Nielsen v The Queen

[1992] HCATrans 107

..

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• -~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B38 of 1991

B e t w e e n -

GRAHAME SIMON NIELSEN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

DEANE J
DAWSON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

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FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 APRIL 1992, AT 10.13 AM

Copyright in the High Court of Australia

MR W.T. McMILLAN:  May it please the Court, I appear with my

learned friend, MR S.J. HAMLYN-HARRIS, for the

applicant. (instructed by J. Hodgins, Director,

Legal Aid Office (Queensland))

MR M.J. BYRNE:  May it please the Court I appear for the

respondent. (instructed by D. Field, Solicitor to

the Director of Public Prosecutions (Queensland))

MR McMILLAN:  The special leave point in this application is

whether a jury, in determining the issue of

diminished responsibility in relation to an accused

suffering a pre-existing mental disorder, may take into account the transient effects of alcohol upon

that mind, and the matter of public important for

the consideration of the Court i that the question

of diminished responsibility is an issue which

often arises in murder trials. There are only two

States at the moment which allow the defence, that

is Queensland, of course, and New South Wales, in

section 23A of their Crimes Act. The section, of
course, follows the English provision in the

Homicide Act of 1957 and the wording, with some

variations, is similar to that provision.

Now, it is our submission that the issue which

we are putting before the Court is squarely raised

at the trial by the applicant.	The factual base is
not complicated.	The evidence of Dr O'Brien, on

the point, is set out succinctly at page 7 and 8,

of the record. This is in the outline of argument

which was presented to the Court. Dr O'Brien

categorized the disease which the applicant was

suffering from at the material time as being

initially post traumatic stress disorder,

complicated by depression and alcoholism. The

doctor, under cross-examination, and this appears

at the top of page 8 of the record:

described the abnormality of mind as being a

composite of the effects of alcohol intake

plus the depressive illness which the

applicant suffered plus the chronic symptoms

of the post traumatic stress disorder.

Now, the learned trial judge directed the jury

and, it is conceded, directed the jury consistent

with authority, both in England and, as it now

applies, in Queensland. He said, at page 167 of

the trial record, and this appears in paragraph 6

on page 8 of the outline, that:

When one comes to the question of diminished

responsibility -

he is saying to the jury -

Nielsen 2 10/4/92

you should disregard entirely from your

consideration the question of alcohol -

Now, that direction was approved of by the two

members of the Court of Criminal Appeal,

MacCrossan J and de Jersey J, who delivered

reasons.	McPherson J agreed with their reasons and
their ultimate decision.	I will not take the Court

to the decisions of the members of the Court of

Criminal Appeal in detail, but suffice it is to say

that they referred to a Queensland authority of

Miers, which followed the England provisions.

DEANE J:  Mr McMillan, is your argument founded on any

suggestion that alcoholism of its own can give rise

to a defence under 304A?

MR McMILLAN:  Your Honour, alcoholism of its own can give

rise if it is in fact a disease. That is, if

chronic intake of alcohol has so affected the mind

that it produces its own disorder. But having said
that, the transient effects of alcohol is certainly

not being proposed by the applicant as being

sufficient to come within the definition of

diminished responsibility.

DEANE J:  Now, here it was conceded that the alcoholism was

not part of the abnormality of mind or a cause of

it. I am looking at page 42 of the book.

MR McMILLAN:  Yes, Your Honour. That concession, which I

gave to the court, was in response to a question

from the court as to whether I was saying in my

submissions that because alcohol was involved,

whether alcohol of itself was sufficient in this

case to justify a finding of diminished

responsibility. I eschewed that proposition

because it was in the context of it being

alcoholism of a sufficient degree that it was of

itself an abnormality of mind. That was the basis

of that concession.

DEANE J: But does not that concession isolate this case

into the category where the results of the

abnormality of mind can, as it were, be isolated

from the results of alcoholism?

MR McMILLAN:  No, Your Honour, with respect, what this case

is about is that there can be a combination of

causes of which alcoholism is one, albeit a

transient one, and that, as it was in this case,
the three causes should be determined together by
the jury in their consideration. It cannot be

isolated. That is really the essential nub of the

applicant's case.

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DEANE J: In other words, if you have a minor abnormality of

mind combined with alcoholism, that can give rise

to a defence under 304A because of the minor

abnormality of mind.

MR McMILLAN: That was raised squarely in Jones' case, a

decision of the Court of Appeal in New South Wales,

Your Honour.	However, it is really a matter of
degree then.	Once that evidence is introduced,

that an accused has one, two, being elements which

could constitute abnormality of mind, and three,
alcoholism, the matter should go the jury. It is

for the jury to determine whether the mix is

sufficient to enliven the section.

DAWSON J: Is that what Jones' case decided?

MR McMILLAN:  No, Jones' case appears to ~~ve gone off,

Your Honour, on the fact that there was a slight

degree of brain damage. I am referring to the

decision reported in 22 A Crim R 42. At the foot

of 43, Chief Justice Street, in the paragraph

starting with:

The medical evidence was to the effect

that an individual with the degree of brain

damage - and I note in passing that it was but

a slight degree - such as that from which the

appellant suffered coupled with the

hypoglycaemia or the hypoglycaemic disease

condition of the appellant, could become

irresponsible in consequence of a consumption

of a substantial quantity of alcohol.

This is material to that decision, with respect:

The evidence was, also, to the effect that

without the consumption of alcohol, neither
the brain damage nor the hypoglycaemic

condition, nor the liver condition, either

alone or conjointly, would have led to any

irresponsibility such as could fall within the

scope of s 23A(l) of the Crimes Act.

That is not present here because the doctor is able to say that the abnormality of mind is induced by

three causes; it is a composite situation, whereas

Jones, that either alone or conjointly would have led to

in New South Wales, in there was an

isolation of the individual indicia. Particularly

any irresponsibility". So that distinguishes, with

respect, Jones from the proposition which we seek

to put before you.

The rationale for the exclusion of alcohol

appears to be based on public policy

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considerations, and public policy of course has
always been at the centre of dealing with matters

of intoxication in respect to criminal liability.

This Court, in O'Connor, was able to look at the

history and dealt with the matter in that it did

not approve of Majewski for Australia, particularly those non-Code States of course. Mr Justice Aickin

referred to the fact that public policy in fact is

often at the centre of these considerations.

The English courts, in Di Duca, which is the

first case, grappled with this question. Di Duca,

(1959) 43 Cr App R 167, at 172 of that report,

towards the bottom of the page, the court, as it

were, posed this consideration:

Whether the transient effect of drink, even if

it does produce such a toxic effect on the

brain, can amount to an injury -

that is as distinct from a disease -

within the section is, we think, very

doubtful, but it is unnecessary to come to a

final conclusion on the matter in the present

case -

because of lack of evidence. That was followed in

Fenton - followed in time, that is, because Di Duca

does not appear to be cited. Fenton appears in

(1976) 61 Cr App R 261. At 263 the Chief Justice

for the court said at the foot of the page:

On this (the first point taken in the appeal),

we are in favour of the Crown. We recognise

that cases may be arise hereafter where the

accused proves such a craving for drink or

drugs as to produce in itself an abnormality

of mind; but that is not proved in this case.

So the court was leaving it open to question for further consideration. And that came up again

in the often quoted case of Gittens, (1984) lQB 698

where, at page 703 the court said, at just above

item G:

Where alcohol or drugs are factors to be

considered by the jury, the best approach is

that adopted by the judge and approved by this

court in Fenton ..... The jury should be
directed to disregard what, in their view, the

effect of the alcohol or drugs upon the

defendant was, since abnormality of mind

induced by alcohol or drugs is not (generally

speaking) due to inherent causes and is not

therefore within the section.

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No doubt the court was considering the sustained alcoholic attack on the mind, but it was leaving -

DEANE J: But the type of situation which they are excluding

would prima facie seem to be the situation where

the alcoholism was part of the abnormality or a
result of the abnormality or was a cause of

abnormality. Well now, they are the very

situations which are not in the present case.

MR McMILLAN: Well, what Dr O'Brien says though,

Your Honour, is that the applicant - this is at the

foot of page 7 of the outline, paragraph 4:

Dr O'Brien had said that he took alcohol to

relieve himself of the effects of the post

traumatic stress disorder. Furthermore, she

said, the alcohol usually allowed him to

remember more vividly the events he was trying

to put out of his mind.	The alcohol worsened
his depression.

So, you really cannot isolate it and one could

perhaps grasp upon one of Your Honour's

expressions, the "cause of"; that is the alcohol

was taken because of other situations.	And that is
what happens in this case.

DEANE J: Well, it was not my expression; I was reading from

the concession made in the Court of Criminal

Appeal.

MR McMILLAN: Well, that is a paraphrase, with respect,

Your Honour, that concession - no doubt every counsel wishes to be able to say that - but it was a concession particularly related to, not this case, but in general, that could alcohol ever, in

itself, produce an abnormality of mind to which I

responded affirmatively, and then it went on "Is

that so in this case?", to which I conceded it did

not. So, that is a separate issue, with respect,

that is not present in this case.

Now, following on that line of English

authority, the Court of Criminal Appeal in

Queensland dealt with the matter squarely in so far

as alcohol itself, in Miers, (1985) 2 QdR 138.

That was a case where there was some drug

intoxication, but mainly transient alcohol

intoxication, and Campbell, Chief Justice, at

page 142, looked at the peculiar provisions of our

Criminal Code, particularly sections 27 and 28.

Section 27, Your Honours, deals with insanity and

section 28 deals with intoxication, and His Honour

said, at line 14:

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Section 28 of the Code is intended to

cover the whole field of liability for
criminal acts committed by a person whose mind

is disordered by intoxicating liquor or drugs,

and section 304A has no application to a

defence based on intoxication, whether

intentional or unintentional.

We would say, with respect, that that decision

is wrong when it seeks to cover the whole field of

intoxication, that section 304A does not exclude

the consideration of alcohol taken in a composite

effect with other mental disabilities. 304A is

quite wide and quite open on that point and Miers

is in error if it seeks to exclude 304A in

consideration of alcohol in the present setting.

The Court of Criminal Appeal further dealt

with the matter in Whitworth, (1989) 1 Qd R 437.

In the judgment of Mr Justice Thomas there is, with

respect, a very wide-ranging historical account of

the provisions and, at page 445, His Honour

extracts out of the authorities certain

propositions. I particularly take the Court to

line 46 where it is said:

There are certain mental qualities and

states of mind that for reasons of policy

(mainly law and order) as much as of logic the

law will not allow to be put into the balance

for the purpose of this exercise in legal

accountability. It now seems reasonably well

established that the law will not recognise

the following qualities or state of mind as

valid contributing causes to an abnormal state

of mind relied on by an accused -

and then the first one in the queue is

Intoxication (temporary effects thereof as

distinct from enduring damage occasioned

thereby) -

and he refers to Gittens and Fenton.

That is, with respect, a correct account of

the history of the authorities and shows that
considerations of law and order and certainly, in
some cases, not logic have been the base of some of
the authorities.

The last decision I want to take the Court to

is another decision of the Court of Criminal Appeal

as recent as 1991 and that is found in

(1991) 1 Qd R 1, in the matter of Bromage.	Bromage
dealt with a situation which arose before the

Mental Health Tribunal, a body which is individual

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to this State. The Mental Health Tribunal can be

called upon to consider and determine whether a

person was, at the time of the commission of an

offence, suffering from unsoundness of mind.

That was a case where the accused was

suffering from certain inhalation problems of

chemicals but also was severely intoxicated at the

material time. At page 11, Mr Justice McPherson

deals with whether the effects of that alcoholic

intake can be taken into account. And at line 29,

onwards, he discusses that point, particularly at

line 32:

In approaching that task it is to be borne in

mind that the Code differentiates bet~~en such

a state or condition and one that is nothing

more than a mind disordered by intoxication or

stupefaction by drugs or intoxicating liquor

or by any other means. Such a disorder is

outside the conception of mental disease

described ins 27. On the other hand, that

conception ins 27 does not affirmatively

exclude consideration of the impact on an

existing state of mental disease of

intoxication intentionally caused. Section 28

does so, but that is a matter relevant to
notions of criminal responsibility under Ch V,

with which the Tribunal is not concerned.

Now, we would say that, in an analogous sense,

when considering section 304A, the impact of

section 28 is not relevant. So that a court may

properly direct a jury, and it is a matter for the

jury as to whether the ingestion of alcohol by an

accused, suffering from an already abnormal mind,

may be taken into account. To exclude it can only

lead to confusion, as appeared in this case,

because the jury asked for a redirection on how

they were to approach the problem, and His Honour

the trial judge gave a redirection to the jury and

emphasized they must exclude it.

What this Court is being asked to do is

perhaps to exercise a degree of logic and not refer

back to the historical tramway which has brought

the decisions to the present state they are,

because, as said in O'Connor, juries are

particularly able to determine whether alcohol had
only a transient effect or a more serious effect,

and it was for that reason that the court, in my

respectful submission, proceeded to its ultimate

decision in O'Connor, the majority in any event.

So, it is a simple point, Your Honours, it is

a point that does often arise in these cases where

persons, with an already upset mind, take alcohol

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too much for the good of them, and it affects their

mental stability, and section 304A should not be

taken out of account when a jury comes to consider

that overall question.

There is also an application for special leave

to appeal out of time. That is dealt with at

page 2 through to page 4 of the record in the

affidavit of Mr Harland. It will be seen that

there has been delay in bringing the matter before

the Court - - -

DEANE J:  You need not trouble about the time aspect,

Mr McMillan.

MR McMILLAN:  Thank you. Your Honours, those are our

submissions, thank you.

DEANE J: Thank you, Mr McMillan. The Court need not

trouble you, Mr Byrne. The Court is of the view

that the present case is not a suitable vehicle to

consider the question of the effect of section 304
of the Queensland Criminal Code in a case involving
a combination of the effects of abnormality of mind

and alcoholism. Accordingly, special leave to

appeal will be refused.

MR McMILLAN:  As Your Honour pleases.

AT 10.39 AM THE MATTER WAS ADJOURNED SINE DIE

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