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 state of the evidence.
Criminal Law Consolidation Act 1935 (SA) s 56, Part 8A, s 269N, s 269Q, s 269T, referred to.
M v The Queen (1994) 181 CLR 487, applied.
R v Angel (2014) 119 SASR 565; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; Lucas v The Queen (1970) 120 CLR 171, discussed.

R v ANGEL
[2016] SASCFC 2
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons written by Kelly J.
KELLY J.
Introduction
The appellant appeals against the verdict of a jury relating to the objective elements of an offence.
The appellant was charged with the offence of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The alleged offending took place on 28 July 2011 at a nursing home in Oakden. The victim, Mrs E, was a 99 year old resident of the nursing home and was suffering advanced cognitive impairment as a result of vascular dementia. The alleged aggravating circumstances were that the appellant knew that Mrs E was over the age of 60 years, and also knew that Mrs E was in a position of vulnerability because of her physical or mental disability.
At the beginning of the trial, the trial Judge ruled that the trial of the objective elements of the offence would be held first, pursuant to s 269N of the CLCA. His Honour also ruled that the same jury would determine the objective and subjective elements of the offence and also the issue of mental competence, which his Honour understood was contested. This trial was in fact a retrial following a successful appeal in the Court of Criminal Appeal.[1]
[1] R v Angel (2014) 119 SASR 565.
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
The appellant complained that the trial Judge gave an unnecessarily detailed explanation to the jury as to the procedure stipulated in Part 8A of the CLCA, and therefore the verdict should now be set aside.
This ground of appeal appears to be based on an obiter remark in the judgment in R v Angel:[3]
On a retrial, the trial of the objective elements should be held first. The principal prosecution evidence at that trial is that of Ms Andrews. During that trial (and particularly so if Mr Angel again elects for trial by jury), minimal reference should be made to the fact that there might be a further trial to be held as to mental competence should the objective elements be established.
[3] (2014) 119 SASR 565 at [87] per Peek J.
Part 8A of the CLCA prescribes a comprehensive code of practice when the issue of mental impairment arises in a criminal trial. It is implicit in that legislative scheme that any trial Judge will need to say something about the procedures to be followed in any given case. It is obvious that at the very least the Judge will need to inform the jury of the nature of the procedures under Part 8A in order to explain, for example, what an enquiry into the objective elements in the trial will entail. In particular, on any trial on the objective elements it is difficult to understand how a Judge could explain to a jury the enquiry that it must embark upon, without first explaining the difference between objective elements and subjective elements, and the possibility that, in the event that the objective elements are established, there may be one or possibly two, further stages of the trial, namely an enquiry into the mental competence of the accused and/or a subsequent trial as to the subjective elements.
In this case there was a discussion between the Judge and counsel at the outset of the trial about whether the mental competence of the appellant would be genuinely in dispute. At that stage counsel for the appellant was unable to confirm whether there would be any concession made as to the mental competence issue, whereupon the trial Judge remarked it would then be necessary for him to explain to the jury the procedures that it was being called upon to undertake.
Before any evidence was heard the trial Judge carefully and meticulously explained to the jury where the enquiry into the objective elements fits in the process mandated under Part 8A of the CLCA. The Judge explained that this was the first stage of the enquiry and that there may be two later stages.
The appellant now argues that the trial Judge erred because, in giving such a detailed explanation to the jury, he created distraction and confusion which had the real potential to deflect the jury from the issue they were empanelled to decide, namely whether the objective elements of the offence of indecent assault had been proved. The appellant submitted that discussing possible outcomes effectively amounting to stating the penalties that the appellant would receive, had the consequence of failing to keep the trials separate and was likely to have improperly influenced the jury and deflected them away from their task.
In evaluating the merits of this ground it is convenient to first consider the legislative scheme in Part 8A of the CLCA in the context of the issues that were to be agitated at the trial of the appellant.
As Duggan J observed in Question of Law Reserved (No 1 of 1997),[4] Part 8A governs the procedure to be followed in all cases when the issue of mental competence arises in a criminal trial. Although drawing heavily on common law concepts, Part 8A nevertheless represents a significant departure from former common law procedures in which the question of insanity was dealt with in the same trial as the issue of guilt. The current procedure identifies three issues which may arise for determination: objective elements, subjective elements, and mental competence to commit the offence. In Question of Law Reserved (No 1 of 1997) Duggan J set out a flowchart[5] which he used as a convenient tool to explain the inter-relation of those procedures. It is plain enough that the flowchart used by the trial Judge in summing up to the jury was based on the chart used by Duggan J in Question of Law Reserved (No 1 of 1997), with appropriate amendments made to suit the particular factual circumstances.
[4] (1997) 70 SASR 251.
[5] (1997) 70 SASR 251 at 254-255.
Both counsel referred to the issue of mental competence in their opening addresses. The fact that both counsel found it necessary to refer in the way they did to that issue highlights the impracticality of the proposition that the issue of mental competence should be barely mentioned at the first stage of the trial into the objective elements of the offence.
Immediately after those opening addresses the trial Judge again provided further explanation to the jury regarding the issues that had been raised by counsel in their addresses. He said:
Mr Lesses has mentioned that Dr Raeside will be called by the prosecution on this issue to give evidence that Mr Angel has a history of bipolar disorder and that the scripture of the incident given by Ms Andrews is consistent with him having a hypermanic (sic) episode, the fact that the hypermanic (sic) episode is relevant to the question of whether he performed the act alleged against him. And I will give you further directions on that in due course. But in essence, his hypermania (sic) might explain why he touched her. It may further explain why he apparently did that in a brazen manner in the presence of an eyewitness and it might also explain the unusual statements that he's said to have made to Ms Andrews immediately after the touching occurs. But that is the only relevance of Dr Raeside's evidence at this point. You're not focussing on whether he is mentally incompetent. That's only something you have to worry about if we get to the second stage.
The trial Judge was correct to explain to the jury that the psychiatric evidence of Dr Raeside was relevant at each stage of the trial, including at that first stage. It was important that the Judge explain that the evidence was relevant to explain first what the jury might otherwise find strange, disinhibited or bizarre behaviour, and second, why the appellant may have had no recollection of the events the subject of the charge, or if he did, why he would feel ashamed and embarrassed by it.
In explaining the relevance of the psychiatric evidence at the trial of the objective elements it was essential that the trial Judge give some explanation of the issues, the psychiatric evidence, and most importantly how they fitted into the whole process. Given the potential overlap in the relevance of the psychiatric evidence at more than one stage of the enquiry, it was even more important that the trial Judge give a clear explanation at that first stage of the particular role and relevance of that evidence to the jury.
Again at the conclusion of counsel’s addresses the Judge carefully directed the jury that the only issue for them at that stage of the trial was whether the appellant had performed the physical acts alleged against him.
Contrary to the appellant’s submission, I consider that what was more likely to have confused or distracted the jury in this case was the failure to properly inform them of the procedures laid down by Part 8A of the CLCA and, in brief, what their responsibilities were at each stage of the trial.
The Judge’s directions as a whole are set out in Appendix A to this judgment. In my view those directions, together with the flowchart set out at Appendix B to this judgment, provided the jury with a thorough and clear explanation of the procedures they were required to follow, outlined the issues necessary for them to address at the first stage of the trial, and assisted the jury to keep firmly in mind the limited relevance of the psychiatric evidence at the first stage of the trial, whilst also appreciating the relevance of that evidence at possible later stages of the trial. In my view, the Judge’s directions and the flowchart could only have assisted the jury.
The question that is asked of a jury at the conclusion of a trial on the objective elements is not “do you find the accused guilty or not guilty?” but “do you find beyond reasonable doubt that the objective elements of the offence of aggravated indecent assault have been established?”. Therein lies the explanation for the necessity of the approach which the trial Judge took: it is difficult to understand how any trial Judge could explain to a jury its responsibilities in the context of Part 8A of the CLCA and the question that it must determine, without explaining the meaning of “objective element”, and “subjective element”.
The appellant’s reliance on Lucas v The Queen[6] in support of the contention that the Judge should not have gone into such detail is in my view misplaced. In Lucas the appellant complained in the context of a trial on a charge of attempted murder, during which the common law defence of insanity was raised, that the trial Judge did not explain the consequences of a verdict of not guilty by reason of insanity to the jury. The High Court rejected that argument observing that the jury should not be concerned with the consequences that may flow upon a verdict of guilty as charged or a verdict of not guilty on the ground of insanity, and added that it is generally undesirable that any reference be made to the possible consequences which may ensue upon any verdict. The Court did contemplate that, in special cases, it might be necessary for a trial Judge to refer to the consequences of a verdict.
[6] (1970) 120 CLR 171.
The law in most Australian jurisdictions has been substantially altered since Lucas was decided in 1970. In South Australia the common law defence of insanity has been replaced by the provisions of Part 8A of the CLCA. As will be clear from the foregoing discussion, it is my view that the procedures set out in Part 8A of the CLCA 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.
It is significant in this case that no complaint was made at trial regarding the content of the Judge’s preliminary directions, or his subsequent directions at the conclusion of the evidence. There has been no suggestion that what his Honour said was in any way inaccurate. The only complaint which has been made is that by giving such detailed directions the trial Judge created the potential to confuse the jury about its role.
For the reasons which I have given, I consider that 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.
In my view there is no substance in this ground of appeal.
Ground 1: That the verdict of the jury was unsafe and unsatisfactory
I turn now to the first ground of appeal which is the complaint that the finding of the jury that the objective elements were proved was unreasonable, unjust or unsafe.
In assessing this ground of appeal this Court must make its own independent assessment of the evidence in accordance with the approach enunciated by the High Court in M v The Queen.[7]
[7] (1994) 181 CLR 487.
In support of this ground of appeal, the appellant submits that there were a number of unsatisfactory features about the evidence of the eye witness to the alleged offence. In particular, the appellant complains that Ms Andrews’ evidence lacked both credibility and reliability in several material respects, and that her evidence was contradicted by other evidence at the trial. The appellant complains that the account given by Ms Andrews of the actual nature of the indecent touching changed at trial from earlier statements she had given both as to the manner of touching, the height of the offender and the extent of the indecent touching, including whether the victim was touched on one or both of her breasts.

It is correct that the prosecution case essentially relied on the evidence of Ms Andrews, the age and disability care student who was on duty at the time of the alleged offence. However, contrary to the appellant’s submission, I do not consider that there was anything implausible about her evidence. Ms Andrews gave a clear account of what happened, including the circumstances that led to the incident and to her attending to Mrs E. She was cross-examined extensively about all of the details in her observations. The answers she gave in cross-examination, which included both her observations at the time of the offending, her reasons for failing to report the offence immediately, and her reticence to make any complaint were understandable given her junior position in the nursing home and the bizarre nature of the appellant’s conduct. It is not unusual for a court to hear allegations of a sexual nature which, on their face, may seem implausible or bizarre. The plain fact is that these perceived flaws in Ms Andrews’ evidence were all explored in detail in the cross-examination. Furthermore, there was psychiatric evidence from Dr Raeside which, if accepted by the jury, gave some context to the apparently implausible and bizarre nature of the appellant’s conduct. Dr Raeside explained how a person suffering from bipolar affective disorder and experiencing a manic or hypomanic episode, may behave in a grandiose and disinhibited manner. He also explained how a person suffering from such a disorder may have no recollection or apparent recollection of the incident later:
Q.Also just pausing on the manic behaviour. Can it also be associated with lack of recollection. In other words, the person doesn't subsequently recall the way they were behaving during the particular manic episode.
A.That is possible. It is not the most frequent presentation. Just because someone is mentally unwell does not necessarily mean that they lose memory for that. In fact, it would be quite uncommon for someone to have no recollection at all for a period. However, various factors can affect their memory. If they are very unwell their thinking is so disordered that they don't actually lay down sequential memories for a period and, therefore, they may not have an accurate memory of that period of time and, in essence, they forget what happened because they just have bits of memory scattered in their memory. Often they might be taking drugs or alcohol, and alcohol itself can cause lack of memory if they take enough of it. The other can be a psychological factor, that is when a person is well they might feel ashamed of their behaviour, what they did in such a state, and psychological processes might cause them to say 'That couldn't have happened', 'That can't be right' and therefore believe it didn't happen or they bury it in their mind and they don't remember it because of that psychological shame they might experience for what they did.
HIS HONOUR
Q.Is that a common occurrence.
A.Certainly and people I have seen who come back down to a normal mood, they experience quite significant regret and shame of their behaviour when unwell due to the effect it has on other people but also on themselves because, obviously, it is hard to retain employment when they are like that, they often lose jobs or friendships and family relationships.
It is important that there was independent evidence besides the expert evidence of Dr Raeside that the appellant suffered from bipolar affective disorder. The jury were given an agreed statement of facts which included that the appellant had a history of diagnosis of bipolar affective disorder. In addition, the nursing director at the nursing home, Kerim Skelton, gave evidence of the strange and agitated behaviour of the appellant on 2 August 2011 when Mr Skelton attempted to interview the appellant about the alleged offending. Dr Raeside expressed the view that there was little doubt that the appellant suffered from bipolar affective disorder. His conclusion was:
A.… I have little doubt that on the relevant date he had bipolar disorder, a mental illness. The question as to how that was affecting him at that particular time is primarily dependent on whether one accepts the alleged conduct and the witnesses of it.
…
A.… If you took that out [the evidence of Clare Andrew] and this was not a hearing of what happened on that day, I would still be of the view that he had bipolar disorder and he would have had it during that period. The only question is how he was on that particular day is obviously informed by what people said on that day.
…
A.If I don't take that [the evidence on the prosecution case concerning his actions on that day] into account or don't have any assumptions about that then I feel I can confidently say that [the appellant] would have still had bipolar disorder as he had had it for several years but I would have no evidence to say what stage of bipolar disorder or whether he was affected by it at all on that particular day ignoring any observations of his alleged behaviour on that day.
All of the complaints made by the appellant on appeal in support of this ground were agitated thoroughly during the trial and were the subject of the closing addresses by both counsel. After concluding my own independent assessment of the evidence it is my view that the finding of the jury as to the objective elements was open on the evidence.
I would dismiss this ground of appeal.
Ground 3: That the trial Judge invited the jury to speculate
I turn now to the third ground of appeal which is the complaint that the trial Judge unreasonably speculated about the evidence when summing up to the jury.
The appellant pointed to three comments made by the trial Judge in different contexts during the summing up which the appellant now complains may have misled the jury into relying upon speculative arguments unsupported by evidence at trial. I shall deal with each of those comments in turn however before doing so it is necessary to understand the context in which those comments were made.
At the outset of the summing up the trial Judge told the jury that the single most contentious issue in the trial was whether the indecent touching as alleged by Ms Andrews had ever occurred. His Honour then highlighted the important aspects of the defence case, including three possible scenarios consistent with the appellant’s innocence put forward by the defence. After pointing out that the defence case was in essence that the jury could not be satisfied beyond reasonable doubt of the reliability and credibility of Ms Andrews, the trial Judge dealt with the first defence scenario which was that indecent touching may have occurred but Ms Andrews was mistaken as to the identity of the perpetrator. In relation to that issue, as indeed each of the other issues, the directions of the trial Judge were comprehensive. He discussed the prosecution evidence going to the issue of establishing the identity of the appellant, including the physical description given by Ms Andrews including long dark greasy hair. He referred to a photograph tendered in evidence which depicted the appellant with hair of that description and to the fact that the appellant was rostered and working on the day of the alleged offence. In the same context the trial Judge discussed Ms Andrews’ evidence that she had been told by the appellant some time earlier that he was an ex-police officer from Queensland. That conversation was the subject of a challenge by the defence who said that such a conversation could not have happened on the date nominated by Ms Andrews because it was established clearly that the appellant did not work on that day, or on the two days prior. Ms Andrews had given evidence that she had the conversation with him on the day before the alleged offence and in it the appellant had told her his name and the fact he was an ex-police officer from Queensland. There was no other person by the name of Stephen Angel working at the nursing home at the time of the offence. As part of the challenge mounted to Ms Andrews’ evidence the defence pointed out that the appellant was rostered on the day of the offence to work a late shift from 3.30pm until 10.00pm whereas Ms Andrews’ placement hours were between 7.00am and 3.00pm. Thus on the defence case, the conversation could never have happened. The trial Judge said:
Mr Lesses submitted while all of that is so, it is conceivable that the accused had arrived before his shift was due to start and before Ms Andrews had left. Another point you may want to consider, and it is one you probably thought of, is whether Ms Andrews made a mistake about having spoken to the excused (sic) on 27 July. You may have no trouble accepting Mr Tremaine’s submission that she would not have spoken in private on 27 July because he did not work on the Monday, Tuesday or Wednesday but could it be that he had spoken to her about being an ex-Queensland police officer on the day of the offence before it occurred. Could she be mistaken about the timing of that conversation? How else would she know that he was an ex-Queensland police officer?
It is evident from the context in which those remarks were made that all the trial Judge was doing at that stage was summarising the prosecution submission on that topic, as he had done earlier in relation to the defence position. In any event it was a proposition that was open on the evidence.
As to the second comment complained of, the issue of whether Ms Andrews was mistaken as to the nature of the indecent touching, his Honour said:
I turn briefly to the second possible defence scenario, namely whether Ms Andrews saw Mr Angel touch [Mrs E] but is genuinely mistaken about what she saw, in other words, she misinterpreted some sort of innocent touching.
As I said at the commencement of my summing up, the facts are for you to determine and anything I say about the facts is not binding on you but may I suggest that it is difficult to accept that Claire Andrews would be honestly mistaken about the nature of the acts she described the accused as doing.
This is not a case, for example, where the accused is said to have momentarily brushed up against [Mrs E] or innocently touched her while washing and cleaning her where there is some room for misinterpretation. Ms Andrews described the accused parting (sic) and rubbing [Mrs E’s] breast for 20 or 30 seconds, lifting her top and making the remark ‘That’s your boob’, and then lowering her top. You might well conclude that the nature of the description of the incident really leaves no room for a mistake on her part as to what occurred.
The appellant complains that the comment made in the last sentence of the paragraph quoted above effectively removed from the jury’s consideration the possibility, which was open on the evidence, that Ms Andrews was mistaken about the nature of the act she observed.
Given the nature of the allegations made by Ms Andrews, namely the prolonged rubbing or patting of the victim’s breasts, the lifting of her top, exposing her breasts and then stating “That’s your boob”, I consider that the comments made by the trial Judge were reasonably open. In any event, his Honour had already reminded the jury in that very context that the facts were for them to determine and that his comments about the facts were not binding on them. It is always open to a trial judge in a summing up to comment on the facts provided that those comments make clear that the facts are left for the jury to decide, and the judge’s comments are not binding on the jury, and the comments do not pre-empt the jury’s own consideration of the facts. I do not consider the trial Judge’s remarks in the summing up went beyond what was appropriate.
The third complaint was about the trial Judge’s treatment of an exhibit tendered at the hearing, being a bladder and bowel movement chart for Mrs E on the day of the offending. The appellant’s argument in connection with that document was that the absence of any entry on the date of the offending tended to contradict the evidence of Ms Andrews that the victim had soiled herself on the day of the offence. That submission was made in the context of the third defence scenario that Ms Andrews had simply fabricated her evidence about what she saw. His Honour stated:
The next matter that Mr Tremaine relied upon as an indicator that she was a dishonest witness and would fabricate her account is the bowel chart which is D7.
You will remember that in that chart there is no entry for the afternoon of 28 July 2011. He said that this suggested that there was no episode of incontinence on the part of [Mrs E] on that afternoon. Mr Lesses made a point there is simply no entry at all and it is not known, if you look at the chart, whether she had an episode of incontinence or not. In relation to that entry, I don’t know if you still have the copy of the document in front of you, Mr Tremaine made some point about there being a line in the box, a line drawn through the box, and he suggested that that was an entry made by the person who was required to fill out the box. Well, it is a matter for you to determine but that line may have nothing to do with an entry. It may be that the person who filled out the entry above it ‘BNO’ has simply underlined the letters ‘BNO’ perhaps to give emphasise to BNO, that the underlining appears in the box which is irrelevant to the question of whether [Mrs E] was incontinent or not that afternoon. In any event, whether the entry line drawn through the box was an entry deliberately made by the person who was required to fill out that box is of really no assistance to you because you don’t know whether the person has indicated there were bowel movements or not.
It is a matter for you, ladies and gentlemen, but I suggest the chart, Exhibit D7, doesn’t help you one way or the other. Mr Lesses made a point that it may be that the case that the accused was required to fill out the chart and due to the fact that he was in a hypomanic or manic state, if that be the fact, he was unable to complete the entry. There is simply no evidence as to whether the accused was required to fill out the chart or not because we don’t know who the other person was. So, as I say, you might think that the bowel chart, Exhibit D7, is really of no assistance to you in the circumstances of the matter, but that is a matter for you to determine.
That statement was made against the background of the nursing evidence on that topic which was that an entry should have been made for the date of the offence even if there was no incident of defecation, and that filling out the chart with a line through the box was not an acceptable entry.
All that the trial Judge did was point out that the document was, in the end, equivocal because of that nursing evidence and therefore not particularly helpful due to the unknown nature of the relevant entry. In my view those observations were helpful to the jury.
In summary, I do not consider that any of the impugned comments of the trial Judge went beyond legitimate comment on the state of the evidence. Moreover, his remarks were comprehensive and in my view would have been of considerable assistance to the jury in assessing all of the issues which arose in respect of this unusual trial.
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 A
Before 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 B
First issue: Objective elements
The jury hears evidence, submissions from counsel and a summing up from the judge on the issue of objective elements

If jury finds that the objective elements have not been established beyond reasonable doubt the accused is found not guilty of the offence and discharged

If 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

Second issue: Mental competence
The jury hears evidence, submissions from counsel and a 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 was mentally incompetent the accused is found not guilty and declared by the judge to be liable to supervision

If the jury finds that it has been established on the balance of probabilities that the accused was mentally competent the judge records a finding that the presumption of mental competence has not been displaced and directs that a trial of the subjective elements of offence take place

Third issue: Subjective elements
The jury hears evidence, submissions from counsel and a summing up from the judge on the issue of subjective elements

If jury finds that the subjective objective elements have not been established beyond reasonable doubt the accused is found not guilty of the offence and discharged.

If jury finds that the subjective elements have been established beyond reasonable doubt the accused is found guilty of the offence.