R v Alford

[2005] VSC 405

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1406 of  2004

THE QUEEN

V

JAMES GORDON ALFORD

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JUDGE:	Hollingworth J
WHERE HELD:	Geelong
DATE OF HEARING:	12 October 2005
DATE OF RULING:	12 October 2005
CASE MAY BE CITED AS:	R v Alford (No 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 405

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Criminal law - application by Crown for leave to raise question of mental impairment - application opposed by accused -  expert evidence that accused suffering from delusional disorder at the time of offence - evidence capable of supporting verdict of not guilty on grounds of mental impairment  - leave granted

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s.20(1)(b) and s.22(1)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Trapnell	Solicitor for Public Prosecutions
For the Accused	Mr G Mullaly	Victoria Legal Aid

HER HONOUR:

1. This is an application by the Crown, pursuant to s.22(1) of the Crimes (Mental Impairment and Unfitness to be Tried Act) 1997, for leave to raise the question of mental impairment.  The application is opposed by the defence.

1. Section 22(1) provides that “[t]he question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution”.

1. The application has been made before the empanelment of the jury, because the Crown prosecutor wants to open on the question of mental impairment; the issue lies at the heart of the way the Crown puts its case.  It seems to me appropriate that the issue be dealt with at this time.

1. In support of the application, the Crown relies upon various psychiatric reports, which comprise Exhibit A. In particular, I have had regard to the reports of Dr Douglas Bell, dated 25 October 2003 and 1 November 2004, Dr Ruth Vine, dated 19 March 2004 and Dr Debra Wood, dated 3 May 2004. Each of Dr Bell, Dr Vine and Dr Wood concludes that, at the time of the alleged offences, Mr Alford was suffering from a delusional disorder, such that he was unable to reason with a moderate degree of sense and composure about his conduct. That is to say, he did not know that his conduct was wrong in terms of s.20(1)(b) of the Act.

1. Exhibit A also includes reports from Professor Paul Mullen.  He appears not to share the other psychiatrists’ conclusions in relation to the delusional disorder.  However, I note that Professor Mullen's reports are primarily concerned with the question of fitness to plead.  I also note that, according to Dr Bell, other treating psychiatrists who have seen Mr Alford whilst he has been in Thomas Embling Hospital have expressed differing views about the diagnosis of delusional disorder.  In particular, Dr Gunvent Patel concluded that Mr Alford had some sort of personality disorder, rather than a delusional disorder.

1. The defence opposes the application on several grounds. It is said that I should be reluctant to grant leave, as the procedure under s.22(1) is a new procedure which had no equivalent at common law. That may well be so, but Parliament has chosen to introduce this provision into the Act, and I have to give it some effect.

1. Defence counsel submitted that the consequences of a finding of not guilty by reason of mental impairment are serious and include a supervision order of possibly indefinite duration. Accordingly, it was said that leave should not be granted readily. I accept that serious consequences may flow from such a finding. Of course, serious consequences would also flow from a finding of guilty of attempted murder. Be that as it may, Parliament has clearly had regard to the entire scheme, including the question of sentencing disposition, in enacting the relevant provisions, including s.22(1). It has chosen to leave the judge with an apparently unfettered discretion under the sub-section, notwithstanding the sentencing consequences.

1. Defence counsel argued that the Crown ought not be able to raise a defence which the accused did not wish to have raised. However, s.22(1) clearly envisages the possibility that the Crown may want to raise the issue of mental impairment, even if the defence does not. Moreover, it is not unusual for a jury to be left with a defence which the accused person has not wished, for tactical or other reasons, to be left to the jury. Provocation is a classic example of such a defence.

1. The psychiatrists’ diagnosis of delusional disorder is dependent on their assumptions as to the truth or falsity of certain facts.  For example, if there were objective evidence to support some of Mr Alford’s claims, such as his claim that his son was being tortured and exposed to paedophiles, then his relevant beliefs may not be delusional.  However, it is not unusual for a psychiatric or other expert opinion to be expressed to be given on the basis of certain assumptions about the underlying history or facts.  If the assumed matters are not in fact established at trial, then the expert opinion may be of little, if any, weight at the end of the trial.

1. Section 22(1) does not appear to have been the subject of any judicial consideration. I have not been referred to any authority or been able to find any in the short time available to me.

1. The defence argued that leave should only be granted in a case where there was "a real and substantial question supported by compelling evidence", which was said not to be the case here.  I doubt very much that s.22 was intended to set such a high threshold before the question of mental impairment may even be raised.

1. Giving the words their ordinary and natural meaning, s.22(1) grants a very broad discretion to a trial judge. It is obviously a discretion that has to be exercised having regard to the need to ensure a fair trial.

1. Sub-section 22(1) should be looked at in the light of the rest of s.22. Sub-section (2) provides that if there is admissible evidence that raises the question of mental impairment, the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings. So there are two parts to the section: one deals with when the question may be raised and the other with when the question must be left to the jury. If the question must be left to the jury “if there is admissible evidence that raises” it, then it seems logical that the test for granting leave to even raise it would not be a higher test than that.

1. I was referred to the decision of Teague J in R v R[1], in particular at [22] and [23], where his Honour discussed the common law position, including the case of R v Hawkins[2].  Hawkins was a case in which defence counsel did not want insanity, as the defence was then called, left to the jury.  The High Court said that:

"A trial judge must determine whether there is evidence capable of supporting a verdict of not guilty on the grounds of mental impairment.  If so the trial judge must leave that verdict to the jury."

[1][2003] VSC 187.

[2](1994) 179 CLR 500.

1. Whether, at the end of this trial, there will be admissible evidence such as to require me to leave the question of mental impairment to the jury is a matter that I will have to determine at a later stage.  If the evidence which is ultimately led does not support or negates the diagnosis of delusional disorder, then I may not leave the question to the jury.  However, on the material present before me, it is likely that there will be admissible evidence which may be capable of supporting a verdict of not guilty on the grounds of mental impairment.  Accordingly, it is appropriate that I grant leave to the Crown to raise the question of mental impairment, notwithstanding that Mr Alford does not wish it to be raised.

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