R v Baxter (Ruling No. 1)
[2008] VSC 607
•23 December 2008
a
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1542 of 2007
| THE QUEEN | Applicant |
| v | |
| ROBERT GORDON BAXTER | Respondent |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING | 8 and 11 December 2008 | |
DATE OF JUDGMENT | 23 December 2008 | |
CASE MAY BE CITED AS: | R v Baxter (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 607 | |
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CRIMINAL LAW: Murder — Mental Impairment — Client Legal Privilege — Waiver of Client Legal Privilege — Inspection of document — s 9, Crimes (Criminal Trials) Act 1999 — s 20, Crimes (Mental Impairment) Act 1997
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson with Mr D Brown | Office of Public Prosecutions |
| For the accused | Mr J F Desmond | Victorian Legal Aid |
HIS HONOUR:
Robert Baxter is about to stand trial on a charge of having murdered his wife. Although no formal admissions have yet been made, it would appear that the only issue in the case concerns Baxter’s mental state at the time of the killing. The Crown is being put to its proof that Baxter intended to kill or cause really serious injury to his wife and that his stabbing of her was a conscious, deliberate and voluntary act. As well, following a conference between his counsel and Professor Graham Burrows, a psychiatrist, on Sunday 7 December of this year, Baxter now wishes to raise a defence of mental impairment. Mr Desmond, counsel for Baxter, raised this defence for the first time when the case was called on for trial on Monday 8 December. Although Professor Burrows had already written two reports on Baxter, being reports of 22 June and of 19 November, this defence was not raised in either, nor was it raised in a report of Dr Danny Sullivan, another psychiatrist who also examined Baxter shortly after his wife’s death.
In an attempt to save the trial having to be re-listed yet again — it had already had an unfortunate listing history for various, now irrelevant, reasons — Professor Burrows was requested to attend Court to give his new opinion orally so as to permit the Court to determine whether the accused should be required to comply strictly with s 9 of the Crimes (Criminal Trials) Act 1999 and provide the Crown with a proof of Burrows’ evidence as a precondition to permitting Professor Burrows to be called as a witness on the trial.
Professor Burrows attended Court on 8 December and was asked very few questions by Mr Desmond, one of which raised the question of psychosis. He told the Court that Baxter was suffering from a major depressive disorder at the time he killed his wife. He said:
“I think he had a major depressive disorder, that he was severely distressed at the time, and I know that, for example afterwards, he tried to kill himself. He was obviously quite disturbed in his thinking; crashed the car and that sort of thing and in my report I put in of course that he still had significant depression and that he was still being treated. He was on antidepressant drugs currently, although this is years later. I didn’t see him at the time, of course, but looking at the reports I thought this man had a major depressive disorder at the time he killed his wife.”
Question: “How does that relate, if at all, to the issue of psychosis?”
Answer: “Well, I thought the way he was behaving and thinking… even now he’s what we would call psychotic intensity; it’s a matter of severity really, very severe I think at that time, and even these days, I formed the opinion that his obsessive compulsive personality is of a psychotic intensity and the amount of documentation that this man has put together is hundreds and hundreds of pages in infinite detail, far worse than — far more detailed than many people we see with psychotic depression.”
Question: “In terms of the jury, if you’re asked the question at the time he killed his wife, was he in psychosis or not, what would your evidence be?”
Answer: “I would say it’s quite likely highly probable.”
Mr Desmond did not seek any further evidence from Professor Burrows. In particular, he did not seek to elicit from him any opinion as to whether Baxter met the criteria set out in s 20 of the Crimes (Mental Impairment) Act 1997 so as to establish a defence of mental impairment to the charge of murder that he faced. Indeed, having had Professor Burrows assent to the possibility, or perhaps the probability of psychosis, Mr Desmond asked no further questions.
Mr Gibson, the Crown prosecutor, asked Professor Burrows further questions which did result in his proffering opinions as to whether Mr Baxter might have fallen within s 20 at the time he killed his wife. There the matter rested.
After Professor Burrows gave evidence on the voir dire, to which reference has been made, Mr Desmond informed the Court that in all probability Mr Baxter would give evidence at his trial on his own behalf and that he would probably call Professor Burrows. This circumstance, combined with the fact that there had been no compliance by the accused with s 9 of the Crimes (Criminal Trials) Act 1999, made it virtually impossible for the trial to finish within the available time even if a jury could be empanelled immediately. Accordingly, the trial was adjourned and refixed for 2 February 2009, and orders were made for the exchange of experts’ reports so that the accused would comply with s 9 of the Crimes (Criminal Trials) Act 1999 and so enable Professor Burrows to give evidence. Subsequently, the venue of the trial was changed to Geelong.
Contemporaneously with the directions hearing in respect of Professor Burrows’ evidence, the Crown called on a subpoena directed to Dr Danny Sullivan. The subpoena sought production of all of Dr Sullivan’s records concerning Mr Baxter, as well as a copy of a report which he had written concerning him.
In response to the subpoena, Dr Sullivan forwarded a bundle of documents to the Court. They would appear to comply with the subpoena, although they did not include a copy of the report dated 15 June 2006, which was referred to by Professor Burrows in his evidence on the voir dire. Professor Burrows said that he relied inter alia on that report in reaching the opinion he expressed. He also said that he relied on other reports by a Dr Singh, a Dr Jenkins, and may have read others still. He said that the haste with which he had attended Court had resulted in his not having reviewed his file.
The Crown sought inspection of the documents produced by Dr Sullivan under three headings; firstly, the documentation submitted to Dr Sullivan by either the accused’s solicitors, VLA, or the accused himself; secondly, documentation made or produced by Dr Sullivan as part of his psychiatric assessment; and finally, Dr Sullivan’s written report handed to this Court which is his report of 15 June 2006.
Amongst the documents produced by Dr Sullivan are documents satisfying each of the first two categories. As already noted, there is no copy of the report of 15 June amongst the papers produced, although a copy of that document is in Court, having been handed to the Court by Mr Desmond during the hearing.
The Crown identified the legitimate forensic purpose for seeking inspection of these documents as arising from the fact that Mr Desmond has stated that the accused will call Professor Burrows on his trial to support a defence of mental impairment, notwithstanding such a defence not having been adverted to prior to 8 December 2008, and in particular no report having been served pursuant to s 9 of the Crimes (Criminal Trials) Act 1999. That Professor Burrows told the Court he relied on Dr Sullivan’s report adds a further dimension to the Crown’s argument.
Mr Desmond resisted the Crown application, claiming client legal privilege in respect of all of the documents sought. The Crown responded by asserting a waiver of that privilege, at least in respect of Dr Sullivan’s report, in the circumstance of Professor Burrows having asserted that he relied upon it in reaching the professional opinion he expressed as to the accused’s mental state at the time of his wife’s death.
That the accused has waived client privilege in respect of Dr Sullivan’s report cannot be gainsaid. He cannot rely on Professor Burrows’ opinion and deny the Crown access to the material upon which that opinion was based. Indeed, had the Crimes (Criminal Trials) Act 1999 been complied with, the accused would have been required to include Dr Sullivan’s report as some of the material to be served. To establish Professor Burrows’ qualifications to give evidence of his opinion, it will be necessary for the accused to prove Dr Sullivan’s report: that is to say to prove part of the factual basis of Professor Burrows’ opinion.
Mr Desmond argued that as Dr Sullivan’s report contained reference to Mr Baxter’s instructions to his solicitor, at least that part of the report should not be available to the Crown. This submission must be rejected. The part of the report which Mr Desmond seeks to keep from the Crown is likely to be the very part which Professor Burrows found most informative. After all, if he is providing an opinion as to whether Mr Baxter was mentally impaired at the time he killed his wife, the surrounding factual circumstances must be important. If they are important to Professor Burrows so as to inform his opinion, then they are important to the Crown. It must be permitted inspection of Dr Sullivan’s report.
A copy of that report is now in the control of the Court. The easiest and most convenient method of providing access to it by the Crown would be for the accused’s solicitors to forward a copy to the Office of Public Prosecutions. If an order is required, I will make such an order, but I would expect in the circumstances it will not be.
The other material to which the Crown seeks access is also clearly the subject of client legal privilege, but the question of access to it is more difficult. Professor Burrows referred generally to material from the accused which he had. It is likely that that material is the same material as that produced on subpoena by Dr Sullivan. However, it may not be, and in the absence of positive identification, it would be inappropriate for the Court to act on the probable assumption referred to.
As the Court has ordered the accused to comply with s 9 of the Crimes (Criminal Trials) Act 1999, that material will have to be disclosed to the Crown when that order is complied with. The question will accordingly be reserved, with liberty to the Crown to apply after the time for compliance with the Court’s order under s 9 has expired. If there has been no compliance, orders will then be made. The parties should be aware that s 25 of the Crimes (Criminal Trials) Act 1999 provides cost penalties, including cost penalties against practitioners, in appropriate circumstances for failure to properly comply with parts of the Act.
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