Perry v The Queen

[1991] HCATrans 195

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SlOO of 1990

B e t w e e n -

RODERICK HILTON PERRY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 10.51 AM

Copyright in the High Court of Australia

Perry 1 6/8/91

MR J. BASTEN:  I appear in this matter for the applicant, if

Your Honours please. (instructed by the Principal

Solicitor, Aboriginal Legal Services Ltd

MR R.N. HOWIE, QC:  I appear with my learned friend,

MR P.G.BERMAN, for the respondent Crown.

(instructed by the Solicitor for Public

Prosecutions)

MR BASTEN:	Your Honours, in this matter there are now two men who have died at the hands of the applicant.
First was Mr John Greentree, who died on 17 January
1986 and it is in relation to that death that the
present application is brought. There was a second death on 2 June 1987, when a man was killed in the
cell in prison with the applicant and it was in
relation to that matter that the applicant obtained
some psychiatric evidence on the basis of which it
appeared to him that a plea of manslaughter was
accepted in discharge of the indictment.

The applicant was seen by his own

psychiatrist, Doctor Jolly, prior to the first

trial, and Doctor Jolly formed what might be

described as a clinical intuition, that the
applicant suffered from a paranoid state involving

delusions. His evidence was not accepted by the

jury at that trial, but tragically it appears that

Doctor Jolly's evidence might well have been proved

correct in that Mr Bell seemed to have died in very

similar circumstances some eight months after the

first trial during his incarceration.

At the time of the second death the Crown

obtained a report from their own psychiatrist,

Doctor Arno Reid, and it was Dr Reid's view that on

the balance of probabilities a case of diminished responsibility might be established. There was a

plea accepted, as I indicated, and no trial was

heard on the second death. It was as a result of

that state of affairs that the applicant's lawyers

Doctor Reid as to his mental state at the time of	then sought further expert opinion, including from	the first death and it is perhaps appropriate,
Your Honours, if I could hand up copies of the
annexures to the affidavit, or rather the exhibits
to the affidavit, which were not included with the
papers in the book, and perhaps at the same time I
could hand up copies of section 23A of the
New South Wales Crimes Act in relation to
diminished responsibility.

I do not know that I need to take Your Honours

to the reports at this stage. It may be sufficient

if I take Your Honours to the summary which is

given by the Chief Justice in the course of his

judgment in the Court of Criminal Appeal, which

Perry 2 6/8/91

appears at page 24 point 5 of the application

papers. I think it would be common ground that the

substance - - -

DAWSON J: Perhaps before you do that you could identify

what is the special leave point that you say

arises.

MR BASTEN:  Your Honours, I am happy to do that. May I do

it in this way, Your Honours. The issue in

relation to the psychiatrist's reports, as set out at page 24, just after the reference to Ratten, is

that all four expressed or repeated the opinion
that the appellant, when he killed Greentree, the

first of the deceased, suffered from an abnormality
of mind and that he was the victim of paranoid

delusions, principally involving his belief that he

had been sexually assaulted. The point on which

the evidence was rejected was that there was no

independent admissible evidence to negative his

story as to the sexual assault and it is

encapsulated, if I may so put it, at the bottom of

page 26, in His Honour the Chief Justice's

judgment, right at the bottom of the page, last

line he says:

The present is a case where the belief

entertained is not self-evidently irrational

or mistaken, and, on the evidence, so far as

this Court knows, and so far as the

psychiatrists know, might be correct. In such

a case it is not open to a party to tender, in

the form of psychiatric opinion, a conclusion

as to whether or not the assault occurred,

followed by further conclusions to the effect

that what the appellant is saying about his

belief is not the result of a mistake or
dishonesty on his part, but is the consequence

of a paranoid delusion.

DAWSON J: Yes.
MR BASTEN:	That is the heart of the judgment below and it

is to that that we go, Your Honours.

DAWSON J: Well, go for what purpose? I mean it is

established law, is it not, that where opinion

evidence is given, one must establish the factual

basis for the opinion for it to be of any worth.

MR BASTEN:  I accept that as a general statement of

principle, Your Honour, but its application is less

clear, in my submission, in a case such as this,

and the difficulty that I wish to - - -

DAWSON J:  You are not disputing that principle?

Perry 3 6/8/91

MR BASTEN: 

I am not disputing the principle in general

terms, Your Honour. There are questions about how
far, in a criminal trial, it is necessary for the

accused to go to establish the basis on which such

an opinion is given and the extent to which an

expert can himself make an assessment as to

whether, at least in this particular situation, what he is being told is factual or delusional.

Perhaps if I can explain that in two ways,

Your Honours: firstly, there is very little

authority of which I am aware in relation to this

matter in a criminal trial. Such authority as

there is, other than this case, accepts the general
principle which Your Honour has put to me.

DAWSON J: 

Why should it be any different in a criminal

trial from any other trial?

MR BASTEN:  The difference, Your Honour, is that, in

application to a criminal trial, there is the

danger that the accused will be forced into a

position where if he is to make out his claim of

diminished responsibility, he may well be forced to

give evidence in order to support factual material

which would otherwise be obtained through the

psychiatrist. If - - ~

DAWSON J: But that is no difference from any other criminal

trial. There are many occasions in which the

accused, in order to establish a defence, may feel

impelled to go into the box, but that is not

extraordinary.

MR BASTEN:  Yes, I accept that, Your Honour.

DAWSON J: And it is not this case. There was adequate

evidence otherwise which would establish the facts

if the defence had chosen to call it or so it

appears.

GAUDRON J:  And if he were delusional the evidence would

establish what you want it to establish anyway.

MR BASTEN: Well there is a difficulty in establishing a

negative, if that is what Your Honour is putting to

me. I appreciate the significance of Your Honour

Justice Dawson's question. I do not want to go so

fa~ as to say that there is no application of that rule in this case. What I want to say is that, in

the particular circumstances which arise here, the

principle simply cannot be applied in the broad

sense in which it is stated in the Ramsay v Watson

and the civil cases, and it is that application

which requires some further consideration and there

are a number of reasons for that.

Perry 4 6/8/91

Might I explain how we - the application of the principle that Your Honour is stating, I think

is well set out in the Chief Justice's judgment and

it is really in terms of that that I would like to

approach the basis on which we seek special leave,
because we say that, with respect, His Honour's

approach is flawed and it is flawed really for

three reasons, in my submission. The first is

that, as His Honour noted, at page 26 point 5,

there are two possibilities; either there is

something self-evident about the evidence and I

will come back to that if I may, or for some other

reason it must be found to fall into one of four

categories and he says, in the sentence starting

"Assuming" in the middle of the page:

Assuming that what is being said is not self-

evidently false then one possibility to be

considered is that the belief is well-founded,

and that the person was in truth assaulted as

is claimed. Another possibility is that the

person is simply mistaken.	A third
possibility is that the person is lying.	A

fourth possibility is that the person is the

victim of a delusion.

Now the evidence which we were asked to call in the

present case in order to support the psychiatric

opinion would only, as I understand it, have

excluded the first, namely that there was truth.

As I read Their Honours' judgments, it is not

suggested that there was any difficulty in the

psychiatrists giving evidence as to whether they

believed that Mr Perry, if the untruth was

established, was mistaken, lying or suffering from

a delusion, so that there must be a stage at which

expert opinion is based upon certain hypotheses and

the expert can himself express a view as to those

hypotheses. So that it is not a simple answer to

say that we must establish the negative of the

assault.

DAWSON J: But it - and you may wish to answer that - is

said in the judgment that Doctor Jolly appreciated

from the outset that there was no evidence to

support the view that was given to him and this

seemed to be of some importance in the giving of

his opinion.

MR BASTEN: At the time of the first trial, Your Honour,

Doctor Jolly was concerned that it was, as it were,

an intuition that what he was being told was a

delusion or fabrication. He, at that stage, did

not have enough material to be firm in his view of

that and that, at that time, was a difficulty for

the applicant. After the second murder, the

inferences became much stronger and on the basis of

Perry 6/8/91

the further material and, as they frankly admit
with the benefit of hindsight, the psychiatrists
take a certain view about his mental state at the

time of the first trial. So that, in a sense, is

an answer to what Your Honour puts to me in terms

of Doctor Jelly's first report. There is a further

difficulty, though, that we are familiar with the
difficulty sometimes encountered by medical experts

in giving evidence in a form which is acceptable in

a court and there are no doubt statements in all

the reports in which some attempt is made to

conform to what they apprehend to be the rules of

evidence. Now whether that apprehension is correct

or not is not a matter which would influence this
Court, in my submission. If it is correct to say

that Doctor Jolly is entitled to draw inferences,

based on his clinical experience and the way in

which the history was given to him, and we say it

is sufficient that he be permitted to do that, then

his opinion is admissible, whatever he may have

been concerned about at the time. So I am not sure

that he was really making his own comments on the

rules of admissibility, but if he were, in my

submission, they would be disregarded.

But the second point, Your Honours, is that it

appears that, in this case, the circumstances which

gave rise to the Court of Criminal Appeal's

conclusion are posited on an ability to establish

certain factual material. In relation to the

second trial, the death in the cell occurred when

only the applicant and the victim were present.

The alleged assault or homosexual approach which

preceded that death simply could not have been

proved or disproved by anybody. Only the deceased

and the applicant could have given evidence of it.

The applicant was saying it occurred. It was only

the psychiatric opinion which could give a basis

for establishing that that was a delusion and in

respect of that material, in my submission, it

would be quite unfair if the accused were excluded

from calling evidence of the psychiatrist's opinion

as to his mental state, simply on the grounds that

there was no way in which the underlying fact could
be established, otherwise than by the psychiatrist
expressing in a view that the story he had been
told was delusional, and if that is true in

relation to a case where there is no ability to

assess the truth or otherwise, except through the

psychiatrist, then, in my submission, it would not

be proper to demand that the accused have to

produce evidence of falsity of a factual statement

in order to base a psychiatric opinion of delusion,

simply on the basis that it could be done.

DAWSON J:  Now, could we get back to what we are really

arguing about. We are arguing about the

Perry 6 6/8/91

admissibility of Doctor Jelly's opinion in the

first trial really, are we not? And then,

secondly, we are arguing about whether there was

fresh evidence which bears on the issue which was

admissible. Now, Doctor Jelly's opinion in the

first trial was based upon a version of the facts

which was given to him by the accused.

MR BASTEN: That is so.

DAWSON J: It was not based on, as it were, something else;

some intuition which established the opinion

otherwise, and that version of the facts could have

been proved or disproved and was not, and that was

the basis on which the evidence was held

inadmissible.

MR BASTEN: Well perhaps I could say - I am sorry, was that

what Your Honour was - - -

DAWSON J:	I am asking you that, yes.
MR BASTEN:	I see. Doctor Jelly's opinion was not rejected

at the first trial, but a direction was given to

the jury that there was no evidence, one way or the

other, as to whether or not the assault alleged

took place. In my submission, it is not fair to

say that that was the sole basis of Doctor Jelly's

opinion at the first trial. Doctor Jolly took

evidence from various members of the family and

others who were familiar with the conduct,

behaviour and appearance of the applicant and he

also formed a view upon the demeanor, appearance of

the applicant in telling him this story and on the

basis of what one might expect to flow if such a

story were indeed true and answers to questions in

that regard. So that, although it is based

undoubtedly in part upon a history told, the

intuition, the psychiatric judgment, is dependent

upon other factors, if Your Honour pleases,

including his clinical experience.

DAWSON J: But the Court of Criminal Appeal held that the

psychiatric evidence was strictly inadmissible at

the first trial, as I understand it. Am I wrong?

MR BASTEN: Well, I am not sure that they made a finding in

that regard, Your Honour, because they .were not

asked to consider that.

DAWSON J:	No.
MR BASTEN:	It may be a consequence of their finding in

relation to the later reports that that would

follow. That was not a point they directed - - -

Perry 7 6/8/91

DAWSON J: Yes. I am taking that from the grounds that you

seek to argue, that the Court of Criminal Appeal

erred in holding that the psychiatric evidence

tendered at the appeal was inadmissible evidence.

MR BASTEN: Tendered at the appeal, Your Honour, not at the

trial.

DAWSON J:  I am sorry, yes. And that psychiatric evidence

is the evidence in relation to the second incident?

MR BASTEN:  No, it is the evidence of the doctors -

basically as I understand it, the reports which are
before Your Honours, the opinion of doctors
obtained, after the second incident, but asked to

address their minds as to whether or not firstly

there was -

DAWSON J: Including Doctor Jolly?

MR BASTEN: Including Doctor Jolly, who provided further

reports, yes, Your Honour, that is so.

DAWSON J: There are two questions there.

MR BASTEN: Yes.

DAWSON J: Whether that is fresh evidence and whether it is

otherwise admissible?

MR BASTEN: Yes. Your Honour I am not sure that - might I

just deal with the second one to dispose of it.	It
is my reading of the Chief Justice's judgment that
that did not loom large in his reasoning. He does
note that there were two grounds upon which a
challenge was raised. At page 25 point 3 he sets

out at the top of the page the first ground, namely

that there was no factual basis for the expert

opinions expressed and secondly, that the evidence was not relevantly either fresh or new, but merely

amounted to a number of psychiatrists expressing

the same view that had been given at the first
trial by one of their number.	When he deals with

that, at page 27, at point 3 he says that he deals

with it under the broader heading of:

Miscarriage of Justice

anct if one goes down to about point 6 of the page,

he refers again to the situation that:

there is no evidence to show that the facts

relating to the alleged assault are not

capable of being independently checked. There

must have been witnesses to the assault, if it

occurred.

Perry 6/8/91

and so on.	As I understand what His Honour is
saying, it	really comes back to another way of
saying the	same thing, namely that there is no
admissible	evidence which could go to the jury on a
retrial.

DAWSON J: But you cannot come back now and say, merely

because of events which have occurred subsequently,
you cannot say anymore about the situation at the
trial than you could then; than Doctor Jolly could

then anyway.

MR BASTEN: Well I am not sure that His Honour is saying

that. I think it is accepted that the psychiatrist

can now say things about his state of mind at the

time of the first trial, which they could not have

said at the time, because they did not have, as it

were, sufficient evidence. The basic thrust of

their evidence is that at the time of the second

trial he was in a state of mental abnormality; it

was a state which, they believe, went back at least

as far as the first trial, but they say that they

can determine this with hindsight, taking account

of the whole of the material now available to them,

which is much more extensive and, although there is

some suggestion that he had been in prison during

that period, there was no suggestion in the

psychiatrist's report that that had influenced his

mental state and they formed the view that it

continued back, as it were, to -

DAWSON J:  I rather understood His Honour to be saying that

you could not draw anything from what had happened

subsequently. That it may well have been, had the
incident occurred which he described as having

occurred - - -

MR BASTEN:  The sexual assault?

DAWSON J: Yes, that may have set him off on a train of

events which eventuated as it did.	On the other
hand, if those instances had not occurred, then one

would take a different view of what had happened

subsequently.

MR BASTEN: Well, I understand what Your Honour is putting

to me. I think the -

DAWSON J:  I- am not putting to you; I thought that that is

what the Chief Justice said.

MR BASTEN: Yes, I accept that, but I think it is in this

context, Your Honour, that the psychiatric evidence

was not that he was suffering from any abnormality

of mind, other than one based upon a delusion as to

homosexual assault. It was that which was the

trigger event and it was not, as it ·were, a

Perry 9 6/8/91

realistic belief in that; it was a delusional

belief. That was the basis of the psychiatrist's

reports, so that the fact that his story was

positively untrue was a matter which was critical

to the success of the evidence, in my submission,

and on that basis it had to be shown, as it were,

to be a delusion. I do not shy away from that.

The only point that I think arises in this case is whether it is open to the psychiatrists to say that

it was indeed delusional on the basis of their

various forms of expertise and the material

available to them and accepting that the negative

has not and never was shown but, Your Honours,

the - - -

DAWSON J:  What His Honour is saying is they cannot show it

is delusional, on the first occasion, by reference

to what happened subsequently. The only way in

which you can show that is by calling evidence that

that which he said happened did not happen, and

that was evidence which was not called. That is

what His Honour is saying.

MR BASTEN:  I accept that, but that was, as it were, the

problem with the evidence at the first trial.

DAWSON J: But why does that not follow?

MR BASTEN:	I do not say it does not follow, Your Honour. The question is whether it is necessary to prove
that the assault did not take place, because if it
is sufficient that the psychiatrist can give
evidence that the sexual assault, prior to the
first death, did not take place, then, in my
submission, that evidence does become admissible.

DAWSON J: But His Honour is saying, you cannot call

psychiatric evidence to prove something which can
be proved quite easily by other witnesses, merely

because a subsequent death takes place in analogous

circumstances, and you cannot say that because,

even if it was not delusional on the first	occasion, that may have been what set this
particular person off on this course of activity.

MR BASTEN: Well, I accept that entirely, Your Honour.

DAWSON J: Well how can the psychiatric evidence be

admissible to prove that which is provable by

direct evidence of a sort which was not called?

MR BASTEN:  Your Honour, may I answer it this way. Our

point is that direct evidence, firstly, could not

have proved it and secondly, it simply was not a

case in which direct evidence was properly

required. The fact that the man said that he had

been assaulted at a party some four or five months

Perry 10 6/8/91

before was by no means simply disprovable by direct

evidence. There is no evidence as to the time or

the precise place of the party. It would be

necessary to call innumerable witnesses to say that

they were aware of no such party, if no such party

existed. It would be necessary to try and identify

people who might have been at such a party, had it happened. There is no evidence that there was any such material available. In my submission,

although on its face the statement appears to be
disprovable, it is not necessarily the case that it

is disprovable, especially if one assumes for the

moment that it is a delusion, and the only other

person who is mentioned as having been at the party

is the victim's mother, a woman who had lost her

husband to the father of the present applicant, on

one understanding of it and who had now lost her

son to the applicant and, with great respect, it is

hardly fair to require that the applicant call her

to give evidence in order to prove a delusional

statement if such it be. But she is the only

person who is identified as possibly being present.

GAUDRON J: But do you not have the further problem,

Mr Basten, that unless you can deal with the events of the party, this evidence simply is not fresh; it is a mere repetition of the evidence of

Doctor Jolly?

MR BASTEN: Well, with respect, no Your Honour, I suppose

that is the second half of the hurdle. My answer

to that is that the first murder might, as it were, be coincidence. When it occurs again you can posit

the belief that there was a similar cause.

GAUDRON J: Well I do not know about that. I mean, that is

an act of faith.

MR BASTEN: Well, it depends on the circumstances, I

suppose. In this case it is an act of psychiatric

assessment based upon the state of mind and the

history and the presentation of the applicant to
those particular psychiatrists.	Now, it may be

that there there are grounds for criticizing their

conclusions; it may be that their conclusions are not properly drawn from the evidence presented to

them, but in my submission that would be a jury

question and that does not go to the admissibility

or otherwise of the psychiatric evidence.	It is of
some consequence that four psychiatrists all

believe that they can now make that judgment and a

judgment as to the state of mind at an earlier

time. In a sense what they are saying is that the

intuition that this story was delusional may have

been very little more at the time that Doctor Jolly

first expressed his view, but the subsequent

Perry 11 6/8/91

history confirms that a similar delusional state in

their view now exists - - -

GAUDRON J:  The Full Courts say that that did not follow,

because the circumstances of the second death and

the plea really did not enable you even to say that

much.

MR BASTEN: Well, Your Honour, I am not sure that they go so

far as that. It seems to me that what the court

was saying was that you do not even get to that

question unless you have established that the first
alleged assault was delusional, and you cannot do
that otherwise than by calling evidence of the non-

existence of the assault or the party.

DAWSON J: That is true; that is one aspect of it, but you

could not say that it was fresh evidence, in the

case of a person who in one trial raised a defence

based upon a delusional state, that he exhibited in

different circumstances subsequently a delusional

state. You would never stop if that were so.

Every time he exhibited delusional behaviour in the

thereafter, you would be able to say that there was

fresh evidence relating to a time in the past when

the situation was different, because the whole

thing may well be cumulative.

MR BASTEN:  I accept that entirely, Your Honour.

DAWSON J: Well that is something that one would not regard

with great equanimity.

MR BASTEN: Well I certainly do not seek to go as far as

that, Your Honour. There are a number of judgments

involved there: one is that the circumstances are

materially different at the time of the second

incident and that is a question of fact; the second

is, that of course one does not draw it in such

broad terms. The bow drawn by the psychiatrist is

in a much narrower frame and indeed it has to be,

because in order to activate the defence, they have	to show that the delusional state was one which was
directly - - -

DAWSON J:  It raises the problem that Justice Gaudron was

putting to you; the evidence is simply not fresh

evidence. You have to deal, in relation to the

first trial, with evidence which was in existence

at the time, albeit it was not called. It may be

evidence which could not, by reasonable diligence,

have been discovered, but it has to be evidence

which was in existence at the time. You cannot

start using facts which occur in the future as

fresh evidence.	It just is not.	You would never
stop.

Perry 12 6/8/91

MR BASTEN: Well, I accept that that is a difficulty. I

have to accept that I must face up to that if I am

to succeed. My submission is that the psychiatric

condition existed at the time, let us suppose for

the purpose of the argument, but that the means of

establishing it was not present to the accused at

the time that he was called to trial. I accept

that in order to establish it he now says that he

must rely upon his conduct thereafter and, in my

submission, it is appropriate that he do - - -

DAWSON J: Evidence which was not in existence at the time

of the first trial.

MR BASTEN:	That is evidence which was not in existence to establish a fact which was, but could not otherwise
be known. It is a sort of latent defect, if
Your Honour pleases and, in my submission, he
should be entitled to call that evidence because
otherwise it depends upon almost coincidence as to
when he comes to trial and when the defect is first
shown to exist and it would appear to be unfair in the administration of justice that the same defect
allows a plea of manslaughter in a later case, but
not in an earlier one, when the expert evidence is
such that he was suffering from the same mental
condition at all time and, with great respect, I do not necessarily accept Your Honour's conclusion
that there is some sort of "flood gates" problem
here.  It does not necessarily mean that there will
be many cases in which - - -

DAWSON J: Well it is not a matter of flood gates; it is a

matter of principle. Can fresh evidence be

evidence which only comes into existence at some

subsequent time?

MR BASTEN: Well, in my submission, that is a necessary

consequence of the argument and I would submit that

it can.

DAWSON J: Not in relation to existing facts at the time,

that is - - -

MR BASTEN: Yes, in relation to - I am sorry.

DAWSON J:  - - - but in relation to facts which occur subsequently.

MR BASTEN: Yes, in so far as those facts illustrate an

existing condition at the time and that otherwise
the man would be serving a sentence which he should

not be properly serving. I can say no more on that

point, Your Honour. I accept that the point is one

which would require consideration of this matter,

perhaps for the first time in this context. All I

was saying was that I am not suggesting that it is

Perry 13 6/8/91

a matter which would occur frequently and it does not seem to me to be a matter which should not be addressed by the Court for the reason that it - - -

DAWSON J:  It perhaps should be more narrowly put. What is

really being said here is that there are facts

which throw light on the accused's position at the

second trial which is said to be the same position

as he was in in the first trial - his mental state

was exactly the same - and therefore those facts

should be admissible to prove as fresh evidence

what his state was at the first trial - - -

MR BASTEN:	Yes, that is - - -
DAWSON J:	- - - and of course there are a lot of

difficulties in between those steps.

MR BASTEN: There is a difficulty in principle, Your Honour;

there are some evidential difficulties perhaps

which - - -

DAWSON J:  And there are difficulties of this particular

case where, in any event, on the view that the
Court of Criminal Appe~l took, he had not proved

sufficient for the jury to be able to draw the

conclusion that he was in a delusional state at the

first trial or at least that there were defects in

the proposition.

MR BASTEN:  Yes, well on the basis either, as I read

His Honour, there must be independent evidence of

the non-happening of the assault, or it must be

inherently implausible, and His Honour

the Chief Justice seems to accept that a test of
inherent implausibility would be acceptable, in

that context, as an alternative to proving by other

evidence. Well, in my submission, there was

evidence which could have gone to the jury on that

basis and perhaps I have outlined it in terms of

what I said earlier as to the difficulty of showing

that the party did not happen or that he did not
attend.	I mean, it simply was, in the context of

the family feud history, inherently implausible on

one view of it and, as I read His Honour, if that

is to be an acceptable way of establishing the
facts, then it might well have been established in
this case and there is great danger in allowing

what appears to be a fairly subjective test to

exclude evidence of this nature. But I think what

Your Honour is putting to me is that there are two

steps in the argument: firstly, that it may be

possible to give evidence of delusion without

disproving the underlying history and, secondly,

that later facts may be used to that aid and, in my

submission, those are both matters which the

applicant would need to establish to.succeed on

Perry 14 6/8/91

this case, but they are both matters which have

some importance in terms of the administration of

justice and they are both arguable.	And those
would be my submissions, Your Honour.

McHUGH J:  It is very difficult to generalize in this area of delusions. I can recollect a case in front of

Mr Justice O'Brien where an offence of insanity

went to the jury and the underlying evidence were

the statements of the accused; he made a six hour

statement from the dock and Doctor Smallsback,

actually having heard him make the statement,

changed his view, having heard him in the dock.

MR BASTEN:  Yes.

McHUGH J: But he said things like the woman he had shot

used to sneak out at night and he would put pieces

of string up on the door and she would very

cleverly change them and put them back when she

came back in and he would notice that it was just a

fraction away and it was on that sort of material

that opinions were expressed that he did suffer

from delusions.

MR BASTEN: Well, Your Honour, I accept that there may be

questions of weight in that regard and that may be

what His Honour the Chief Justice was referring to

by a test of inherent implausibility, but it is my

submission that that is a matter which really, in

the first instance at least, should be left to the

psychiatrist. If they believe that they are able

to make statements of opinion in assessing that

material, that should be admissible in the

circumstances; it should not be rejected as not
being appropriate to be put to the jury. It is all

a matter of degree, perhaps, as to what weight they

can ultimately be given but, in my submission, it

is not obvious that this material does not fall

sufficiently close to the category that Your Honour

is mentioning for it to be put to a jury. Those

are my submissions.

DAWSON J:  We need not trouble you, Mr Howie.

MR HOWIE: If the Court pleases.

DAWSON J:  We are not persuaded that the Court of Criminal

Appeal was in error in reaching the conclusions

which it did and special leave to appeal will be

refused.

MR HOWIE: If the Court pleases.

AT 11.27 AM THE MATTER WAS ADJOURNED SINE DIE

Perry 15 6/8/91