R v Angel - [2016] SASCFC 2

Supreme Court of South Australia
(Court of Criminal Appeal)
R v ANGEL
[2016] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
28 January 2016
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
The appellant was charged with the offence of aggravated indecent assault relating to Mrs E, an elderly woman resident at the nursing home where the appellant worked as a carer. It was the prosecution’s position that the appellant was mentally incompetent to commit the offence. The appellant disputed his mental incompetence. At the beginning of the trial the trial Judge ruled that the objective elements of the offence would be held first, pursuant to s 269N of the Criminal Law Consolidation Act 1935 (SA). The trial Judge explained to the jury where the enquiry into the objective elements fit in the process mandated under Part 8A of the Criminal Law Consolidation Act 1935 (SA), and that the trial of the objective elements was the first stage of the enquiry that that there may be two later stages. The jury returned a unanimous verdict that the objective elements of the offending had been established beyond reasonable doubt. The appellant appeals against that verdict.
Whether the verdict should be set aside because the trial Judge descended into more detail than was necessary to explain the procedure and consequences of each stage of trial under the provisions of Part 8A of the Criminal Law Consolidation Act 1935 (SA). Whether the verdict of the jury is unreasonable, unjust or unsafe in all of the circumstances. Whether the trial Judge invited the jury during the summing up to unreasonably speculate about matters that were not the subject of any evidence.
Appeal dismissed.
Held per Kelly J (Vanstone J and David AJ agreeing) (dismissing the appeal):
1. The procedures set out in Part 8A of the Criminal Law Consolidation Act 1935 (SA) imply that a Judge does need to, at the very least, inform a jury of the nature of the procedures under Part 8A. This will necessarily include explaining the difference between objective elements and subjective elements, and the fact that there is a possibility of two other stages of a trial after the completion of the first stage of the trial of the objective elements. The clear and thorough directions the trial Judge gave obviated any potential for the jury to have been deflected from their task or confused about the nature and factual focus of their enquiry.
2. The finding of the jury as to the objective elements was open on the evidence.
3. The impugned comments of the trial Judge did not go beyond legitimate comment on the…

Grounds of appeal

[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.

Continue reading R v Angel

Details

AGLC: R v Angel [2016] SASCFC 2
Case: [2016] SASCFC 2
Decision Date: 28 January 2016

CaseChat Overview and Summary

The appellant, R v Angel, appealed to the Court of Criminal Appeal of South Australia against a jury's verdict concerning charges of aggravated indecent assault. The dispute arose from allegations that the appellant, while working as a carer, indecently touched a resident of a nursing home. The appellant denied the allegations and disputed the objective elements of the offence. A significant factor in the case was the appellant's diagnosis of bipolar affective disorder. Unusually, the prosecution at trial argued the appellant was mentally incompetent to commit the offence, a position the appellant disputed.

The legal issues before the Court of Criminal Appeal included whether the jury's verdict on the objective elements of the offence was unreasonable, unsafe, or unsupported by the evidence. Additionally, the appeal raised concerns that the trial judge's summing up may have compromised the verdict by descending into excessive detail regarding the procedural stages and consequences under Part 8A of the Criminal Law Consolidation Act, potentially confusing or improperly influencing the jury. A further ground alleged the judge invited the jury to speculate on matters not supported by evidence.

The Court of Criminal Appeal dismissed the appeal. The judges were satisfied that the jury's verdict on the objective elements was open to them based on the evidence presented. They found the trial judge's directions to the jury to be thorough, comprehensive, and accurate. Specifically, the detailed explanations of the procedures under Part 8A of the Criminal Law Consolidation Act were considered to have clarified, rather than confused, the issues for the jury, focusing their attention on the matters requiring determination. No errors were identified in the summing up that would suggest the verdict was affected by misdirection or non-direction.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals on three grounds relating to the jury’s verdict and the trial Judge’s summing up to the jury. Permission to appeal was granted in respect of ground 2. Both grounds 1 and 3 were referred to this Court. Background The allegations which gave rise to the charge involved the appellant lifting Mrs E’s top exposing one of her breasts, and indecently touching her breast. At the relevant time the appellant was working as a carer at the nursing home where Mrs E resided. The offence occurred in the presence of a witness, Ms Andrews, who was studying age and disability care and on a student work placement at the nursing home. The appellant denied the allegations made against him and all of the objective elements were disputed at trial. Relevantly, the appellant suffers from bipolar affective disorder having been first diagnosed in March 2003 in Queensland. The diagnosis was confirmed in South Australian in 2009 following a suicide attempt by the appellant. Unusually, it was the prosecution’s position at trial that the appellant was mentally incompetent to commit the offence. The appellant disputed his mental incompetence. On the retrial, in accordance with the decision of the Court of Criminal Appeal in R v Angel[2] and the trial Judge’s ruling, the Court embarked upon the enquiry pursuant to s 269N of the CLCA into the objective elements of the offence.[2] (2014) 119 SASR 565. The jury returned a unanimous verdict after hearing evidence over three days, finding that the objective elements of the offence had been established beyond reasonable doubt. Following that verdict, the appellant’s counsel announced a change in the appellant’s position and conceded that the appellant was mentally incompetent to commit the offence. Consequently, the trial Judge made a declaration that the appellant was mentally incompetent and not guilty of the offence. He declared the appellant liable to supervision and ordered reports under the provisions of s 269Q and s 269T of the CLCA. The Appeal Ground 1 is a complaint that the verdict of the jury on the objective elements is unreasonable, unjust or unsafe in all of the circumstances. Ground 2 is a complaint that the verdict was compromised and should be set aside because the trial Judge descended into more detail than was necessary to explain the procedure and consequences of each stage of a trial under the provisions of Part 8A of the CLCA to the jury. It is said this approach by the trial Judge was likely to have improperly influenced the jury, or at least distracted or confused the jury. Ground 3 is a complaint that the trial Judge invited the jury during the summing up to unreasonably speculate about matters that were not the subject of any evidence. It is convenient to commence by discussing the second ground of appeal before moving to the other grounds in respect of which permission to appeal is sought. Ground 2: That the trial Judge erred because he made more than minimal reference to the possibility of further trials being held in relation to mental competence and/or the subjective elements of the offence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J (dissent)

I would dismiss this ground of appeal.Summary and Conclusion Having conducted my own independent review of the evidence I am satisfied that the verdict of the jury on the objective elements was open on the evidence. The trial Judge’s directions to the jury were thorough, comprehensive and accurate. In particular, the directions that the trial Judge gave in relation to the procedures under Part 8A of the CLCA both at the outset of the trial and during the summing up were clear, accurate, comprehensive and did not have the potential to deflect the jury’s attention away from the issues they had to decide. On the contrary, in my view they had the opposite effect of focusing the minds of the jurors on precisely the issues that they needed to determine at that stage of the trial. No error has been identified in the trial Judge’s summing up which causes me any concern that the verdict of the jury may have been affected by error. The findings of the jury in relation to the objective elements were open. I would dismiss the appeal. DAVID AJ: I would dismiss the appeal. I agree with the reasons of Kelly J. In particular, I agree that the trial Judge was correct to explain in detail the psychiatric evidence of Dr Raeside at the first stage of proceedings. It is difficult to understand how a jury could make any sense of the proceedings without such a careful and thorough explanation. Such an explanation was given in this case and, rather than causing confusion or distraction, clarified the matter admirably.Appendix ABefore that occurs I must explain that these proceedings will not be conducted in the way a criminal trial is usually conducted and that's because the prosecution will contend that you [should] find Mr Angel not guilty of the charged offence because he was [mentally] incompetent to commit the offence during the mental illness. This is an allegation which I understand that Mr Angel denies. He denies that he touched the alleged victim in any way, in any criminal way, and, furthermore, he denies that he was mentally incompetent at the relevant time. Let me explain. Up until about 30 years ago the defence of mental incompetence was called the defence of insanity. Parliament modernised the defence of insanity by enacting special provisions which were included in the Criminal Law Consolidation Act. Those provision (sic) now define what is called the defence of mental incompetence and stipulate the procedures to be undertaken when the issue is raised. Usually a defence of mental incompetence is raised by the defence but it sometimes is raised by the prosecution.Before I explain the procedures to be undertaken, it is appropriate that I mention some fundamental principles of the criminal law. I think that those principles will help you better understand the issues that may arise for your consideration and the nature of the proceedings to be undertaken in this case. Under our criminal justice system, a person accused of a crime is presumed innocent unless and until the jury finds the charge proved. The prosecution carries the onus of proving the accused's guilt beyond a reasonable doubt. The accused carries no onus. He or she does not have to prove a thing. It is the prosecution which must do all the proving. The accused does not have to prove his or her innocence. Under the law, an accused person is presumed innocent unless and until the prosecution proves the accused's guilt beyond a reasonable doubt. Now, every criminal offence contains different elements or ingredients. Before a person can be convicted of a crime, the prosecution must prove each and every element of the charged offence. The elements of an offence fall into two categories, namely, the objective elements and the subjective elements. Broadly speaking, the objective elements constitute the physical act or acts that the accused must perform in order to commit the crime, and the subjective elements relate to the state of mind the accused must possess at the time that he performed, or she performed, the physical act; in other words, the subjective elements concern the guilty state of mind the accused must possess at the time of performing the act which is the subject of the charge.Let me illustrate what I am saying by giving you an example. For a person to be convicted of the crime of murder he must: one, unlawfully perform an act, say, firing a gun, which causes the death of another person and, two, perform the act with the intention of killing the victim or causing the victim grievous bodily harm. The first requirement that the accused unlawfully performed the act which causes death constitutes the physical act that must be performed by the accused for him to be found guilty of murder; in other words, they are the objective elements of murder. The second requirement that the accused unlawfully performed the act with the intention of killing the victim or causing the victim grievous bodily harm is the state of mind required to commit the offence of murder; in other words, they are the subjective elements of the offence of murder. In the example I have given you it would not be sufficient for the prosecution to prove the objective elements, namely, that the accused shot and killed the victim. It may have been an accident. To prove murder it is necessary for the prosecution to further prove the subjective elements, namely, the accused shot the victim with the intention of killing that person or causing that person grievous bodily harm. At a later stage of these proceedings I will explain to you the elements of the offence of aggravated indecent assault. Now, an accused person charged with a criminal offence may be not guilty of that offence for a variety of reasons. He may not have performed the objective elements of the offence. If he did perform the objective elements of the offence, he may not have done so with the requisite state of mind; in other words, the subjective elements have not been proven. He may not have shot the victim, it may have been someone else, or he may have shot the victim without the intention of killing him or causing him grievous bodily harm in the case of murder. A person who is found not guilty of committing any crime is discharged unconditionally and that is obvious. They have committed no crime, so they are allowed to go free. That principle, however, is subject to one exception. A person who is found not guilty of committing a crime on the grounds that he or she was mentally incompetent to commit the crime is not discharged unconditionally. A person who is found not guilty on the basis that he or she was mentally incompetent to commit the offence is declared by the court to be liable to supervision.Obviously a person is not subject to criminal punishment because the person has committed no crime. The nature of the supervision is determined by the judge in accordance with the relevant law. The judge may, for instance, make an order detaining a person in an appropriate facility so that that person can receive treatment, or the judge may release that person on a licence on various conditions, for example, undergoing treatment in the community and so on.So, let me then explain the procedure, in general terms, and the actual potential issues for your consideration in this matter. Initially you may feel a little overwhelmed by the potential complexity of the issues and procedures. However, I believe the directions I will give you now and the more detailed directions I will give you later in the course of these proceedings, together with written notes that I will hand out in due course, will enable to you clearly follow and understand the issues and procedures involved.To help you follow my initial directions, I have prepared a flow chart which will now be handed to you. Before I turn to discuss the contents of the flow chart, I may also provide you with a copy of The Information or charge sheet which was read out at the commencement of the trial. The Information is the document filed by the Director of Public Prosecutions against a person who is alleged to have committed that offence.In the present case, The Information states that the accused, Stephen Paul Angel, is charged with the following offence under the heading 'Statement of Offence'. The name of the offence is specified, 'aggravated indecent assault', which is an offence contrary to s.56 of the Criminal Law Consolidation Act 1935. The Information sets out the particulars of the offence. In this matter the particulars state that on 28 July 2011 at Oakden the accused indecently assaulted [Mrs E]. Underneath those particulars are allegations of aggravation. The information states that it is further alleged that Stephen Paul Angel committed the offence knowing that [Mrs E] was over the age of 60 years, and that Stephen Paul Angel committed the offence knowing that [Mrs E] was in a position of particular vulnerability because of her physical or mental disability. In this case you will hear that [Mrs E] was 99 years of age at the time and suffered from dementia. Now, I turn to the chart to explain the procedures involved in this case. The first issue to be determined as set out on the top of the chart, and it may turn out to be the only issue that you have to determine, is whether the prosecution has proved all of the objective elements of the offence of aggravated indecent assault. The prosecution carries the onus of proving the objective elements beyond reasonable doubt. If, at the end of the day, you find that the prosecution has failed to establish the objective elements, the accused must be found not guilty and discharged unconditionally.Even if Mr Angel was suffering from a mental illness, he must be discharged unconditionally if you find that he did not perform the act which brings him before the court. If you find that the prosecution has established the objective elements beyond reasonable doubt, I must record a finding to that effect. You will then be required to go on to consider the second issue, which is the issue of mental incompetence.So, you will see at the top of the chart I explain under the heading 'First issue: objective elements. The jury hears evidence, submissions from counsel and a summing from the judge on the issue of objective elements. If the jury finds that the objective elements have not been established beyond reasonable doubt, the accused is found not guilty of the offence and discharged'. On the right-hand side of the chart 'If the jury finds that the objective elements have been established beyond reasonable doubt, the judge records a finding to that effect and directs that a trial of the accused's mental competence to commit the offence take place'.At this point I am not going to weigh you down with detailed directions on what constitutes the objective and subjective elements of the offence of aggravated indecent assault. I anticipate that the prosecutor might say something about that in the course of his opening address and I will give you detailed directions about the elements of the offence at a later stage.At this stage it is sufficient to say that what the prosecution must prove is that the accused performed the physical act of fondling or touching [Mrs E’s] breasts. You are not required to determine his state of mind at the time he performed that act. You are not concerned with what he was intending or what he was seeking (sic) at the time. The sole focus of your consideration at this point is whether he touched [Mrs E] in the manner alleged. As I have said, this is an allegation which I understand Mr Angel will deny.The procedure to be adopted at this point is that Mr Lesses will open the prosecution case and inform you of the witnesses he will call and outline the evidence that the prosecution will lead on this issue. He will explain to you, in broad terms I assume, the nature of the evidence that will be given by the witnesses. Mr Tremaine may also deliver an opening address and outline the issues from the defence perspective and any evidence the defence intends to present. Once those opening addresses have been delivered, the prosecution will call its witnesses and tender any exhibits that it proposes to tender. The defence will then present its case, which may involve calling witnesses and tendering exhibits. After the evidence has been presented, counsel will address you and I will then sum up to you on this issue of the objective elements. After I have completed my summing up, I will ask you to retire to consider this issue. Once you have completed your deliberations on this issue, you will be called back into court and asked whether you find the objective elements of the offence proved. If you are satisfied beyond reasonable doubt that the prosecution has proved the objective elements, you will of course answer 'Yes' to that question. If you are not satisfied beyond reasonable doubt that the prosecution has proved the objective elements, your answer would be 'No'.As I said, if you are not satisfied beyond reasonable doubt the objective elements have been established, the accused will be found not guilty and discharged. However, if you are satisfied beyond reasonable doubt that those elements have been established, it will be necessary for you to consider the second issue, namely, whether the accused was mentally incompetent to commit the charged offence. So, I turn to explain that second potential issue, the issue of mental incompetence.The definition of 'mental incompetence' is contained in s.269C of the Criminal Law Consolidation Act. I will not stop to explain to you the law governing the offence (sic) of mental incompetence unless and until that becomes necessary. If it does become necessary, I will give you detailed oral directions, which will be supplemented with written notes, explaining the nature of the defence.But at this point it is sufficient to say that a person is mentally incompetent to commit an offence if at the time of the conduct alleged to give rise to the offence, that is, if at the time of performing the act which is the subject of the charge the person is suffering from a mental impairment and in consequence of the mental impairment: (a), does not know the nature and quality of the conduct or, (b), does not know that the conduct is wrong or, (c), is unable to control the conduct.Now, an accused person is presumed to be mentally competent to commit the offence unless the contrary is proved. In the present case, the prosecution has raised the issue of mental incompetence and therefore carries the onus of proving that the accused was mentally incompetent.The prosecution must prove that the accused was mentally incompetent on what is called the balance of probabilities. This is a much lower standard than proof beyond reasonable doubt, which is the onus the prosecution carries in relation to proving the other issues. The prosecution must prove that it is more probable than not that the accused was mentally incompetent.In relation to the second stage, both counsel may give an opening address. The prosecution will call its witnesses on that issue. The defence will call any witnesses that it wishes to call on that issue. Counsel will then deliver their closing addresses on the issue of mental incompetence. I will then sum up to you on the issue of mental incompetence.Now, if I have completed my summing up I will ask you to retire and consider your verdict on that issue. Once you have completed your deliberation you will be called back into court and you will be asked whether you find the accused mentally incompetent to commit the offence. If you are satisfied on the balance of the probabilities that the prosecution has proved the accused to be mentally incompetent your answer, of course, will be 'Yes'. If you are not satisfied on the balance of probabilities that mental incompetence has been proven, your answer will be 'No'. If you find the accused to be mentally incompetent then he will be found not guilty but declared liable to supervision.However, if you are not satisfied that the accused was mentally incompetent to commit the offence it will be necessary for you to consider the third issue and that is whether the prosecution has proved the subjective elements of the offence. In relation to the third issue, if we go back to the chart, the second issue is mental incompetence, the jury hears evidence, submissions from counsel and summing up from the judge on the issue of whether the accused was mentally incompetent to commit the offence. If the jury finds that it has been established on the balance of probabilities that the accused is mentally incompetent the accused is found not guilty and declared by the judge to be liable to supervision.If the jury finds it has been established on the balance of probabilities that the accused was mentally incompetent (sic), the judge records a finding that the presumption of mental competence has not been displaced and directs the trial of the subjective elements take place. I will have that re-done and give you a new chart.Let me turn to the third issue. The prosecution carries the onus of proving the subjective elements beyond reasonable doubt. If the prosecution fails to prove the subjective elements the accused must be found not guilty and discharged unconditionally. If the prosecution proves the subjective elements of the offence then the accused is found guilty of the offence and is subject to criminal punishment.In relation to the third issue, both counsel may give you an opening address. The prosecution will call the evidence which it considers to be relevant on the issue. The defence may call evidence that it considers to be relevant on that issue. After the completion of that evidence both counsel will address you and I will sum up to you on the issue of the subjective elements. You will be asked to come back into court after you have completed your deliberations and asked whether you find the subjective elements to have been proved. If you are satisfied beyond reasonable doubt you answer 'Yes' to that question. If you are not satisfied you will answer 'No'.So ladies and gentlemen, you will see that in this matter there are potentially three mini trials. A trial dealing with the objective elements, if you do not find the objective elements proven beyond reasonable doubt that is the end of the matter, the accused is discharged. Your involvement finishes and so does mine. If you do find the objective elements proven you will be required to go on and consider whether he was mentally incompetent to commit the offence. If you find he was mentally incompetent to commit the offence he will be found liable to supervision. That will be the end of your involvement and I will be required to consider what should be done with Mr Angel in accordance with the law when a person is found to be liable to supervision.If you find that he was mentally incompetent (sic) then you will go on to consider the subjective elements. If they are proven he will be subject to criminal punishment. If they are not proven he is discharged and is free to go, regardless of whether he suffers from mental illness or not.Appendix BFirst issue: Objective elementsThe jury hears evidence, submissions from counsel and a summing up from the judge on the issue of objective elements

Ratio Decidendi

Legal Principle Established

Established by:

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