R v Dundaman

[1997] QCA 397

COURT OF APPEAL

[1997] QCA 397

McPHERSON JA
WILLIAMS J

CULLINANE J

CA No 316 of 1997
THE QUEEN
v.

ANDREW THOMAS DUNDAMAN Appellant

BRISBANE
..DATE 14/10/97
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McPHERSON JA: This is an appeal by an appellant who was
convicted in the Circuit Court of murder. At his trial a
question was raised about the reliability or admissibility of
confessional material. To that issue, evidence was adduced from
a psychologist who, however, properly confined his remarks to
the question of the intellectual function and level of
intellectual attainment of the appellant.

Upon the matter coming before the Court, on being called this morning, Mr Rafter of counsel, who appears for the appellant, explained to the Court that, although only recently briefed, he had reached the conclusion that the case might well have been one in which it would have been proper to obtain a psychiatric assessment of the appellant in the course of preparing the defence.

Mr Rafter's inquiries of those who had acted for the appellant in the matter disclosed that no such psychiatric assessment was obtained. He, therefore, on appearing before us today, sought an adjournment to enable that matter to be investigated.

The application for an adjournment is opposed by Mr Chowdhury, but it is perhaps fair to say that he is not in a position to present any reason why the adjournment should not be granted, except perhaps the obvious one that it is a great waste of everyone's time to have these matters come on and then be adjourned without the subject of the appeal being investigated. 141097 T5/FLC4 M/T COA230/97

In all the circumstances I am disposed to think that although there is not before us anything much more than the statement of a reliable and experienced counsel that the case is one where at least the psychiatric question should have been investigated, we should nevertheless, in my opinion, adjourn the appeal in order to enable that step to be carried out. Whether, even if the psychiatric report proves, in the sense in which we are now discussing it, favourable to the appellant on appeal, it would be admissible as fresh evidence, when the matter was not investigated before or at the trial, is a question with which we are not directly concerned at the moment.

The only question, in my respectful opinion, is whether there should be an adjournment to enable the assessment to be obtained, for whatever use it may prove to be. In all the circumstances I am disposed to think that an adjournment should be granted to enable that question to be investigated because, of course, if it turns out that the appellant was in a condition in which he was not legally responsible for his actions, it would be quite wrong if he were to remain with a conviction against his name serving a sentence for an offence which, legally speaking, he was incapable of committing.

I could perhaps add to that, that the case is an unusual one in this respect, that it appears to involve a quite motiveless and irrational killing of two persons who were not strangers to the appellant. In all the circumstances I would be disposed to grant the application for an adjournment for a short, but 141097 T5/FLC4 M/T COA230/97

sufficient, period to enable the psychiatric

assessment to be obtained.

WILLIAMS J: The offences in question were committed at Mornington Island on 14 June 1996. It would appear that the appellant was in custody from then until his trial commenced in the circuit Court at Mount Isa on 11 August 1997. On 12 February 1997 he was interviewed and assessed at the Townsville Correctional Centre by a clinical psychologist Robert Zemaitis.

His report which is dated 17 February 1997 was relied on by the appellant at the voir dire conducted at the outset of the trial with a view to determining the admissibility of the interview between the appellant and the investigating police which took place some two or three days after the incidents in question. It was not put in evidence before the jury.

Experienced counsel appeared for the appellant at trial and no issue was raised as to the defence of insanity or the matter of diminished responsibility. It is obvious that there was ample opportunity for the appellant to be psychiatrically examined either before or after the psychological report was obtained. Indeed one would think that as the appellant has now been in custody since 14 June 1996 it would not be difficult to obtain from medical officers who would have seen him in the prison system some assessment of his mental condition, particularly if that were such as to afford a basis for a defence of insanity.

141097 T5/FLC4 M/T COA230/97

I have set those matters out because in my view in the ordinary case an appellant seeking to have an adjournment to obtain evidence establishing a possible defence of insanity or diminished responsibility should place before this Court some material affording a proper basis upon which this Court could exercise its discretion in determining whether to grant the indulgence to the appellant. That has not been done and that adds force to the submission made by counsel for the Director that the matters raised by counsel for the appellant are purely speculative. However, given the serious nature of the offences, the fact that even on the prosecution case this was the motiveless killing of two persons, and the personal circumstances of the appellant I would not dissent from the order proposed by the learned presiding Judge. But I would not want my doing so to be taken as an invitation to appellants to make similar applications in the future.

CULLINANE J: I agree with the presiding Judge and for the reasons he has given that an adjournment should be granted.

McPHERSON JA: Very well. The order is that the appeal will be adjourned to a date to be fixed; and we understand from what you have said that you will make every effort to expedite the obtaining of the report and provide a copy to the Crown.

MR RAFTER: Yes, we will indeed, Your Honour.
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McPHERSON JA: Thank you. And you will let the Registry know as
soon as the matter is ready to proceed.
MR RAFTER: Yes, Your Honour. Thank you, Your Honours.

McPHERSON JA: Thank you, Mr Rafter. That appeal is therefore adjourned.

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