(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Auxiliary Justice Buss)
29 September 2023
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - EVIDENCE - MEDICAL AND PSYCHIATRIC EVIDENCE
The appellant is charged with various offences of sexual wrongdoing against under-age males. Relying on s 269C(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) the appellant put his mental competence into issue.
The trial of the issue of mental competence was heard by the judge alone. The prosecution tendered evidence including affidavits from the complainants. The appellant tendered expert reports from two psychologists, one of whom was appointed by the court.
Neither party objected to the evidence tendered by the other party, nor explained the basis on which it was received. Neither party required that the other party call its witnesses, apart from the two experts, who were cross-examined by the prosecution.
The experts had concluded that the appellant was mentally incompetent by reason of mental impairment, being Autism Spectrum Disorder, a mental illness recognised by DSM 5.
The cross-examinations of the experts challenged the assumptions they had made and the reasoning they had employed. No objection was made to the cross-examinations.
There were no oral final addresses. The trial judge reserved and received written final addresses.
The trial judge rejected the expert opinion evidence and found that the appellant had not established that he was mentally incompetent by reason of mental impairment.
The appellant appealed, seeking a finding from the Court of Appeal under s 269Y that he was not mentally competent within s 269C(1) of the CLCA.
At the hearing of the appeal, the Court granted permission to appeal, allowed the appeal and ordered a re-trial. These are the reasons for the making of those orders.
HELD (the Court):
1.Though not embraced within the grounds of appeal, the mental competence hearing miscarried because the wrong legal test was applied, the parties were in disagreement about the evidence that was properly before the trial judge and on which the experts were asked to express their opinions, and the precise basis on which the trial judge rejected the expert opinions remained unclear.
2.In circumstances where the wrong legal test was applied, and there remains a dispute about the evidence before the court, this is not a case where the Court of Appeal can review the record and form its own views.
3.Observations made about proper practice when leading expert opinion evidence, and proving the factual basis for expert opinion evidence, in an investigation into mental competence under Part 8A of the CLCA.
4.Aspects of the grounds of appeal addressed, including the concept of “wrongfulness”, procedural fairness and compliance by the parties and the court with the rule in Browne v Dunn in connection with an investigation into mental competence.
[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.
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AGLC
Murphy (a pseudonym) v The King [2023] SASCA 107
Case
[2023] SASCA 107
Decision Date
CaseChat Overview and Summary
The appeal concerned Murphy (a pseudonym) and The King. The dispute revolved around the evidentiary basis for a finding of mental incompetence at trial, specifically in relation to the appellant's diagnosis of Autism Spectrum Disorder (ASD). The matter was heard by Livesey P, Lovell J, and Buss AJ.
The central legal issue before the court was whether the trial had miscarried due to an irreconcilable dispute between the parties regarding the proof of the factual basis for expert opinions on the appellant's mental incompetence. This dispute concerned whether the prosecution had conceded that ASD constituted a "mental illness" and "mental impairment" for the purposes of the relevant legislation, and whether the appellant had adequately proven the facts underlying the expert diagnoses.
The Court found that the parties were not ad idem concerning their approach to the evidence at trial, a misunderstanding that only became apparent on appeal. The prosecution contended that the appellant failed to prove the facts underlying the expert opinions, while the appellant argued the prosecution had conceded the diagnostic aspects and only disputed the application of the legal test. The Court determined that this fundamental disagreement about the evidentiary material could not be resolved by reference to onus of proof or by reading the transcript and submissions. Consequently, the Court concluded that the hearing had miscarried because the disagreement could not be fairly resolved, and it was not open for the appellate court to form its own view of the evidence.
Given that the mental competence investigation had miscarried, the Court ordered a new trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
On this basis alone, and notwithstanding that this was the approach taken by the appellant at trial,[9] permission to appeal should be granted and the appeal allowed. The parties were in dispute about the evidence before the court[9] KBT v The Queen (1997) 191 CLR 417; Fingleton v The Queen (2005) 227 CLR 166, [83] (McHugh J) citing Pemble v The Queen (1971) 124 CLR 107; Perera-Cathcart v The Queen (2017) 260 CLR 595, [124] (Nettle J); Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J). As for the evidentiary basis on which the trial proceeded, the appellant pointed to pre-trial correspondence in which the prosecution conceded that there was no issue about the diagnosis of each expert, nor that the diagnosis of ASD constituted a “mental illness” and, thereby, a “mental impairment” for the purposes of ss 269A(1) and 269C(1) of the CLCA. The appellant contended that the prosecution only put into dispute the application of the relevant legal test by each expert. This was said to have been the basis upon which the appellant conducted the hearing. It followed, said the appellant, that the prosecution took no issue with the material on which the diagnosis was based, including the history provided by the appellant and his mother. By contrast, the respondent took issue with the failure by the appellant to prove the facts underlying the opinions of Professor Young and Ms Heinrich in circumstances where neither the appellant nor his parents gave evidence. The respondent maintained that the failure to prove the factual basis for the expert opinion evidence undermined its efficacy, quite apart from the flawed reasoning and failures by the experts to properly apply the statutory test concerning the question whether the appellant was mentally incompetent by reason of ASD. Whilst it will be necessary to return to the way in which the expert evidence was led in this case, it is sufficient to say at this point that at the hearing before the primary judge the parties were not ad idem regarding their approach to the evidence. The admission of the evidentiary material at the trial was marked by silence from each party, and their misunderstandings did not emerge until the hearing of this appeal. Had there been oral final addresses and had the disagreement concerning the evidence emerged during those addresses, it may have been possible to require that witnesses be called or recalled, as the case may be. In circumstances where the disagreement between the parties cannot fairly be resolved by resort to questions of onus, or by a reading of the transcript, the written submissions and the reasons taken as a whole, this Court cannot resolve that disagreement. Given the existence of an irreconcilable dispute about whether and to what extent the factual basis upon which the experts expressed their opinions concerning mental incompetence was proved, this is not a case where it is open to this Court to have regard to the whole of the record and then form its own views. The hearing miscarried. Regrettably, a re-trial is necessary.
Decision
Reasons for decision
To that extent at least, the reasons were inadequate.[100] [100] R v Keyte (2000) 78 SASR 68 (Doyle CJ); Douglass v The Queen (2012) 86 ALJR 1086.Conclusion For these reasons, the mental competence investigation miscarried. In consequence, there must be a new trial.