R v Angel

[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 separation where the two inquiries had already proceeded to an advanced stage in an unseparated state.

2.  The proviso cannot apply in circumstances where the legislated safeguard of separate inquiries as to mental competence and the objective elements was breached.

3.  Both key findings that the objective elements have been established and that the appellant was mentally incompetent are set aside and a retrial ordered. 

Criminal Law Consolidation Act 1935 (SA) s 56, s 269, s 269B, s 269C, s 269D, s 269E, s 269F, s 269G, s 269Q, s 269R, s 269T and s 269Y, referred to.
Lee v The Queen [2014] HCA 20; Perry v The Queen (1982) 150 CLR 580, discussed.
Lee v The Queen [2013] NSWCCA 68; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v AAM; ex parte A-G (Qld) [2010] QCA 305; R v Merritt [1999] NSWCCA 29; R v Ridings [2006] SASC 368; R v Starrett (2002) 82 SASR 115; R v Thompson (1988-1989) 169 CLR 1; Shepard v The Queen (1990) 170 CLR 573; Sutton v The Queen (1984) 152 CLR 528; Velveski v The Queen (2002) 76 ALJR 402; R v Tartaglia (2011) 110 SASR 378; Wilde v The Queen (1988) 164 CLR 365, considered.

R v ANGEL
[2014] SASCFC 75

Court of Criminal Appeal:       Gray, David and Peek JJ

GRAY J.

1. This is an appeal against a declaration that the defendant and appellant, Stephen Paul Angel, is liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA).

   Introduction

2. The defendant was charged with the offence of aggravated indecent assault, contrary to section 56 of the Criminal Law Consolidation Act. A trial was conducted before Judge and jury in January of 2014. On 30 January 2014, the jury returned a unanimous verdict that the objective elements of the offence were established beyond reasonable doubt. The trial continued and on 31 January 2014 the jury returned a unanimous verdict that the defendant was mentally incompetent to commit the offence. As a consequence, a verdict of not guilty was returned. Pursuant to Part 8A of the Criminal Law Consolidation Act, the Judge declared that the defendant was liable to supervision and made consequential orders that reports be prepared pursuant to sections 269Q, 269R and 269T of the Act.

3. The trial proceeding followed an unusual and, in the submission of the defendant on the appeal, a fundamentally irregular course. On 22 January 2014, the trial commenced pursuant to section 269F of the Criminal Law Consolidation 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 Judge handed to the jury a written memorandum dealing with the topic of mental incompetence and, in particular, section 269 of the Criminal Law Consolidation Act.  The Judge concluded:

   So, ladies and gentlemen, that is an outline of the law governing mental incompetence.  And, as I have said, that is the issue, the sole issue, you have to determine in these proceedings.

   The prosecution then opened the case, informing the jury that:

   The main part of the prosecution case will consist of the calling of the three psychiatrists.

   ...

   Finally, the three psychiatrists themselves will be called: doctors Raeside, Jennings and Tomasic, who will give you their evidence about how Mr Angel performed during interview. They will give you their opinion about his suffering from bipolar disorder and they will give you their opinion that he was incompetent to commit the offence at the time it occurred.

   Defence counsel then addressed the jury in the following terms:

   As you heard previously from his Honour, the sole issue that you are determining at this stage is whether the prosecution has established that Mr Angel was mentally incompetent, as it has been described, to commit the alleged offence. Specifically covering the matters that you are dealing with, you have the notes from his Honour and I won't trawl through them, but what I do say to you in relation to matters in issue, it is in issue that from the defence perspective from Mr Angel that he was suffering what is called a mental impairment at the relevant time, that is the alleged offence. That is a matter in issue.

4. 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:

   Can I indicate I spoke at lunchtime with Mr Angel. He has instructed me that he would like this jury to deal with mental incompetence or mental competence and nothing else. I simply put that. He raised concerns with them dealing with other matters. He says he doesn't object to them considering objective facts in mental competence but he has asked they deal only with that aspect of the matter.

   The Judge replied:

   I have considered that issue. I am not persuaded that will be an appropriate course. In my view this jury should determine all issues. So, his application for separate juries is rejected.

   The Statutory Scheme

5. Part 8A of the Criminal Law Consolidation Act, addressing mental impairment, came into effect on 2 March 1996.  These provisions provide a code for dealing with issues of mental competence to commit an offence and mental fitness to stand trial.  The provisions replaced the common law concepts of insanity and unfitness to stand trial.  It is clear, however, that the legislation has borrowed heavily from common law principles. 

6. The procedure which Part 8A provides for dealing with these issues represents a significant departure from the common law procedure, whereby in a case where insanity was raised, all issues were dealt with at the same trial. The new procedure under Part 8A for dealing with mental competence to commit an offence identifies three issues which may call for determination, namely the objective elements of the offence, the subjective elements of the offence and the defendant’s mental competence to commit the offence. The procedures were discussed by this Court in Question of Law Reserved (No 1 of 1997).[1]Duggan J, speaking for the Court, reviewed the new provisions and observed:[2]

   The issue of mental competence may be raised by the defendant or the court may direct an investigation into the issue on its own initiative or on application by the prosecution (s 269E(1)). Once raised it must be separated from the remainder of the trial. The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the accused (s 269E(2)).

   If the trial judge decides to proceed first with the trial of the accused's mental competence to commit the offence the procedure in s 269F must be followed. The court must hear "relevant evidence and representations". Then, if the court is not satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence, it must "proceed with the trial of the offence in the normal way" (s 269FA(3)). If the court is satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence, it must record a finding to that effect (s 269FA(4)). In the latter event the court must then hear evidence and representations relevant to the question whether it should find that the objective elements of the offence are established (s 269FB(l)). If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt the court must record a finding to that effect (s 269FB(2)) and find the accused not guilty of the offence but declare him or her to be liable to supervision under this part of the Act. If the objective elements are not established the court must find the accused not guilty of the offence and discharge the accused (s 269FB(3)).

   If, on the other hand, the trial judge decides to proceed first with the trial of the objective elements of the offence it must first hear evidence and representations on that issue and, if satisfied that the objective elements are established beyond reasonable doubt, it must record a finding to that effect (s 269GA(2)). If not so satisfied it must record a finding that the accused is not guilty of the offence and discharge the accused.

   If the court records a finding that the objective elements are satisfied it must then hear evidence on the question of the accused's mental competence to commit the offence. If satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence it must record a finding that the accused is not guilty of the offence and declare the accused to be liable to supervision under this part of the Act (s 269GB(3)). If the court is not so satisfied it must proceed to consider whether the evidence establishes the subjective elements of the offence beyond reasonable doubt. If the subjective elements are established beyond reasonable doubt the court must record a finding of guilty of the offence "and proceed to deal with the accused as if a finding of guilt had been made in the normal way". If not so satisfied it must record a finding that the accused is not guilty of the offence (s 269GB(4)).

   Duggan J then set out a helpful flow chart.[3]

   [1]    Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251.

   [2]    Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251, 253-4.

   [3]    Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251, 254-5.

7. Against this background, it is convenient to turn to those provisions in Part 8A of particular relevance to the present appeal. Section 269E provides:

   269E—Reservation of question of mental competence

   (1)     If, on the trial of a person for an offence—

   (a)      the defendant raises a defence of mental incompetence; or

   (b) the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice, the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial.

   (2)     The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant.

   (3)     If, at the preliminary examination of a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial.

   [Emphasis added.]

8. To my mind, this section contemplates two separate trials. Section 269E(2) provides the trial Judge with a discretion to proceed first with the trial of the objective elements or with the trial of mental competence. Section 269E(1)(b) specifically directs that the question of the defendant’s mental competence to commit the offence must be separated from the remainder of the trial.

9. 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.]

10. 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.

11. Section 269G addresses what is to happen if the trial Judge decides to proceed first with the trial of the objective elements of the offence. The provision recognises that the order in which the two trials take place differs but otherwise relevantly mirrors section 269F as to the procedures to be followed.

12. In my view, Part 8A of the Criminal Law Consolidation Act requires separate trials on the issues of mental competence and the objective elements of the offence.  It was not open to the trial Judge in the present proceeding to merge the two trials into one.  It was not open to the trial Judge to commence with a trial on mental competence and then, part-way through that trial, convert it into a trial on both issues.  The taking of separate verdicts did not legitimise the process undertaken.

    Fundamental Error

13. It follows that the defendant did not have a trial on the issue of mental competence according to law.  The procedure followed was irregular.  It also follows that the defendant did not have a trial on the issue of the objective elements according to law.  The procedure followed in this respect was also irregular.

14. The significance of a fundamental error was considered by the High Court in Wilde:[4]

    However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J. in Quartermaine v. The Queen:

    "Ordinarily, when there has been a misdirection of law, the proviso to s. 689 [(Criminal Code (W.A.)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law'''. The Court of Criminal Appeal was right in taking that view of the law ...."

    This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (the phrase of Barwick C.J. in Driscoll v. The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper.

    [Emphasis added. Footnotes omitted.]

    [4]    Wilde v The Queen (1988) 164 CLR 365, 372.

1. These principles were applied in this Court by Doyle CJ in Starrett:[5]

   Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a "radical or fundamental error", which may "go either to the form of the trial or the manner in which it was conducted": Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.

   [5]    R v Starrett (2002) 82 SASR 115, [32].

2. The irregularity is substantial and gives rise to a miscarriage of justice.  I consider the irregularity to be a fundamental flaw.  In these circumstances, both jury verdicts should be set aside, as well as the declaration made by the trial Judge and his consequential orders.  The proceedings should be remitted for retrial. 

3. 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

4. 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.

5. DAVID J:              I would allow the appeal.  I agree with the orders of Peek J.

6. PEEK J.    Appeal pursuant to s 269Y(3), Criminal Law Consolidation Act 1935.

   Introduction

7. Mr Angel was found not guilty of aggravated indecent assault on the ground of mental incompetence on the following Information:

   Statement of Offence

   Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Stephen Paul Angel on the 28^th 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 years

   It 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.

8. 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).

9. 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 28^th 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 1^st 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. 

10. Mr Angel had been a Queensland police officer until medically discharged in 2005 due to his mental health.  He had commenced employment as a carer at the Nursing Home at Oakden sometime during March 2011, shortly after completing a Certificate III in Aged Care.

    The evidence of Ms Andrews – the subject incident

11. Ms Andrews was the sole witness to the subject incident.  She gave evidence that in 2011 she undertook a four week experience placement at the Nursing Home as a requirement for the obtaining of a Certificate III in Aged Care and Disability Care.  In her first week she could only observe staff activities and was not allowed to participate in any activities until her second week.

12. Ms Andrews stated that on 28 July 2011, the third day of her first week, she was walking past the TV room and became aware from the odour that Mrs E, who was sitting in the room in a “princess chair”,[7] had soiled herself.  She and Mr Angel then used the chair to move her from the TV room to the bathroom where all three waited for a nurse to attend.  She stated that whilst waiting, Mr Angel was “making comments about how long it was taking for the nurse to come” and that that she observed him pat and rub Mrs E’s breast in a streaking motion “like you’d rub somebody’s back”.  He then took hold of the bottom of Mrs E’s top at the waist and lifted it up at an angle to expose one of her breasts and said “That’s your boob”.[8]  Ms Andrews stated that Mr Angel then put Mrs E’s top down and was rambling about “cops and lawyers” and was “mumbling”; she could not make any sense of what he was saying.  She stated that she interjected to try to make light of the situation and distract him from what had just happened.  She stated that she did not see any need for Mr Angel to pat or stroke Mrs E’s breast or to lift her top thereby exposing one of her breasts for the purpose of attending to her.

    [7]    A chair designed for immobile people.

    [8]    T25-26.  Ms Andrews was not sure which of Mrs E’s breasts were exposed: T26.

13. The nurse eventually arrived and changed Mrs E’s incontinence pad.  Ms Andrews did not then make any complaint to the nurse about Mr Angel’s conduct and she did not report the incident to a supervisor at the Nursing Home until the following day, 1 August 2013; she later made a statement about it to police on 4 August 2013.  Her evidence was subjected to close scrutiny in cross-examination, a matter that will be returned to later.

    The appeal to this Court

14. Mr Angel appeals to this Court pursuant to s 269Y(3) of the Act and seeks an order that the “key decision”[9] that the objective elements are established should be set aside.  The grounds of appeal are as follows:

    [9] Section 269Y(4) of the Act.

    1.The verdict that the objective elements of the offence are established should be set aside as it was unreasonable, or unsafe or unjust or unsatisfactory in all the circumstances.  [This verdict was a “key decision” (CLCA s.269Y(4)(c)).]

    1.1     The jury should have entertained a doubt about guilt (objective elements being established) because the evidence of the only witness to the alleged incident [Ms Andrews] was not credible or reliable – her version of the alleged indecent touching changed from her first report to her evidence on the trial (T33, L29-33 & T39, L34-38; T26, L5-9 & T46, L3-4; T33, L1-6 & T43, L4-11, T44 L1-16); she disputed within less than a minute after having given the evidence, that she had just stated in evidence a version differing from the facts of her precise allegation (T33, L1-16) – a jury could not be satisfied of the establishment of the objective elements beyond a reasonable doubt on this evidence.

    1.2     Ms Andrews’ memory of the occasion of the alleged incident was not reliable, as shown by her change of versions about speaking with the appellant before the indecent touching (T32, L17-32), and the version of the indecent touching given by her in a proofing session (T43, L1-11 & T44, L1-16)

    1.3     Andrews’ comments that “I…was not sure of what I had witnessed” [incident report] (T40), and “I was new…I needed to be sure” [police statement] (T41), suggests uncertainty in her recall of the alleged incident which she did not immediately report to her superiors

    1.4     The unlikelihood of the indecent touching having occurred, involving a former police officer and family man who was keen to pursue a career in aged care, indecently assaulting a 99 years old dementia patient who had just soiled herself, and the appellant doing the act in the presence of a worker while awaiting the arrival at any time of a nurse; and involving the lifting of the patient’s top while she was seated in a chair possibly secured by a seat belt (T35-T36, L3-11)

    2.The (objective elements) verdict should be set aside as unsafe or unsatisfactory, as no dock identification of the appellant as the offender was made on the trial.  The only witness to the alleged indecent assault [Ms Andrews] did not, when giving evidence, identify the appellant in Court as the person who she saw indecently assault the elderly dementia patient.  Andrews said in evidence that she had never worked previously with “him” (“Mr Angel”) (T27)

    3.The (objective elements) verdict should be set aside because it was unfair or unreasonable in all the circumstances for the same jury to have dealt with issues about the appellant’s mental competence to commit the offence and the objective elements of the offence.  Separate juries should have respectively dealt with each issue.

    4.The (objective elements) verdict should be set aside because the trial commenced on the basis of proceeding first with a trial of the appellant’s mental competence to commit the offence (T9, L26-38), but during its course became firstly a trial of the objective elements of the offence and then a trial of mental competence.  It was confusing for the jury to change its focus on different issues during the trial, and to differentiate between the standards of proof required for each issue when evidence was given and when considering the two separate verdicts.  It is unfair and unjust for the (objective elements) verdict to stand in all the circumstances.

15. Grounds 1 and 2 of appeal raise largely factual issues.  Grounds 3 and 4 of appeal raise important, and difficult, questions which have not been specifically dealt with by this Court before and it is convenient to first deal with them.

    Mental fitness to stand trial

    On 20 January 2014, shortly before the trial commenced on 22 January, Mr Angel was examined by three psychiatrists, Dr Raeside, Dr Jennings and Dr Tomasic (sometimes to be referred to as the three psychiatrists).  Each was of the opinion that Mr Angel was not mentally unfit to stand trial.  Those opinions were not in dispute, and fitness to stand trial was not an issue at trial or on appeal.

    The course of the trial

    As to the objective elements, Mr Angel strongly denied that the alleged incident ever occurred when interviewed by police on 1 September 2011; he has maintained that denial at all times, including in his evidence at trial.

    As to the issue of mental incompetence, the prosecution position, based on the opinion of the three psychiatrists, was that Mr Angel was mentally incompetent at the relevant time.  Mr Angel has strongly contested that proposition but has not adduced any medical evidence.  He has not articulated any basis upon which he asserts that the three psychiatrists are incorrect in their opinions other than that the evidence of Ms Andrews is false and therefore, to the extent that the experts have proceeded on the basis of its truth, they have erred.  

    The initial directions of the Judge to the jury

    The Judge initially decided that the trial of the issue of mental incompetence would be held first.  After a jury was empanelled, his Honour gave preliminary directions concerning mental incompetence and the nature of the case generally, including the following:

    In the present case, the issue of whether the accused was mentally competent to commit the offence with which he is charged has been raised and it is that issue that you are called upon to determine.  I should explain that, if you find that the accused was mentally competent to commit the offence, then he will be tried in due course in the normal way.  In other words, the prosecution will then be called upon to prove - if it can - that he is guilty of the charged offence.  It would be for me to determine, for reasons which I need not go into at the moment, whether a trial conducted in the normal way should be tried by you or by another jury specially empanelled for that purpose.            (Emphasis added)

16. The Judge then directed the jury at some length as to procedures under the Act.  His Honour later stated:

    Ladies and gentlemen, the procedures that I have sought to explain are somewhat complex.  But I do not want you to feel overwhelmed by them.  For present purposes, you should understand that the sole issue that you have to determine is whether or not the accused was mentally incompetent to commit the charged offence.  Whether you are required to determine any of the other issues that I have briefly discussed is a matter that I will give you further directions on later.  I repeat, the sole issue you have to determine is whether the accused was mentally incompetent to commit the charged offence.  … You need focus on only that issue and, as I’ve said, if there is a need for you to consider any other issues I will give you directions about that in due course.            (Emphasis added)

17. The Judge then proceeded to direct the jury at some length as to mental incompetence and associated issues, as well as distributing copies of a set of notes (five pages) on those topics.  Counsel for the prosecution then opened to the jury on the prosecution case that Mr Angel had in fact committed the objective elements when he was mentally incompetent.  He then proceeded to call the prosecution evidence.

    The evidence of Ms Andrews

18. Ms Andrews’ evidence is sufficiently recited above for present purposes.

    The evidence of the three psychiatrists

19. The three psychiatrists each gave evidence that Mr Angel was suffering a bipolar episode at the time of the alleged offence, and in particular, that he would not have appreciated that the conduct said to constitute the alleged offence was wrong.  Each agreed that a person suffering from bipolar disorder can function in an apparently normal way between episodes.

20. Dr Raeside, a medical practitioner specialising in forensic psychiatry, gave evidence that Mr Angel suffered “chronic bipolar disorder” and that he had been so diagnosed since 2003.  He said that symptoms include elevated mood which may include loss of inhibition and that a sufferer may do very silly or bizarre things they regret later, giving an example of running naked down a street.  He said that there are also depressive symptoms which “would be the same as other illness, which is not sleeping, not eating, losing weight, suicidal, unable to think clearly ...”.

21. Dr Raeside said that his assessment turned on four ‘strands of evidence’.  The first strand was the way in which Mr Angel presented at interview on 15 January 2013.  He considered that although Mr Angel himself did not think that he had any mental illness, or that he was mentally unwell, his overall presentation was consistent with him being in a hypomanic state.  In cross-examination, Dr Raeside agreed that the symptoms he had observed could be consistent with other types of mental illness but maintained that, taking them in combination with Mr Angel’s history, it was more likely that the appropriate diagnosis was bipolar disorder rather than a different illness manifesting some of the same symptoms.

22. The second strand was Mr Angel’s history and pattern of mental illness and the nature of his associated symptoms.  Dr Raeside said that Mr Angel told him of an incident in 2004 that had led to his admission to a closed psychiatric ward and a previous diagnosis of bipolar disorder for which he was prescribed medication.  The mental health database to which Dr Raeside had access reflected that Mr Angel had been hospitalised a number of times in Queensland.  Since then, he had come to South Australia twice, but not since 2009.  On one of those occasions, he was admitted to the Royal Adelaide Hospital after stabbing himself in the neck and chest and requiring emergency mental health treatment; he was considered to be in a manic phase of bipolar disorder at the time.  Dr Raeside noted that “it was considered initially that the self-inflicted wound was part of a depressive phase of his bipolar disorder but then he went into a manic phase as well and required detention under the Mental Health Act for his safety”.  Dr Raeside said that Mr Angel was prescribed antipsychotic medication which he was unwilling to take; although he was not hospitalised, there were concerns that he relapsed in 2010 when he was abusing alcohol and was unwilling to engage with the Mental Health Service.

23. The third strand was the nature of the alleged offending behaviour before the Court.  Dr Raeside was asked how consistent was the description of that behaviour, as given by Ms Andrew in the police report, with the diagnosis of bipolar disorder.  He said: 

    One of the features or someone who is either hypomanic or manic, that is in the elevated phase of bipolar disorder, is that they may become disinhibited in their behaviour, in other words they might do things that they ordinarily wouldn’t do.  In some case[s] that can be [sexual] disinhibition either in terms of being flirtatious or sexual talk that they might have or, as I said before, they might run naked down the street.  So if someone acts in a sexual way, that doesn’t mean they’re suffering from bipolar disorder.  So the nature of the alleged offending would be consistent with someone who is in a hypomanic or manic phase bipolar disorder but certainly if someone acted that way it doesn’t necessarily mean they are suffering from bipolar disorder.  So it’s consistent but if someone acts that way it doesn’t mean they actually have the condition.

24. The fourth strand was the content of the answers, and the manner in which they were given, during the police interview on 3 September 2013.  Dr Raeside emphasised that “the history is the more important thing” and noted that some of the behaviours had little relevance; just because a person is suffering from a mental condition does not mean that they are unwell at any particular moment.  However, he did consider that “tangential thinking” (a symptom of bipolar disorder involving a sufferer displaying difficulty staying on point during conversation and giving “overly too much detail that’s inappropriate to the content”) was displayed, albeit in neither severe nor extreme form.

25. On the basis of those four “strands of evidence”, Dr Raeside formed the opinion that Mr Angel was suffering from the symptoms of bipolar on the occasion of the subject incident.  The following passage is important:

    QAnd do you also adhere to the view that he was suffering from the symptoms of that disorder either having been a hypomanic or manic episode on the day of the alleged offence?

    AI do.  My reservation is that it’s really only based on the witness statement of how he was at the time and I’m not casting any question about whether that’s accurate or not, that’s for others to determine.  If one accepts the description that was given of him that would be consistent with him being in a hypomanic state at that time, but that’s the only bit of information, as well as the alleged behaviour itself, that I’m basing that opinion on as well as the history of him obviously having episodes before, but there’s, as I said, no account of him on that day other than the witness and the police interview doesn’t show him as being severely unwell two days later.

    QAnd those opinions that you’ve just outlined for the jury, are you expressing those on the legal standard of the balance of probabilities?

    AYes, an important aspect in the assessments I do is that in legal terms it’s not a matter of whether I’m absolutely certain or totally convinced or have serious doubts.  The legal issue as far as that would go is I would say it’s more likely than not that he was mentally ill at the time.    (Emphasis added)

1. It was also Dr Raeside’s opinion that the symptoms of bipolar disorder fell within the legal definition of a “mental illness” in that it fulfilled the criteria under s 296C(b), but not s 296C(a) nor s 296C(c), of the Act.  This was so because, while there was no indication that Mr Angel’s symptoms would have prevented him from being able to know the nature and quality of what he was doing or that he could not control himself, his hypomania was such that: 

   ...he was unable to reason clearly about the wrongfulness of his actions.  The reason why I came to that conclusion was that there seemed to be no apparent motive as to why he would have acted in that particular way as described by the witness, his rambling, his unusual manner, the unusual comments he made would all suggest that his thinking was impaired at the time about that and the fact that he was to engage in that behaviour with someone standing there watching would also suggest that he did not think what he was doing was wrong.  Whether what he did was wrong or not is obviously for the court to decide, but on the assumption that it appears that he did something wrong then my view would be that his mental illness was that was preventing him from knowing it was wrong, what he was doing, and that’s why I offered the opinion that he was mentally incompetent at the time.

   ... If Mr Angel was totally unable to control his behaviour one would expect him to be running around the building doing similar behaviour to everybody, that he could not be restrained, people would have to drag him away from what he was doing and clearly there’s no indication that that occurred. 

   ... my view, if you look at those three limbs, is that he met the criteria for the second one about his ability to reason about the wrongfulness of his actions but there’s no indication that he didn’t know what he was doing or that he couldn’t control himself. 

2. Dr Jennings and Dr Tomasic gave essentially similar evidence, and came to essentially the same conclusion, as Dr Raeside.

   The evidence of Mr Angel

3. Mr Angel stated that he worked a 12 hour shift in the dementia ward of the Nursing Home on 28 July 2011, commencing between 11:30am or 12 noon and ending at around 7:30pm in the evening.  He specifically denied touching either of Mrs E’s breasts, rubbing, patting or stroking her breast area, lifting up her top to expose her breasts, or commenting “that’s your boob”.

4. He said that during the shift, he fed patients and completed other duties including putting away linen; he described the shift as “an unremarkable one”.  He stated that he did not recall having any interaction with Mrs E or becoming aware that Mrs E had soiled herself and needed another incontinence pad.  He stated that it would normally take two people (a carer and a nurse) to change an incontinence pad on a patient such as Mrs E but that, to his memory, he had never helped to change hers.

5. Mr Angel accepted that a diagnosis that he was suffering from bipolar disorder had been made and supported by Drs Raeside, Jennings, and Tomasic, but he maintained that that diagnosis was incorrect.  However, he conceded that he had experienced two depressive episodes.  He gave evidence that on one occasion he was depressed about his career and his marriage and that he slashed his forearm with a stubby bottle, leaving a gash, 4cm long and 1cm deep.  He also gave evidence that he had taken around eight antidepressant tablets which he had been prescribed after returning from the sexual offence investigations course and his wife “was aloof or austere or just off with the pixies”.

   The course of the trial after the completion of evidence

6. After the conclusion of the evidence of Mr Angel, the evidence was complete.[10]  The Judge then initiated further discussions as to whether the trial should continue to proceed as a trial of the question of mental incompetence or whether the original jury should be required to instead first determine the objective elements.

   [10]   Counsel for the appellant omitted to announce that he closed the defence case, but all present obviously understood that that was the position; the Judge asked the prosecutor whether he had a case in rebuttal and he replied in the negative: T327.

7. This rather radical change in course appears to have come about largely because it had become apparent that Mr Angel was not calling evidence contradicting the unanimous medical opinion that he suffered from bipolar disorder and the prosecution contention that this condition (if he suffered from it) was relevant to the question of whether Mr Angel had in fact committed the objective elements.  The medical evidence was said to be so relevant in two ways.  First, that highly disinhibited, and apparently inexplicable, behaviour as here alleged could be symptomatic of bipolar disorder.  Second, that a person suffering bipolar disorder, who performed such behaviour, might later be genuinely unable to remember it.

8. His Honour thus addressed the prosecutor:

   I initially considered empanelling another jury to consider all issues other than mental competence.  But that was dependent on how the evidence emerged.  The jury have before them all evidence which is relevant to all issues and I see no good reason why this jury should not determine all issues in those circumstances, but that decision is dependent upon the submissions you make.

9. The prosecutor responded in effect that the trial could proceed in the way suggested by his Honour and that the required “separation” referred to in the Act could be achieved by appropriate directions to the jury by his Honour.

10. Counsel for Mr Angel was initially somewhat equivocal, pending obtaining instructions on this new development.  However, after the luncheon adjournment (during which he had obtained firm instructions) counsel indicated that he had very specific instructions from Mr Angel (a former police officer):

    Can I indicate I spoke at lunchtime with Mr Angel. He has instructed me that he would like this jury to deal with mental incompetence or mental competence and nothing else.  I simply put that.  He raised concerns with them dealing with other matters.  He says he doesn’t object to them considering objective facts in mental competence but he has asked they deal only with that aspect of the matter.

11. The Judge then immediately ruled:

    I have considered that issue.  I am not persuaded that will be an appropriate course.  In my view this jury should determine all issues.  So, his application for separate juries is rejected.

12. The trial then proceeded.  Counsel addressed the jury first on the issue of mental incompetence, the Judge summed up, and the jury then found that the objective elements were established.  Later, counsel addressed, and the Judge summed up to, the same jury on the matter of mental competence.  The jury after a short retirement found the appellant to be mentally incompetent.

    Was the question of the defendant’s mental competence to commit the offence properly “separated from the remainder of the trial”?

    A person’s mental competence to commit an offence is to be presumed.[11] However, Part 8A of the Act lays down a very detailed structure concerning the investigation of the questions of whether a person accused of an offence is fit to stand trial or was mentally incompetent to commit the alleged offence. Section 269C provides that a person is mentally incompetent to commit an offence if at the time of the relevant conduct the person is suffering from a mental impairment and, in consequence of the mental impairment, does not know the nature and quality of the conduct; or does not know that the conduct is wrong; or is unable to control the conduct.

    A critical matter to be borne in mind is the danger that a person who suffers, or is said to suffer, mental disability may be wrongly assumed to be guilty of a crime in circumstances where a person with no mental disability would simply be acquitted.  It is to be remembered that a person suffering mental disability may be a ready candidate upon whom the true perpetrator may shift the blame; further, overworked police officers may too readily accept a plausible levelling of blame as resolving a case, and particularly so in circumstances where the consequences to the person suffering from mental disability may appear to be beneficial treatment rather than punishment for criminal offending.  (In a similar vein, the Courts have recognised the danger of a too ready acceptance of the guilty pleas of persons who, upon a proper investigation, would be found to have been mentally unfit to plead.[12])

    [11] Unless the person is found after an investigation to have been mentally incompetent to commit the offence: s 269D of the Act.

    [12]   The facts in R v AAM; ex parte A-G (Qld) [2010] QCA 305 provide a useful example.

13. If a defendant with a mental disability denies committing the alleged act, the questions of whether the alleged offence was committed at all, or by some other person (to the exclusion of participation by the defendant), are just as important as they are in cases where the defendant has no mental disability.  The rules of evidence and the requirement of proof beyond reasonable doubt must be the same in both cases. 

14. There is, of course, a deeper historical perspective against which such matters must be judged, including the now (hopefully) historical practices of excessive long term institutionalization that characterized certain mental health regimes. Most people would be generally aware of such matters. As the then Deputy Premier, Mr SJ Baker observed on 23 November 1995 in the second reading speeches of the Bill that inserted Part 8A of the Act:[13] 

    In the dark, dim past people who committed serious offences and were unable to plead their case adequately due to their [mental disability] were confined to mental institutions for life or at the Governor’s pleasure, and that would normally be until they died, but that is a while ago.  We have experienced difficulties handling these situations within the framework of the law as it stands today.

    [13]   South Australia, Parliamentary Debates, House of Assembly, 23 November 1995, 739, (Stephen Baker, Deputy Premier).

15. To similar effect, Ms White (supporting the Bill) there stated:[14]

    Most of those detained at Her Majesty’s pleasure have been accused of horrific crimes, though there was a case in Victoria of an accused psychotic who was detained for five years after being charged with vandalising a police car.  There is a risk that in a few cases an accused will be detained longer than the maximum sentence of imprisonment for the offence with which he or she is charged.  The Bill eliminates that risk ...

    [14]   South Australia, Parliamentary Debates, House of Assembly, 738, (Ms Patricia White).

16. Parliament clearly had regard to such dangers in distinguishing the trial of the objective elements of an offence from the trial of mental competence; it was concerned to enact a regime in which the two inquiries must be carefully separated.  As Ms White (supporting the Bill) further observed:[15]

    The question of mental competence must be separated from the remainder of the trial.  The court can decide whether to try the question of mental competence first and the objective elements second, or the other way around.  The important aim is to keep them separate so that they do not get mixed up in the jury’s mind.  Another aim is to make sure that the court finds the accused guilty beyond reasonable doubt of the objective elements of the offence.

    [15]   South Australia, Parliamentary Debates, House of Assembly, 738, (Ms Patricia White).

17. So it is, that s 269E of the Act provides:

    269E—Reservation of question of mental competence

    (1)     If, on the trial of a person for an offence—

    (a)     the defendant raises a defence of mental incompetence; or

    (b)the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice,

    the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial.

    (2)     The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant.

    (3)     If, at the preliminary examination of a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial.

    (Emphasis added)

    As to the respective functions of Judge and jury, s 269B provides:

    (1)     An investigation under this Part by the Supreme Court or the District Court into—

    (a)a defendant’s mental competence to commit an offence or a defendant’s mental fitness to stand trial; or

    (b)     whether elements of the offence have been established,

    is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.

    (2)     The same jury may deal with issues arising under this Part about a defendant’s mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries. 

    (3)     Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone.

    (4)     The defendant’s right to elect to have an investigation under this Part conducted by a judge sitting alone is not subject to any statutory qualification.¹

    Note—

    1The intention is to ensure that the right to elect for trial by judge alone is unfettered by the statutory qualifications on that right imposed by the Juries Act 1927 (thus preserving the principle enunciated in R v T [1999] SASC 429 on this point).

    Grounds 3 and 4 of appeal

18. Under ground 3 of appeal, counsel for Mr Angel contends in his outline of argument that “it was unfair or unreasonable in all the circumstances for the same jury to have dealt with issues about Mr Angel’s mental competence to commit the offence and the objective elements of the offence”.

19. Under ground 4 of appeal, counsel further contends that “the trial commenced on the basis of proceeding first with a trial of Mr Angel’s mental competence to commit the offence … but during its course became firstly a trial of the objective elements of the offence and then a trial of mental competence.  It was confusing for the jury to change its focus on different issues during the trial, and to differentiate between the standards of proof required for each issue when evidence was given and when considering the two separate verdicts”.

20. Counsel in his outline of argument goes so far as to submit that the correct interpretation of s 269E(2) of the Act is that, as a matter of law, there was no power after the trial had commenced, to change the nature of that trial under any circumstances and that it must proceed to its completion. It is not necessary here to decide the correctness of that absolute proposition.

21. In my view, the central focus of examination must be the specific and express requirement that “the question of the defendant’s mental competence to commit the offence must be separated from the remainder of the trial”.

22. The effect of the above provisions is that while the two inquiries may be held in either order, each inquiry must be separated from the other inquiry.  As noted above, a principal reason why the inquiries must be separated is to prevent one inquiry being contaminated or prejudiced by the intrusion of considerations relevant to the other inquiry.  Whether the two inquiries have been so “separated” will be informed by the cumulative effect of all relevant matters.  In the present case those matters include:

    ·That the Judge at the start of proceedings directed the jury at length that they need only concern themselves with the issue of mental incompetence;

    ·That the whole of the evidence (including the evidence of Ms Andrews, that of three psychiatrists and that of Mr Angel himself) was given with counsel and the jury attending to the evidence on the basis originally directed by the Judge;

    ·That the evidence was led largely on the basis that the evidence of Ms Andrews was accepted as true by the three psychiatrists and was used by them as an important part of their unanimous conclusion that Mr Angel was suffering from a mental disability; and,

    ·That during the course of the evidence the attention of the jury was overwhelmingly focussed on the issue of mental incompetence with little attention likely to have been given to the question of whether the important underlying question of whether the evidence of Ms Andrews was proven beyond reasonable doubt.

23. After the conclusion of the evidence adduced for the purpose of an inquiry as to mental competence, the Judge directed the jury for the first time that they were now to instead conduct an inquiry as to whether the objective elements were established on the basis of the same body of evidence. By this time, it had become the position that the two inquiries were not, and could not be regarded as, “separated” within the meaning of s 269E of the Act; in fact they were irretrievably intermingled.

24. If the jury were to be first determining the issue of objective elements, Mr Angel was, from the very beginning of such a determinative process, entitled to a trial of the objective elements quite separate to any consideration of matters relevant only to the separate trial of mental competence.  This entitlement was not satisfied by a trial which had in fact commenced as a trial of mental competence and had been hopelessly contaminated by evidence led in relation to that very issue of mental competence.

25. Analysis may be advanced by brief reference to joinder and severance in “ordinary” criminal trials (other than under the Part 8A regime). Putting aside the requirements of “legal joinder”,[16] and questions of cross-admissibility, one important recurring consideration is whether appropriate directions by the trial Judge would be insufficient to overcome any potential prejudice arising from joinder of more than one count on an Information. When severance is ordered on the basis that such directions would not be sufficient, the defendant is entitled to separate trials, each kept entirely separate from the other(s).

    [16] For trials in the District Court and in the Supreme Court, see s 278, Criminal Law Consolidation Act 1935.

26. However, it can be seen that in the case of trials under Part 8A, Parliament has already addressed the similar matter of separate trials as it occurs in the unique and difficult area of mental incompetence. Parliament itself has performed the weighing or balancing task and has determined (in my view for very good reasons) that a trial of mental competence and a trial of the objective elements should always be kept separate.

27. In summary then, under Part 8A, it is not permissible for a Judge to proceed with the two inquiries in an unseparated state and purport to separate them at the late stage of the summing up. So in the present case, the summing up could not retrospectively endow on proceedings which had reached such an advanced state, the degree of separation that they had not previously had. Once the Judge announced his volte-face to the jury, and required them to convert what had been a trial of mental competence (with its evidence complete) into a trial of the quite different matter of the objective elements, the position was irredeemable.  A mistrial had occurred and the contents of any summing up later given were simply irrelevant, no matter what its content might have been; the mandatory requirements of the Act giving protection to an accused person had been seriously breached, and that is that.

28. The above is sufficient to require the appeal to be allowed and I will consider only briefly the other matters raised.

    Was the Judge required to find that there were special reasons which required that separate juries should be empanelled?

1. Section 269B(2) of the Act states the question in terms of whether the Judge “thinks” there are special reasons to empanel a separate jury. As counsel for Mr Angel rightly submits, what is important is not what thought might lie within the mind of the Judge, but rather a conclusion or finding stated in open Court. Accordingly, the word “think” must here mean to “properly find in the circumstances”. Prosecution counsel did not submit to the contrary on the appeal and I proceed on that basis.

   No authorities discussing the meaning of “special reasons” in the context of s 296B in a way pertinent to this ground of appeal have been cited to the Court.[17]  Mr Angel submits in his outline of argument:

   “Special reasons” to order separate juries existed due to the change during the course of the trial to the order of determining issues – the jury was firstly deciding only mental incompetence on the balance of probabilities; this was later changed to firstly deciding objective elements beyond reasonable doubt.  This left the jury in the difficult position of firstly, changing its focus on the required standard of proof; and secondly, either excluding mental competence issues in reaching its first decision or including them in its deliberations without having yet decided if mental incompetence was established.  The change of order amounted to a special reason to order separate juries.  The key decision on the objective elements should be set aside.

   [17]   Some comments were made by Perry J in R v Ridings [2006] SASC 368 including at [29] that: “There are sound practical reasons why ordinarily the same judge and jury should deal with all stages, not the least of which is to avoid conflicting findings as to the credit of witnesses, including expert witnesses, called at more than one stage of proceedings.” However, that case in no way involved the particular difficulties that have arisen here.

2. On its face, this submission might appear to be somewhat more difficult for Mr Angel to establish than the matter of lack of requisite separation referred to above.  Section 296B(2) takes as its starting point that the same jury will decide both the question of mental competence and the question of the objective elements.  The present submission must go so far as to establish that the Judge erred in coming to any decision other than that special reasons existed which required that separate juries should be empanelled.

3. However, despite the height of that hurdle, I consider that, in the circumstances of this case, Mr Angel’s submission should be accepted.  This is largely because the same considerations referred to above as informing the decision that the inquiries were not “separated” also inform the question of whether “special reasons” existed.

4. In my view, it has been demonstrated that the Judge erred in failing to give adequate consideration to these matters.  On a fresh consideration of all of the circumstances as they existed after the first jury had determined the inquiry as to mental incompetence adversely to Mr Angel, I consider that their cumulative effect necessarily amounted to “special reasons” requiring the empanelling of a fresh jury to hear the inquiry as to the objective elements. 

   Grounds 1.1, 1.2 and 1.3 of appeal

5. Grounds 1.1, 1.2 and 1.3 of appeal assert that there are a number of important inconsistencies both as between the evidence of Ms Andrews at trial and her previous statements; and also as between various statements within her trial evidence itself.  Further, it is emphasised that she did not report the incident to the nurse who arrived to attend to Mrs E and did not report it to her supervisor at the Nursing home until the next day (only after she had considered the matter at length overnight).  It is argued that these, and other matters referred to in submissions, adversely affect her reliability and credibility and are suggestive of uncertainty by her of exactly what she had seen.

6. On the other hand, the prosecution argues that these matters are to be considered in the context of her newness to the role, her unfamiliarity with a dementia ward environment, an experience of shock as a result of what she had seen, and the passage of time between the incident and her giving evidence.

7. Success on these grounds of appeal could lead to no more than a retrial.  The matters of the reliability and credibility of Ms Andrews will be vital to the consideration of the tribunal of fact at the retrial and it would not be appropriate to make further comment one way or the other.  It is unnecessary to consider these grounds of appeal further.

   Ground 1.4 of appeal – inherent unlikelihood of the alleged behaviour

8. It is argued under ground 1.4 of appeal that the allegations made by Ms Andrews are inherently unlikely having regard to the facts that:

   ·Mr Angel is a former police officer;

   ·Mr Angel is a family man and of good character;

   ·Mr Angel was keen to pursue a career in aged care;

   ·the stated victim was a 99 year old dementia patient who had just soiled herself in circumstances where there can be no plausible assertion of sexual attraction as a motive; and,

   ·Mr Angel must have realised that there would be a high risk that he would be seen by the nurse who was already overdue to arrive.

9. Unsurprisingly, the gravamen of this ground – that of inherent unlikelihood and lack of motive – draws the prosecution response that this behaviour would be very well explained if Mr Angel were suffering from bipolar disorder at the time of such an incident.

10. The fate of ground 1.4 of appeal really corresponds to issues addressed under grounds 1 and 2 of appeal.  Since Mr Angel succeeds on those grounds, it is unnecessary to further consider ground 1.4 of appeal.

    Ground 2 of appeal – identification

11. Ground 2 complains that Mr Angel was not sufficiently identified at trial as the person to whom Ms Andrews referred as “Stephen Angel”.

12. It was the prosecution case that Ms Andrews had referred to Mr Angel as Stephen Angel at trial on the basis that she had seen him at the Nursing Home during her first three days there, albeit for a limited period; it was asserted that this was a matter of recognition rather than identification of a complete stranger.

13. The matter of proper identification is important in any trial and certainly no less so in the case of a defendant who may possibly have a mental disability.  It may be that this ground of appeal could be made out but I find it unnecessary to decide the matter.  In the particular and unusual circumstances here including, but not limited to, the understandable assumptions by both the prosecutor and the Judge that there was no suggestion that Ms Andrews was referring to anyone but Mr Angel, I consider that if the Court were to allow the appeal on this ground, the Court could, and should, order a retrial rather than a judgment of acquittal.  Since that same order for a retrial is clearly required by the allowing of the appeal on grounds 3 and 4, it is unnecessary to further consider ground 4 of appeal.

    Application of the proviso?

14. It would appear obvious that the proviso can have no application in the present circumstances where a particular safeguard in the trial process prescribed by Parliament in the interests of the defendant has been significantly breached.

15. Since writing the above, the High Court has delivered its joint judgment in Lee v The Queen[18] which, although concerned with very different facts, tends to both support the above outcome and confirm that the proviso cannot be applied when the required structure of a trial has been fundamentally altered.

    [18] [2014] HCA 20 (21 May 2014).

16. The appellants in Lee had been compelled to give evidence before the New South Wales Crime Commission.  A copy of the transcript of that evidence was unlawfully supplied to the office of the Director of Public Prosecutions who prosecuted the appellants on drug charges in the New South Wales District Court with the advantage of having that transcript.  The New South Wales Court of Criminal Appeal[19] dismissed their appeals on the basis that “there had been no ‘practical unfairness’, which is to say that the publication of the transcripts had no discernible effect on their defence.  Nothing in the transcripts of the appellants’ evidence was considered to be relevant to the trial as it was conducted.”[20]  On further appeal, the High Court set aside the drug convictions and declined to apply the proviso.  Their Honours stated:[21]

    These appeals do not fall to be decided by reference to whether there can be shown to be some “practical unfairness” in the conduct of the appellants’ defence affecting the result of the trial.  This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice.  The appellants’ trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession.  …  What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused.  There was no legislative authority for that alteration.  Indeed, it occurred contrary to the evident purpose of s 13(9) of the Act, directed to protecting the fair trial of examined persons.

    [19]   Lee v The Queen [2013] NSWCCA 68 (French CJ, Crennan, Kiefel, Bell and Keane JJ).

    [20] [2014] HCA 20, [40].

    [21] [2014] HCA 20, [43]; [51] (French CJ, Crennan, Kiefel, Bell and Keane JJ).

    The approach to be taken on a retrial

17. Since there may be a retrial, I think it appropriate to add brief comments on some further matters raised on the hearing of the appeal.

18. 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.

19. If the prosecution seeks to tender expert medical evidence during the trial of the objective elements, the admission of any such evidence (both as to legal admissibility and discretionary exclusion) will be governed by the usual rules of evidence applicable to ordinary criminal trials.  Further, any disputes as to admission of evidence should be determined in the absence of a jury and preferably prior to the empanelment of the jury.

    Impermissible circularity of reasoning

20. At the risk of stating the obvious, even in a “normal” circumstantial evidence case where each item of evidence is to be taken with the rest of the evidence, one must guard against circularity of reasoning and a temptation to assume the very thing sought to be proven.  It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact.[22]  The vice of circularity of reasoning was closely considered in Perry v The Queen.[23]  Brennan J there stated: [24]

    But no inference that Mr Duncan had ingested arsenic could safely be drawn from the facts proved.  The symptoms he exhibited might well have been due to other causes.  The suspicion that his symptoms were caused by arsenical poisoning arises in part - as the Crown conceded - from the fact that Mr Perry suffered from chronic arsenical poisoning.  But the mere ingestion of arsenic by Mr Perry could throw no light upon the cause of Duncan’s symptoms unless it be assumed that the arsenic ingested by Mr Perry had been administered to him by Mrs Perry.  That assumption cannot be made; administration of arsenic by Mrs Perry is the fact in issue which the evidence relating to Duncan’s symptoms is tendered to prove.  To seek to prove a fact in issue by a chain of reasoning which assumes the truth of that fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts.      (Emphasis added)

    [22]   Sutton v The Queen (1984) 152 CLR 528, 552 (Brennan J).

    [23] (1982) 150 CLR 580, 590 (Gibbs CJ), 612 (Brennan J), 594 (Murphy J). See also Sutton v The Queen (1984) 152 CLR 528, 550-552 (Brennan J); R v Thompson (1988-1989) 169 CLR 1, 17 (Mason CJ and Dawson J), 32 (Deane J).

    [24] (1982) 150 CLR 580, 612.

21. 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

22. 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

23. 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.

24. 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.

25. 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.