the offender's insanity at the time of the commission of the offence.
Secondly, s 30(5)(d) does not make this court the fact-finder on insanity. This is to be contrasted with s 7(4) of the Criminal Appeal Act 1912 (NSW) which was considered in R v Jenkins (1963) 64 SR NSW 20, 28 ‑ 29 and R v Fleeton (1964) 64 SR NSW 72, 75, 87. Under s 30(5)(d) this court must (not may) enter a judgment of acquittal on account of unsoundness of mind if it is satisfied that the offender should have been found not guilty of the relevant offence on account of unsoundness of mind. The expression 'should have been found not guilty' is a reference back to the trial at which the verdict of guilty was entered. The court does not have to be satisfied that the appellant was insane. Rather, it has to be satisfied as to what the verdict should have been at trial.
Thirdly, the statutory directive to determine what should have been the verdict at trial is consistent with the approach taken when considering whether additional evidence enlivens the court's obligation to set aside the guilty verdict. It follows that s 30(5)(d) should be construed to mean 'if the court is satisfied having regard to the evidence at trial and any additional evidence (fresh or new) which undermined the guilty verdict that the offender should have been found not guilty on account of unsoundness of mind'.
In this case the additional expert evidence on insanity is, in my assessment, cogent. Moreover, it would not have been challenged by the State, either in cross‑examination or by adducing evidence. That being the case, the only reasonable verdict open on the evidence adduced at the appellant's trial together with the additional evidence is a verdict of not guilty on account of unsoundness of mind. This approach to the court's task in s 30(5)(d) is consistent with that undertaken when considering the proviso and when determining whether a verdict of guilty is, having regard to the evidence, unreasonable or cannot be supported. As to which see Weiss [41].
My preliminary view is that this court could not make an order under s 30(5)(d) if it was unable to conclude that a verdict of not guilty on account of unsoundness of mind was the only reasonable verdict open on the evidence. If that is correct, the court could not make an order under

s 30(5)(d) if the additional evidence was cogent but it remained open to the jury as a matter of law or fact to reject (or refuse to accept) the insanity defence. However, it is unnecessary to determine that matter in these proceedings.

OWEN JA: In June 2006 the appellant was convicted of wilful murder. This is an appeal against the conviction on the ground (primarily) that the appellant should have been acquitted because he was of unsound mind at the time of the killing. The notice of appeal was lodged on 27 February 2009, approximately 29 months out of time.
The parties were granted leave to adduce new evidence for the purpose of the appeal. The new evidence is in the form of an affidavit and reports from a psychiatrist engaged by the appellant, a report from a psychiatrist engaged by the State and an affidavit and a letter provided by counsel who appeared for the appellant at trial.
The application for an extension of time and the application for leave to appeal were adjourned for hearing along with the substantive appeal.

Background

Early on the morning of 5 November 2004 the appellant killed his brother by hitting him on the head a number of times with a brick doorstop. At the time the appellant was aged 43 years and had previously been hospitalised and treated for psychotic disorders. On the afternoon of 5 November 2004 the appellant was arrested and taken to the police station. He participated in a video record of interview and was later charged with offences arising from his brother's death.
On 6 November 2004 the appellant was referred to the Frankland Centre at Graylands Hospital on a hospital order pursuant to s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). He was seen and treated by (among others) Dr Bryan Tanney, a Consultant Forensic Psychiatrist. On 9 November 2004 Dr Tanney recorded this observation in the hospital's integrated progress notes: '[the appellant] is psychotic, unfit to plead or stand trial and seemingly can constitute a s 27 defense [sic]'. He remained in hospital until November 2005. The reference to a s 27 defence is, of course, to the principle that a person is not criminally responsible for an act on account of unsoundness of mind if the mental impairment is such as to deprive him of the capacity (among others) to understand what he is doing or to control his actions.

By 2006 the psychiatric reports indicated that the appellant was fit to stand trial. He was charged on indictment with one count of wilful murder, alternatively murder. He stood trial commencing on 13 June 2006. At the outset of the trial defence counsel told the jury that the appellant admitted that he caused the death of his brother. The defence was conducted on the basis that the State had not established the requisite intent and had not negatived self defence or provocation. The question of unsoundness of mind was not raised at trial. On 16 June 2006 the jury returned a verdict of guilty of wilful murder. On 31 August 2006 the appellant was sentenced to life imprisonment with a minimum non‑parole period of 17 years.

The grounds of appeal

The principal ground of appeal is that there was a miscarriage of justice due to the absence of evidence at trial relating to the appellant's mental incapacity at the time of the offence. There were three other grounds of appeal, namely:
(a)a miscarriage of justice brought about by the admission into evidence of the video record of interview;
(b)a miscarriage of justice due to a failure to adduce evidence from the prosecution brief of a report from PathWest; and
(c)an error of law arising from a misdirection in relation to alleged lies told by the appellant.
Prior to the hearing of the appeal the State conceded that the principal ground had merit and that the appeal ought to be allowed. The only question then remaining was whether there should be a retrial or whether this Court should enter a verdict of acquittal on the ground of unsoundness of mind. At the hearing counsel for the appellant abandoned the ground relating to the PathWest report. It is not necessary to deal with the ground concerning the admission of the video record of interview or direction on lies unless there is to be a retrial.
I propose to deal first with the psychiatric evidence on which the State's concession is based. I will then turn to the question whether it is necessary for there to be a retrial.

The new evidence

Notwithstanding the State's concession, it is still incumbent on this Court to satisfy itself that the appeal has merit. However, the concession means that I can deal with the new evidence from the psychiatrists and defence counsel in less detail than would otherwise be the case.
In a report dated 22 March 2009 Dr Tanney opines that the appellant suffers from paranoid schizophrenia with comorbid polysubstance abuse. The appellant had been treated as early as 1993 for these conditions and had suffered bouts of incapacity in 2003 and in October 2004. On 2 November 2004 (three days before the killing) the appellant had received injectable antipsychotic medication and was given an appointment to see a psychiatrist. The psychosis was evidenced by (among other things) inability to sleep, auditory hallucinations (hearing voices) and delusional beliefs about spirits (religious and extra‑terrestrial aliens) inside him. The condition (or at least the psychotic symptoms) was or were amenable to control by medication and he had periods of remission. The appellant had a history of substance abuse, particularly alcohol and marijuana but also hallucinogens and amphetamines. With respect to a causal nexus between the schizophrenia and the substance abuse, Dr Tanney acknowledged that it is well known that marijuana can induce psychotic symptoms independent of simple intoxication. However, his conclusion was that the appellant's mental illness preceded the substance abuse, although the latter may have exacerbated the symptoms. Dr Tanney then said:
It is my opinion that [the appellant] has a major mental disorder, namely paranoid schizophrenia. Further, I am convinced by the clinical observations of persons who knew [the appellant], by the video record of interview, by his presentation at multiple interviews by mental health professionals at Frankland Center and by the course of treatment with illness response that this mental disorder was florid at the time of the offending, notwithstanding that it may have been exacerbated in intensity by the marijuana - and alcohol-abuse.
I am also of the opinion that the paranoid delusions respecting religious and alien themes and the experiences of passivity and of command hallucinations that are a significant part of this mental disorder were sufficient to explain his offending behaviour.
OPINION RE INSANITY (S.27)
1) His mental illness did not deprive him of the capacity to understand what he was doing when he killed his brother in November, 2004.
3) [sic] His mental illness did deprive him of the capacity to control his action at the time of the offending. He was experiencing being controlled in his thoughts and actions by Satan and had command hallucinations directing his actions. His thoughts were being interfered with by external forces. He related previous experience of such lack of will and a belief that earlier harmful actions on his part had been influenced by Satan. …
4) [sic] His mental illness did deprive him of the capacity to know that he ought not to do the act of offending. He believed that his brother was a threat to him personally, and to the world. He believed his brother was an alien linked to spiders, Satan and aliens planning to blow up the planet. He said the actions of aliens had previously threatened his safety and health. He said that his action had 'won the war' and 'saved a lot of people from Satan' by destroying the spider. He said 'it had to be done' and that his 'brother was better off', 'he had saved him from Satan'. [emphasis in original]
Dr Mark Hall is a Consultant Psychiatrist who, at the request of the State, provided a report dated 26 August 2009. Dr Hall also concluded that the appellant suffers from chronic paranoid schizophrenia and that the illness resulted in a mental impairment at the time of the offending. His conclusion is expressed as follows:
Examining all of the available information, I believe that [the appellant] suffers from a severe mental illness which at the time of the offending was florid. In addition, his mental impairment was exacerbated, but not caused by, substance abuse which had actually been intended by [the appellant] to induce sleep and provide a degree of respite from his symptoms. It is my opinion, based on the information available, that at the time of the offending [the appellant's] mental illness produced a state of mental impairment that did deprive him of the capacity to control his actions or to know that he ought not to do the act of offending. [emphasis in original]
The evidence of Dr Tanney and Dr Hall is consistent and it is unchallenged: at the time of the commission of the act constituting the offence the appellant was suffering from a mental impairment (chronic paranoid schizophrenia) that was such as to deprive him of the capacity to control his actions and the capacity to know that he ought not to do the act.
In a letter dated 5 October 2009 (the contents of which were verified on affidavit) counsel who appeared for the appellant at trial said:
Your question is whether I discussed the possibility of a Code section 27 defence with [the appellant] at any stage.
The answer is that without using the word insanity I made an oblique reference to it. There was no discussion about it and the trial proceeded in the way that it did based on a decision made by me.
The forensic decision whether or not to raise insanity as a defence will sometimes be made with an eye to the possible or probable consequences. The evidence supporting the contention of unsoundness of mind may be equivocal or borderline. Those advising an accused may discern a legal or factual defence that, if not negatived by the prosecution, will result in an outright acquittal. That is not the case if the lack of criminal responsibility arises from unsoundness of mind. If that occurs the court may make a custody order, in which event the accused will be detained until released by an order of the Governor.

However, in this instance it cannot be said that the decision not to raise a question of lack of criminal responsibility due to unsoundness of mind was made after a proper (or possibly, any) assessment of the evidence concerning the appellant's mental condition. It certainly was not taken on informed instructions given by the appellant after appropriate discussion of the issue. It has to be borne in mind that by the time of trial the appellant had been assessed as fit to plead and, accordingly, he was in a position to give informed instructions.
The material adduced from Dr Tanney and Dr Hall is 'new', rather than 'fresh', because it was available at the trial or could, with reasonable diligence, then have been discovered. I will have more to say about the test for admission of new evidence later in these reasons. Here, it is sufficient to say that for an appeal to succeed on the basis of new evidence, the material must be strong enough to show that the appellant is innocent (or more accurately in the circumstances of this case, not criminally responsible) or raise such a doubt that the court concludes that the appellant should not have been convicted.
In my view the unchallenged evidence of Dr Tanney and Dr Hall is of such cogency that it satisfies the test for the admission of new evidence. Had this material been adduced at trial the jury, acting reasonably, should have acquitted the appellant on the ground that he was not criminally responsible due to unsoundness of mind. There would be a serious miscarriage of justice if the verdict were allowed to stand. The principal ground of appeal has been made out.

A retrial or a substituted verdict?

The only remaining question is whether this Court should enter a verdict of acquittal on account of unsoundness of mind or whether there should be a retrial. Counsel for the State described the State's position in these terms:
[The concession is] not merely that the psychiatric evidence, the additional evidence is cogent but that the state doesn't contest that [and] the state accepts that had such evidence been adduced, it would have led to an acquittal on the basis of unsoundness of mind. … [If there were to be a retrial] the state would simply not, having made that concession, turn around and contest the psychiatric evidence.
In the face of the unchallenged psychiatric evidence and the indication that the State would not contest the evidence at a retrial it seems to me that, if the Court has power to do so, the logical and appropriate disposition is a substituted verdict. The question is whether the Court has the power to do so.

The statutory framework

Section 30 of the Criminal Appeals Act 2004 (WA) applies to appeals against conviction and provides, relevantly:
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence … and must —
(a)order a trial or a new trial; [or]
(b)enter a judgment of acquittal of [the offence]; [or]
…
(d)if the court is satisfied that the offender should have been found not guilty of [the offence] on account of unsoundness of mind — enter a judgment of acquittal of [the offence] on account of unsoundness of mind and deal with the offender under the Criminal Law (Mentally Impaired Accused) Act 1996;
It is not entirely clear how s 30(5)(d) is intended to operate in the circumstances with which the Court is confronted in this appeal. The problem arises because no evidence was led at trial as to the appellant's mental condition. Concentrating solely on the question of unsoundness of mind (and leaving to one side the issues raised by the other grounds of appeal) the verdict would have been unimpeachable had it not been for the new evidence. The appeal succeeds on the principal ground only because of the new evidence. What did Parliament intend when it said in s 30(5)(d) that a judgment of acquittal must be entered 'if the court is satisfied that the offender should have been found not guilty of [the offence] on account of unsoundness of mind'? On one view of it, the subsection applies if the court is satisfied that the offender should have been found not guilty at trial having regard only to the evidence adduced at trial. An alternative view is that if, on all the material properly before the appellate tribunal (which could include material not adduced at trial but admitted under the new or fresh evidence principles), the court is satisfied that the verdict cannot stand, it should substitute a judgment of acquittal on account of unsoundness of mind.
At the hearing of the appeal counsel were invited to provide written submissions relating to the construction of s 30(5)(d). Counsel were unable to find any cases dealing with the section or its predecessor (Criminal Code s 693(4)). Nor was assistance to be gained from anything written in The Murray Report: The Review of the Criminal Code, MJ Murray QC (1983), in which recommendations were made for amendments to s 693(4), or in the Parliamentary materials relating to the Criminal Appeals Bill 2004.
Under s 39(1) of the Criminal Appeals Act an appeal court must decide an appeal on the evidence and material that were before the lower court. However, this does not affect the power of an appeal court in s 40 to admit evidence (s 39(3)), nor does it prevent an appeal court from considering any evidence that the lower court refused to admit: s 39(4). Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may 'admit any other evidence'.
The effect of a number of decisions of this court is that, at least in relation to appeals against conviction, s 40(1)(e) was not intended to override the common law principles relating to the admission of additional evidence. The Court has proceeded on the basis that the common law distinction between new and fresh evidence continues to apply, as do the common law tests for the admission of the respective categories of additional evidence: see, for example, de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [149] ‑ [152], 330 - 331; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [221] - [224].

Retrial or acquittal? General principles

Section 30(5)(d) of the Criminal Appeals Act deals with a specific situation; namely a lack of criminal responsibility due to unsoundness of mind. The question is whether that situation is to be dealt with differently from the broader appellate jurisdiction relating to express errors of law, findings that verdicts are unsafe or unsatisfactory, or that a miscarriage of justice has occurred on matters for which the offender would otherwise be criminally responsible. In those circumstances, where a conviction is set aside the usual order is that there be a retrial. But the court has always had power (now recognised in s 30(5)(b) of the Criminal Appeals Act) to enter a judgment of acquittal without a retrial. However, this is regarded as an exceptional course and one that is to be used sparingly: Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [43], [91].
Given the wide range of circumstances that can arise it is undesirable, and probably impossible, to lay down fixed rules governing the exercise of the power to order, or refrain from ordering, a new trial: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [91] (and see also [23]). The power to enter a judgment of acquittal can be exercised for a number of reasons. They include:
(a)where it is apparent (as a matter of law) that the prosecution must inevitably fail and it would therefore be futile to order a new trial: Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 188; and
(b)where the prosecution indicates that it does not seek an order for a retrial: Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77, 82.
In deciding to enter a judgment of acquittal rather than to order a retrial the appellate court always has an eye to fundamental principles of the criminal justice system. Foremost among those principles is the proposition that, save for statutory exceptions, a person accused of crimes on indictment has a right to be judged by his or her peers in a jury trial. Generally speaking, it is for the jury (not the appellate court) to assess evidence going to the issue of guilt. Trial judges are required to direct a jury that they must make a judgment upon the evidence that has been adduced before them in the trial, and not otherwise. Further, the law has always regarded it as desirable to treat jury verdicts as final: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 ‑ 518 (Barwick CJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301 ‑ 302, 314 (Toohey and Gaudron JJ). There is a tension between these fundamental principles and the prospect of a final resolution of the indictment occurring by order of an appellate court on the basis of evidence that was not adduced at trial and which, therefore, has not been considered by the tribunal of fact.
This tension was acknowledged by Barwick CJ in Ratten, 517. His Honour noted that a criminal trial is not an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence and that it was for the jury, on the evidence and under the judge's directions, to decide whether the accused was guilty. The fundamental question is whether there has been a fair trial. Barwick CJ went on to say that a trial will not be classified as unfair simply because the accused, of his or her own volition, has not called evidence which was available at the time of trial. The appellate court must assess, for itself, the relevance of the additional material, its cogency and whether it is 'capable of belief and likely to be believed by reasonable men'. However, having done so, the court was confronted with the need to make a further decision, which his Honour described at 518:
It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.
In other words, under the common law principles there can be situations where the additional material may persuade the court that the proper disposition is an outright acquittal rather than a retrial: see also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [321] - [322] (Hayne J).
There have been instances in this State where this has occurred. In Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 fresh evidence was admitted, the appeal was allowed, the conviction was quashed and no retrial was ordered. This was an extraordinary case because the incident from which the charge arose had taken place in 1963 and the appeal was heard in 2001 by way of referral by the Attorney General under s 140 of the Sentencing Act 1995 (WA). The section provides that the case is 'to be heard and determined as if it were an appeal'. While this case pre-dates the enactment of the Criminal Appeals Act I do not think there is any relevant distinction between the court's powers then and now. Nor do I think there is any material distinction because the additional material in Button was characterised as 'fresh' rather than 'new'. The members of the court did not comment specifically on the question whether there should be a retrial. The fact was that, almost 40 years after the event, the successful appellant could not have been retried. In any event, he had served the entirety of the custodial sentence initially imposed on him. Similar circumstances arose, and the same result was arrived at, in Beamish v The Queen [2005] WASCA 62.

Retrial or acquittal? Unsoundness of mind

I turn now to the circumstances with which the Court is confronted in this appeal; namely, whether the situation is different where the issue is a lack of criminal responsibility due to unsoundness of mind. Section 30(5)(d) empowers the court to intervene where 'the court is satisfied that the offender should have been found not guilty of [the offence] on account of unsoundness of mind'. The test for the reception of new evidence is best described in the language used in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J):
[There is no reason to disturb] a conviction … if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand. [emphasis added]
The cases make it clear that the fact the appellate court concludes that the offender 'should not have been convicted' does not entitle her or him to an outright acquittal. The general appellate principles apply and the usual disposition will be a retrial. This is what happened, for example, in Dyers.
In my view, there is no reason to think that the power in s 30(5)(a) of the Criminal Appeals Act to order a retrial does not apply to a situation where the conviction is set aside because of a problem relating to the appellant's unsoundness of mind. The alternative course of an outright acquittal (recognised in s 30(5)(b)) gives way to the specific power conferred by s 30(5)(d). However, in my view there is no reason to think that Parliament intended that there should be a limitation on s 30(5)(d); namely, that the court is restricted to a consideration of the evidence that was adduced at trial such that, on that evidence (and that evidence alone), the offender should have been found not guilty. The statutory language and the terminology used in the authorities for the new evidence test are in sympathy. There is nothing in the statutory language to indicate that in enacting s 30(5)(d) Parliament intended to exclude the common law principles relating to appeals based on new or fresh evidence in a situation governed by the section.
There is, of course, a difference between an acquittal entered under s 30(5)(b) because of a miscarriage of justice arising from what I have earlier described as the broad appellate jurisdiction and a miscarriage that relates to a question of unsoundness of mind and which brings into play s 30(5)(d). The essential difference between the two lies in the consequences that follow the acquittal. In the former instance the successful appellant is entitled to be released from custody (if applicable) and to have the conviction expunged from her or his record. Where s 30(5)(d) applies, the successful appellant falls to have his or her future determined under the Criminal Law (Mentally Impaired Accused) Act. That issue apart, I do not believe that as a matter of statutory language or as a matter of principle any further restrictions or limitations need to be read into s 30(5)(d).
In my view it follows that where a court is satisfied that the new evidence is of such cogency that, had it been called at trial, the jury should have found that the offender was not criminally responsible due to unsoundness of mind, then the statutory condition (namely, that the offender should not have been convicted) has been satisfied. It would then be open to the court to apply s 30(5)(d) and to acquit the offender and order that she or he be dealt with under the legislation.
The final question is whether, the statutory condition having been satisfied, the court must apply s 30(5)(d) or whether it can order a retrial. It is clear that if the statutory condition in s 30(5)(d) has been satisfied the alternative in s 30(5)(b) (an outright acquittal) cannot apply. This must follow as a matter of logic because of the different consequences following an acquittal. However, it cannot have been the intention of Parliament that where the statutory condition is met, the option in s 30(5)(a) is foreclosed. That would be a fundamental change to the common law and to appellate jurisprudence. It is a change that could only be brought about by clear and unambiguous language. In my view the language does not lead to that conclusion.
There will be many instances in which a miscarriage of justice relating to unsoundness of mind arises not from new or fresh evidence but from something that occurred at trial. An example is a misdirection by the trial judge on the elements of the unsoundness of mind 'defence': see, for example, Evans v The State of Western Australia [2010] WASCA 34. Ultimately, the test in such instances is not whether the offender should have been acquitted but whether he or she has lost a reasonable opportunity of an acquittal. It is difficult to imagine circumstances in which a court, having reached that conclusion in an unsoundness of mind case, would do other than order a retrial.
If the appellate court reaches a conclusion that the verdict cannot stand based on fresh (rather than new) evidence s 30(5)(d) might not apply because the level of persuasion in fresh evidence cases is a 'significant possibility' that the jury might not have convicted (rather than that the jury 'should have' acquitted). In such a case s 30(5)(a) would apply. If it be the case (as I think it is) that Parliament did not intend to abrogate the common law principles relating to the reception of additional evidence on appeal, there is no warrant to read the section as meaning that if a conviction is overturned on fresh evidence the result must inevitably be different from the disposition that eventuates where the conviction is set aside because of new evidence.
In my view, the general appellate principles apply throughout s 30(5). If a conviction is set aside the usual disposition will be a retrial. There will, however, be unusual cases in which a judgment of acquittal will be entered. Looked at in this way, s 30(5) is a neat and cohesive code. In summary, and relevantly for the issues raised in this appeal, s 30(5) operates in this way:
(a)if the court allows an appeal it must set aside the conviction;
(b)it must then make one of the orders set out in the five subsections of s 30(5);
(c)generally speaking, the court will order a retrial (under s 30(5)(a)) but it may, in unusual cases, enter a judgment of acquittal (under s 30(5)(b));
(d)if the statutory condition in s 30(5)(d) is satisfied it must do one of two things: either order a retrial under s 30(5)(a) (which again will be the usual disposition) or enter a judgment of acquittal and deal with the offender under the Criminal Law (Mentally Impaired Accused) Act (a power that it will exercise sparingly and only in unusual circumstances); and
(e)in deciding whether the statutory condition in s 30(5)(d) has been satisfied it may have regard to new or fresh evidence.
In my research I was only able to find two cases touching on the question agitated in this appeal. Although neither of them are of any real assistance, I should mention them for the sake of completeness. In R v Tucker (1915) 15 SR (NSW) 504 the offender pleaded insanity at trial but was convicted. The appeal was successful and a retrial ordered on the basis of additional evidence relating to the offender's sanity. However, it is not clear from the report whether the additional material would be regarded as 'new' or 'fresh' in modern jurisprudence. Nor is it clear whether there was a statutory equivalent to s 30(5)(d). Nor is it apparent whether the choice between a retrial and a substituted verdict was agitated. In R v Dashwood [1943] KB 1, the offender had deliberately refrained from putting before the jury evidence (which was then in existence) bearing on his sanity. The court refused his application to raise the issue on appeal as he was bound by the deliberate course he had adopted at trial. That is quite different from this case where the appellant was not involved in any deliberate decision whether to invoke s 27 of the Criminal Code at trial.

Conclusion

It is not necessary to deal with grounds concerning the PathWest report and the alleged lies. The appeal succeeds on the ground relating to the appellant's mental incapacity and the conviction must be set aside.
In this case, the psychiatric evidence adduced by or on behalf of the defence and the prosecution is clear and unchallenged: at the time of the killing the appellant was suffering from a mental impairment that deprived him of the capacity to control his actions and the capacity to know that he ought not to do the act. If that were the state of the evidence on a retrial there would be no evidence bearing on appellant's mental capacity other than that he was, relevantly, of unsound mind. As a matter of law, therefore, he could not be held criminally responsible and it would be futile to order a retrial in those circumstances.
In addition, the State has indicated that it would not challenge the evidence on a retrial and (although submitting that 'it is a matter for the court as to whether an acquittal can now be entered without more on that basis') it has not requested a retrial.
For those reasons this case falls into the exceptional category where a final disposition of the indictment should be ordered by the court without the evidence ever having been the subject of assessment by a jury. It is therefore unnecessary to deal with grounds of appeal concerning the admission into evidence of the video record of interview and the alleged misdirection about lies.

So far as concerns the application for an extension of time, there would be a serious miscarriage of justice if the convictions were allowed to stand. Accordingly, an extension should be granted.
The orders should be:
1.An extension of time within which to appeal is granted.
2.Leave to appeal is granted on ground 1(1) and refused on grounds 1(2) and 1(3) and 2.
3.The appeal is allowed.
4.The conviction for wilful murder is set aside.
5.A judgment of acquittal of the offence of wilful murder (alternatively, murder) on account of unsoundness of mind is entered.
6.There be a custody order pursuant to s 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
JENKINS J: I agree with Owen JA.