R v Angel

Case [2014] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ANGEL

[2014] SASCFC 75

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Peek)

18 July 2014

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES

Appeal against declaration that defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA). Defendant charged with aggravated indecent assault. The trial commenced pursuant to section 269F of the Act as a trial concerning the mental competence of the defendant. The jury was empanelled, the defendant arraigned, and a plea of not guilty taken. The Judge then addressed the jury about the procedures to be followed as to the issues surrounding the mental competence of the defendant to commit the offence. The trial as to the defendant’s mental competence then proceeded. The prosecution led evidence and closed its case and the defendant led evidence and closed his case. The Judge then raised with counsel the suggestion that it may be “appropriate to deal with the objective elements first.” Apparently the Judge raised the suggestion as he considered that the jury had before them all evidence relevant to all issues and he could see no good reason why the jury should not determine all issues in those circumstances. The prosecutor submitted that, with proper separation of issues and with separate sets of directions, the course proposed by the Judge could be followed. Defence counsel, having taken instructions from his client, advised that the defendant opposed the course suggested by the Judge. The jury returned unanimous verdicts that the objective elements of the offence were established beyond reasonable doubt and that the defendant was mentally incompetent to commit the offence.

Whether Part 8A of the Criminal Law Consolidation Act 1935 (SA) requires two separate trials. Whether the Judge erred by not separating the trial on the defendant’s mental competence from the trial on the objective elements of the offence. Whether the Judge’s error was a fundamental error giving rise to a miscarriage of justice.

Held per Gray J allowing the appeal:

1. Part 8A of the Criminal Law Consolidation Act 1935 (SA) requires two separate trials on mental competence and the objective elements of the offence.

2.  The Judge erred by failing to hold separate trials on mental competence and the objective elements of the offence. 

3.  The Judge’s error was a fundamental error giving rise to a miscarriage of justice.

4.  Both jury verdicts and the Judge’s declaration and consequential orders set aside.  Retrial ordered.

Held per Peek J (David J agreeing) allowing the appeal:

1. The inquiry as to mental competence was not separated from the inquiry as to the objective elements as required by Part 8A of the Act. Neither the Judge’s directions nor summing up could endow on proceedings the required…

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R v Angel [2014] SASCFC 75
Case
[2014] SASCFC 75
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Gray, David and Peek JJ, heard an appeal by Mr Angel. Mr Angel had been found not guilty of aggravated indecent assault on the grounds of mental incompetence. The trial involved two key findings: first, that the objective elements of the offence were proven beyond reasonable doubt, and second, that Mr Angel was mentally incompetent to commit the offence on the balance of probabilities. Mr Angel’s appeal was specifically against the finding that the objective elements of the offence were established.

The central legal issues before the court concerned the admissibility of expert evidence regarding Mr Angel's mental state and the proper procedure for trials involving mental competence and the objective elements of an offence. Specifically, the court had to determine whether expert evidence of bipolar disorder could be admitted if it relied on the assumed truth of a witness's account of Mr Angel's behaviour, and how such "intermediate facts" should be treated by the fact-finder. Furthermore, the court considered the scope of its appellate powers under section 269Y of the Criminal Law Consolidation Act 1935, particularly in relation to setting aside findings not directly challenged in the grounds of appeal.

The court reasoned that expert evidence of Mr Angel's bipolar disorder on the relevant date could only be admissible if it was based on material independent of the assumed truth of Ms Andrews' evidence. If such independent evidence were admitted, the finding of bipolar disorder would constitute an intermediate fact that the tribunal of fact could only act upon if proven beyond reasonable doubt, without reference to Ms Andrews' allegations. The court also noted that section 269F of the Act contemplates separate trials for mental competence and objective elements, with the trial judge having a discretion as to the order of these trials.

Allowing the appeal, the court set aside both the finding that the objective elements of the offence were established and the finding of mental incompetence. The court ordered that a retrial be held, with the trial judge to exercise discretion regarding the order of the separate trials for mental competence and objective elements.

Orders

Orders of the court

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Background

Background to the litigation

On a trial of the objective elements in the present case, it could only be proven that Mr Angel had bipolar disorder on 28 July 2011 on the basis of material which did not in any way include an assumption that Ms Andrews’ evidence as to Mr Angel’s behaviour on that day was true. In other words, the only way that expert evidence that Mr Angel suffered from bipolar disorder on 28 July 2011 could be admissible on the trial of the objective elements would be if a psychiatrist were able to give unequivocal evidence that Mr Angel was then suffering from bipolar disorder solely on the basis of material other than the statements or evidence of Ms Andrews.Proof of intermediate facts Further, even if an expert were able to give unequivocal opinion evidence that Mr Angel was suffering from bipolar disorder on 28 July 2011 solely on the basis of material other than the statements or evidence of Ms Andrews, the alleged fact that Mr Angel was so suffering would here be “an intermediate fact” that could only be acted upon by the tribunal of fact if they found it to be proven beyond reasonable doubt (and, of course, without reference to the allegations of Ms Andrews).[25] [25] See generally Shepherd v The Queen (1990) 170 CLR 573; R v Merritt [1999] NSWCCA 29; Velveski v The Queen (2002) 76 ALJR 402; and R v Tartaglia (2011) 110 SASR 378, 381-387 (Sulan J), with whom I concurred on this point at 418.Orders As noted at the outset, Mr Angel appeals pursuant to s 269Y(3) of the Act and seeks an order that the “key decision”[26] that the objective elements are established should be set aside; there is no ground of appeal that the “key decision” as to mental incompetence should be set aside.[26] Section 269Y(4) of the Act. The powers of the Court pursuant to s 269Y(5) of the Act are very wide. I consider that, in the circumstances of this case, they extend to setting aside both the key findings as to the objective elements and as to mental competence, even though the grounds of appeal are restricted to the first matter and Mr Angel might personally prefer that the orders be restricted to that matter. I would make the following orders:1. Allow the appeal.2. Set aside both the key findings that the objective elements have been established and that Mr Angel was mentally incompetent.3. That a retrial be held.

Evidence

Evidence Before The Court

Section 269F provides:269F—What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.A—Trial of defendant's mental competence(1) The court—(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.(2) The power to require an examination and report under subsection (1)(b) may be exercised—(a) on the application of the prosecution or the defence; or(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.(3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—(a) if so—must record a finding to that effect;(b)if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.(5) The court may, if the prosecution and the defence agree—(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and(b)record a finding that the defendant was mentally incompetent to commit the offence.B—Trial of objective elements of offence(1) If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established. (3) If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant. (4) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.[Emphasis added.] Section 269FA(3) contemplates two separate trials. The section requires the court, at the conclusion of the trial of the defendant’s mental competence, to decide whether it has been established on the balance of probabilities that, at the relevant time, the defendant was mentally incompetent and, if that finding is made, it must record a finding to that effect. Under section 269FB(1), once that finding has been recorded, the court is obliged to hear evidence and representations relevant to the question of whether the court should find that the objective elements of the offence are established.

Decision

Reasons for decision

GRAY J PEEK J
On the retrial, in accordance with section 269E of the Criminal Law Consolidation Act, the question of the defendant’s mental competence to commit the offence must be separated from the remainder of the trial. The trial Judge will then have to exercise his or her discretion in determining whether to proceed first with the trial of the objective elements of the offence or whether to proceed first with the trial of the mental competence of the defendant. In my view, it is inappropriate to express any view in the present matter as to which should proceed first. In this respect, the Judge has an unfettered discretion. Conclusion I would allow the appeal. I would set aside the key findings that the objective elements have been established and that the defendant was mentally incompetent. I would order that a retrial be held. DAVID J: I would allow the appeal. I agree with the orders of Peek J. Appeal pursuant to s 269Y(3), Criminal Law Consolidation Act 1935.Introduction Mr Angel was found not guilty of aggravated indecent assault on the ground of mental incompetence on the following Information:Statement of OffenceAggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceStephen Paul Angel on the 28th day of July 2011 at Oakden, indecently assaulted [Mrs E].It is further alleged that Stephen Paul Angel committed the offence knowing that [Mrs E] was over the age of 60 yearsIt is further alleged 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. The trial was conducted under Part 8A of the Criminal Law Consolidation Act 1935 (the Act). A jury found it proven beyond reasonable doubt that Mr Angel had committed the objective elements of aggravated indecent assault (the “objective elements” key finding). Later, the same jury found on the balance of probabilities that, at the time of the alleged offence, Mr Angel was mentally incompetent to commit the offence (the “mental incompetence” key finding). The stated victim, Mrs E, was born on 19 February 1912 and was 99 years of age as at 28 July 2011. She then suffered from vascular dementia and was a patient in the dementia ward of the Makk and McLeay Nursing Home in Oakden (the Nursing Home) where she had lived and been cared for since 1997. She was not able to make a statement about the alleged offence (the subject incident) and died of end stage dementia on 18 May 2012 at the age of 100.[6] [6] Dr Patrick Flynn, psychiatrist, gave evidence that “Mrs E was a resident at the Oaks from June 1997 due to vascular dementia. ... Her vascular dementia illness developed from a disruption in the blood supply to her brain over 10 years ago. It caused a progression of cognitive decline and she had extreme deficits in memory, awareness and executive brain functioning, for at least the past seven years. She was cared for in this facility because of her behavioural problems which included incessant yelling, agitation, disrobing and aggression.” Dr Flynn also said that “on the 28th July 2011 Mrs E was affected by vascular dementia. Because of this mental and intellectual condition she was incapable of freely and voluntarily agreeing to have her breasts touched. She was unable to understand the nature of this activity. On the 1st August 2011 Mrs E had advanced cognitive impairment due to her dementia. Her memory was very poor and she would not have been able to recall any events from her recent past. She would not have been able to give court evidence” T48-49.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, PEEK J

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