R v Gassy (No 4) - [2010] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GASSY (No 4)
[2010] SASC 124
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
Appeal against conviction - appellant convicted of murder - prosecution case circumstantial - trial judge admitted evidence that appellant suffered from a delusional disorder - trial judge directed jury that they could infer that statements made by the appellant to various witnesses constituted "delusional thinking" - trial judge directed that evidence of delusional disorder could support prosecution case - whether evidence relevant - whether evidence should have been excluded in the exercise of discretion as being more prejudicial than probative - whether direction as to use of evidence appropriate.
Held: Evidence was relevant and admissible - evidence not more prejudicial than probative - evidence was properly admitted - trial judge's directions appropriate - appeal dismissed.

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
Search warrant issued to police to enter and search appellant's home in New South Wales - items seized included important pieces of circumstantial evidence - appellant alleged a number of defects with warrant and argued that individually or collectively they invalidated the warrant - whether warrant was valid - whether warrant properly executed - whether items located pursuant to warrant ought to have been excluded pursuant to public policy discretion.
Held: Search warrant was valid - evidence properly admitted - permission to appeal refused.

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - OTHER CASES
Appeal against trial judge's decision to admit certain items of evidence - whether items evidence of propensity - whether evidence more prejudicial than probative - whether evidence relevant.
Held: Evidence relevant to motive and not propensity evidence - any prejudicial effect of evidence outweighed by probative value - permission to appeal refused.
Search Warrants Act 1985 (NSW) s 11, s 11(2), s 12A, s 15, s 15(3) and s 23; Search Warrants Regulations 1999 (NSW) r 9; Crimes Act 1900 (NSW) s 45C, referred to.
R v Christie [1914] AC 545; R v Gassy (No 2) [2005] SASC 491; R v Gassy (No 3) (2005) 93 SASR 454; Gassy v The Queen [2007] HCA Trans 426 (9 August 2007), considered.

R v GASSY (No 4)
[2010] SASC 124
Court of Criminal Appeal: Doyle CJ, Nyland and Layton JJ

DOYLE CJ: I would refuse permission to appeal on ground 1 and ground 2. I would dismiss the appeal on ground 3 and ground 5. Ground 4 was abandoned at the hearing. I agree with the reasons given by Nyland J for so deciding.
NYLAND J: The appellant was charged on an information dated 15 September 2003 with the murder of Margaret Julia Tobin at Adelaide on 14 October 2002. At the time of her death, Dr Tobin was the Director of Mental Health for South Australia. On 14 October 2002 she was shot four times as she was leaving the lift on the eighth floor of the building where she was employed.
Background
The only issue at trial was the identity of the person who fired the shots. The case against the appellant was entirely circumstantial. The appellant had trained as a psychiatrist and worked with Dr Tobin at a Sydney hospital in 1993. Problems arose with respect to the appellant’s employment and Dr Tobin eventually became concerned about his mental condition. In July 1993 Dr Tobin wrote to the Medical Board of New South Wales to express her concerns. This was the first in a series of events which eventually led to the appellant being deregistered as a medical practitioner. A central part of the prosecution case against the appellant was that he had a strong motive to kill Dr Tobin, whom he blamed for the role she had played in his deregistration.
The first trial
The appellant pleaded not guilty to the charge and the trial proceeded before a jury (the first trial). The appellant gave evidence at the trial in which he denied being in Adelaide at the time of the alleged offence or having any involvement at all in the killing of Dr Tobin.
On 23 September 2004 the appellant was found guilty of Dr Tobin’s murder. The appellant then applied for leave to appeal against his conviction.
There were 28 grounds upon which leave was sought. A single Judge granted leave on seven grounds. The appellant then applied to the Court of Criminal Appeal for leave to appeal on those grounds upon which the single Judge had refused leave. Further grounds were also added. In due course the application for leave proceeded before the Court of Criminal Appeal. On 22 December 2005 leave was granted on a further five grounds but refused on all others. The appeal was subsequently heard by the Court of Criminal Appeal, constituted by Debelle, Bleby and White JJ. Debelle J was prepared to allow the appeal on two grounds, namely a supplementary direction given by the trial Judge at a time when the jury had indicated it was having difficulty in reaching a unanimous verdict, and the refusal to permit the appellant to be represented in the course of the voir dire. By majority, however, the appeal was dismissed.
The appellant then applied to the High Court for special leave. Eleven grounds were advanced. Special leave was granted on two grounds which were in substance the grounds upon which Debelle J had dissented in the Court of Criminal Appeal. Those matters were referred for consideration by the Full Court of the High Court. The Court took the view that the remaining grounds had insufficient prospects of success and special leave was refused with respect to them.
On 14 May 2008 the High Court, by majority, allowed the appeal and ordered that the conviction and sentence be quashed and that there be a new trial.
The second trial
The appellant was re-arraigned in the Supreme Court with respect to this matter on 26 May 2008. He again pleaded not guilty. The trial commenced on 17 February 2009 (the second trial). Legal representation was not an issue at the second trial. The appellant did not seek the assistance of counsel and elected to represent himself throughout the voir dire hearing and at the trial. The appellant did not give evidence at the second trial but the evidence given by him at the first trial was read to the jury. On 6 May 2009 the appellant was found guilty of the murder of Dr Tobin.
Voir dire application at second trial
On 23 September 2008 the appellant filed a Rule 9 application in which he sought the exclusion of various items of evidence. This included an application to exclude the evidence obtained in the course of a search which had taken place on 29 October 2002 at the house in which he was residing, the exclusion of the evidence of Dr Woodforde and other medical practitioners about the appellant’s alleged psychiatric status, and Dr Woodforde’s diagnosis of “delusional disorder”.
The appellant also sought the exclusion from evidence of a list containing the names of various people, which was accompanied by photographs and details of those persons, a torn railway ticket which had the initials and addresses of three doctors written on it and a map of St Vincent’s Hospital at Darlinghurst in Sydney, which had on it the contact details of various medical practitioners. These items had all been located by the police in the course of the search of the appellant’s home on 29 October 2002.
The Judge conducted a voir dire with respect to these matters, during which a number of witnesses gave evidence as to the search on 29 October 2002 and the circumstances surrounding the issue of the warrant used by the police to conduct that search. There was no oral evidence on the voir dire as to the diagnosis of delusional disorder but Dr Woodforde, who made that diagnosis, gave evidence at the first trial and had been examined with respect to his opinion.
In the course of argument on the voir dire at the second trial, the appellant informed the Judge that he had made an application at the first trial for Dr Woodforde to be called on the voir dire as he wished to demonstrate that the opinion expressed by Dr Woodforde was a fabrication. The Judge at the first trial refused that application. After hearing submissions from the appellant about Dr Woodforde’s evidence, the Judge at the second trial said he did not think it was appropriate to conduct an inquiry prior to trial which would require him to assess the weight of the evidence to be given by Dr Woodforde. He told the appellant that the matters raised by him about Dr Woodforde’s evidence were matters for the jury to assess at trial. The Judge told the appellant that at that stage the only question he had to consider was whether the opinion expressed by Dr Woodforde was relevant and admissible.
Voir dire ruling as to admissibility of medical evidence
On 24 November 2008 the Judge ruled that the evidence of Dr Woodforde as to his diagnosis would be allowed. The Judge also ruled that Dr Phillips would be permitted to give evidence as to the opinions he expressed in the Medical Tribunal, that Dr Wilhelm would be permitted to give evidence with respect to her role on the Professional Standards Committee in relation to the appellant, and Dr Arnold would be permitted to give evidence with respect to the proceedings before the Impaired Registrants Panel and the conclusion to which it came. The Judge also ruled that the evidence of the list, the ticket and the map would be admitted. The Judge reserved his decision on the application to exclude the items seized in the course of the search. The Judge also made other rulings with respect to various items of evidence, none of which are relevant to the present appeal.
Voir dire ruling as to admissibility of evidence obtained during search of premises
On 17 December 2008, the Judge ruled that the items seized during the search of the appellant’s premises would be admitted into evidence. The Judge gave detailed reasons for his ruling. He found that the search had taken place pursuant to a valid warrant. He therefore refused to exclude the evidence of the seized items on the ground that the warrant was invalid. Notwithstanding that finding, he considered the approach he should take on the assumption that the warrant was invalid. He concluded that there was nothing in the conduct of the police officers which could give rise to the exercise of discretion to exclude from evidence the items which the police removed from the house. At the same time the Judge gave written reasons for the order he had earlier made with respect to the admission into evidence of the list, the railway ticket and the map. He described those items as circumstantial evidence which were capable of establishing that the appellant, for one reason or another, had a preoccupation with the persons involved in his deregistration. They were therefore relevant to motive.
Appeal to the Court of Criminal Appeal
On 11 June 2009 the appellant filed an application for permission to appeal against his conviction. The notice of appeal contains five grounds which may be summarised as follows:
1The admission into evidence of items seized on 29 October 2002 in a search of the house in which the appellant was residing;
2The admission into evidence of the list (P38), the torn rail ticket (P39) and the map of St Vincent’s Hospital (P150);
3The direction to the jury that they could infer that statements made by the appellant to various witnesses, to the effect that Dr Tobin was working against his interests, constituted “delusional thinking”;
4The admission into evidence of the Brisbane Convention Centre security log (P81) as a business record;
5The admission of psychiatric evidence that the appellant suffered from a “delusional disorder”.
On 25 September 2009 permission to appeal against conviction was granted by a single Judge on grounds 3 and 5, but refused on grounds 1, 2 and 4. On the hearing of the appeal, in addition to presenting argument with respect to grounds 3 and 5, the appellant pursued his application for permission to appeal on grounds 1 and 2. Ground 4 was abandoned.
Grounds 3 and 5: the diagnosis of “delusional disorder”
These two grounds can be conveniently dealt with together as they both relate to the evidence provided by a number of medical witnesses on the subject of the appellant’s alleged “delusional disorder”. The appellant argued that this evidence was not admissible as it was irrelevant, or, in the alternative, that it should have been excluded in the exercise of discretion as being more prejudicial than probative.
Dr Woodforde
The evidence about the appellant’s delusional disorder came primarily from Dr Woodforde and arose in the following way. On 13 July 1994 Dr Tobin, in her capacity as Area Director of Mental Health of the Southern Sydney Area Health Service, wrote a letter to the New South Wales Medical Board. She expressed her concern about the appellant’s prolonged period of sick leave for psychiatric reasons and asked the Board to become involved to the point of providing an independent assessment and/or specifying his range of duties. The Board then requested Dr Woodforde examine the appellant on their behalf. In evidence at the second trial, Dr Woodforde said that in the course of the first consultation, which took place on 26 August 1994, he had some concerns about the appellant’s grasp on reality. He referred to a number of complaints made by the appellant with respect to innuendos and rumours which he considered related to him. Dr Woodforde referred to an incident in which a comment had apparently been made to the appellant to the effect that the Mauritian Ambassador was a child molester, which the appellant had interpreted as meaning that he, the appellant, was a child molester. The appellant had also complained about a cartoon which had been posted on a notice board at the hospital by a member of staff, which was a play on the word therapist, shown as “TheRapist”. The appellant believed this was a reference to him and his relationship with patients, or at least this was the assumption made by Dr Woodforde. Dr Woodforde eventually concluded that as a consequence of an accumulation of personal problems, the appellant’s emotional adjustment had decompensated into a psychotic state, as evidenced by delusional beliefs. Dr Woodforde considered that the appellant had a psychotic, delusional disorder and described many of his beliefs as both accusatory and persecutory. He recommended that the appellant seek psychiatric advice and treatment. His opinion was that the appellant was unfit to practise as a medical practitioner until he had received appropriate treatment.
During this period the appellant was seeing Dr Floyd, another psychiatrist, whose evidence I will discuss later. The appellant and Dr Floyd had been students together and initially appeared to have a good relationship. The appellant had previously indicated to Dr Woodforde that he had great confidence in Dr Floyd, but Dr Woodforde said that when he saw the appellant for a second time on 21 November 1994, the appellant told him that he had discontinued his treatment with Dr Floyd as he now considered that she did not like him.
Dr Woodforde also discussed Dr Jonathon Phillips with the appellant. The appellant told Dr Woodforde that he had gained the impression Dr Phillips considered the appellant did not suffer any major psychiatric disorder and did not require pharmacological treatment. The appellant told Dr Woodforde that he was encouraged by Dr Phillips to seek employment in anticipation of a favourable result from the Impaired Registrants Medical Board. He said that he had seen Dr Phillips on about five occasions, but then discontinued seeing him because of a lack of confidence and trust in him. Dr Woodforde considered there was a lack of logic in the appellant’s statements about Dr Phillips, as well as in statements with respect to terminating his employment at the hospital, and that supported his opinion that the appellant was continuing to suffer from a delusional disorder.
In the course of his evidence, Dr Woodforde was asked to consider a number of matters on the assumption that they would be proved in evidence by other witnesses. This included evidence from a staff member, Naomi Harry. She apparently did a lot of typing for the appellant. She said that in late 1993/early 1994 the appellant had told her that various people were out to get him, referring in particular to Dr Tobin. At around the same point in time the appellant also told her that a colleague, Dr Burke, was trying to get rid of him. There was also evidence from Ms Harry that the appellant hired a private investigator to de-bug his office because he believed “they were out to get him” and he was looking for proof that this was so.
There was also evidence from a patient called Michelle Auchiello. The appellant had treated her from 1992 to 1994, both as an in-patient and out-patient. Ms Auchiello said that initially the appellant had been very positive about Dr Tobin but his view of her later changed to the point that he felt that Dr Tobin was “out to get him”. Ms Auchiello said that during this period the appellant had told her that his office had been bugged and that Doctors Burke and Tobin had been involved in that. There was also an occasion when the appellant walked her to her vehicle after a consultation because, she assumed, he did not want Dr Tobin to stop her and talk to her about her therapy sessions. The appellant made various comments to Ms Auchiello that Dr Tobin was “out to get him” and she described an occasion when the appellant searched her bag so that he could check to see if she was using a tape recorder to tape sessions on behalf of Dr Tobin. Ms Auchiello also said that at one stage, the appellant had told her that Dr Tobin had won, saying “She’s finally done it”, which she took to mean that in the appellant’s view Dr Tobin had succeeded in preventing him from practising. She said that during the last discussion she had with the appellant, most of the discussion was in relation to Dr Tobin “winning”.
There was also evidence from Ms Payne, who was the head of the Professional Conduct and Health Section of the Medical Board of New South Wales, that the appellant had told an employee of the Board that Dr Tobin was attempting to have him deregistered through her contacts in the Department of Health.
In 1996 the appellant also consulted an immunologist, Dr Adelstein, and was unconvinced by the news that he was not HIV positive.
Statements made by the appellant to Dr Floyd about Dr Tobin were also put to Dr Woodforde.
Dr Woodforde was personally unaware of these various matters when he saw the appellant in 1994. He said, however, that if they were shown to be correct, they had a capacity to strengthen his original opinion.
Dr Phillips
Dr Phillips also gave evidence at the trial about the appellant’s psychiatric health. He said he first saw the appellant on 5 September 1994 when the appellant came to him saying that he was suffering from burn-out. Dr Phillips considered that the appellant might be reacting to external stresses and his symptoms were in response to that. He identified three areas of stress. The first was excessive workload, the second was a struggle with certain members of the nursing staff and the third was his perceived rejection by Dr Tobin, whom he thought was being unsupportive and not prepared to acknowledge him in an appropriate manner. Dr Phillips said that in the course of this consultation, the appellant told him that Dr Woodforde had diagnosed him as delusional and that he did not accept that diagnosis. Dr Phillips said that on this first occasion he did not reach a view as to any particular diagnosis.

Dr Phillips said he next saw the appellant on 7 September 1994, at which time he thought the appellant was tending to think in a paranoid manner about his problems. He then saw the appellant on 16 September 1994 when it seemed to Dr Phillips that the appellant was settling down. Dr Phillips decided not to medicate him. Up to this point, Dr Phillips thought that the appellant’s symptoms had been suggestive of depression spectrum disorder. Dr Phillips did not think that the appellant was delusional, although he thought the appellant was trying to interpret events in a rather paranoid manner.
Dr Phillips thought the last consultation he had with the appellant was on 16 September 1994, although there was some confusion about a possible contact on 18 October 1994. Dr Phillips said that during the consultations he had with the appellant, he thought the appellant would have been able to continue working, but under appropriate supervision, and had offered to assist him in that regard. Dr Phillips said it was not uncommon for a person suffering from a major depressive illness to experience a disorganisation of thoughts such as paranoid thinking.
Dr Phillips later gave evidence at the Professional Standards Committee hearing by which time his opinion about the appellant’s condition had changed. He said that originally he held the view that the appellant almost certainly had a primary depressive disorder, but that there were paranoid features which concerned him to some extent. He said, however, that by the time he gave evidence at the Tribunal, his view had shifted and he believed that it was more likely that the appellant was suffering from a primary psychotic disturbance of mind with significant depressive symptoms. Dr Phillips said the predominant reason for this was that he had taken into consideration in a formal manner the findings of Dr Woodforde.[1] A series of propositions similar to those put to Dr Woodforde were put to Dr Phillips and he was asked whether they were consistent or inconsistent with a diagnosis of psychosis and/or delusional disorder. He agreed that they were consistent with a delusional disorder of a persecutory type.
[1] Transcript of Proceedings, R v Gassy (Supreme Court of South Australia, 3 April 2009) at p 2818.
Dr Floyd
Dr Floyd first saw the appellant on 22 July 1994 when the appellant approached her in relation to certain difficulties that he was encountering. At that stage, Dr Floyd had not passed Part II of her specialist psychiatric qualifications, but she had passed Part I. The appellant saw Dr Floyd on a number of occasions and she concluded that the appellant did not have a major depressive disorder. The appellant told Dr Floyd that he was concerned about Dr Tobin pressuring him to resign, but said he had a good working relationship with Dr Burke and other people at the hospital. He was concerned about poor references from Dr Tobin and her manner towards him.
In cross-examination, Dr Floyd said she had been shocked and surprised at the diagnosis by Dr Woodforde that the appellant was suffering from a delusional disorder and said she disagreed with that diagnosis. She considered that what the appellant was describing in interviews were opinions based upon his experience in the unit and those opinions were not of a delusional nature. Dr Floyd had not observed the appellant demonstrating any of the behavioural emotional signs that accompany persecutory delusions. She did not attach significance to the Mauritian Ambassador incident. She thought the incident involving the cartoon of “TheRapist” and the appellant’s reaction to it showed that he was sensitive to criticism but it did not necessarily signify part of a delusional system. She was asked about some of the assumptions that were put to other witnesses such as the emptying of the handbag and the de-bugging, but she said she would need to know more of the factual circumstances relating to those incidents before making a diagnosis of delusional disorder.
Dr Ali
For completeness, I should mention the evidence of Dr Osman Ali. Dr Ali did not give evidence at the second trial, but his evidence from the first trial was read to the jury. He said that the appellant had consulted him three or four times in 1994 and he had reached a diagnosis of adjustment disorder. He was asked whether there was anything to suggest that the appellant suffered from psychosis or delusional disorder and he replied “none at all”. He said that there were in fact a lot of negative findings to exclude that diagnosis at that time. He said that when he worked with the appellant there was no reason to suspect that his competence was anything short of excellent.
Prosecution submission as to diagnosis of delusional disorder
The prosecution submitted that the evidence of the diagnosis of delusional disorder was relevant and admissible at trial to assist the jury in understanding why the appellant might have maintained feelings of anger and resentment against Dr Tobin over such a long period of time. The prosecution argued that it was also relevant to motive as these events had finally led to the appellant’s deregistration as a medical practitioner. Although Dr Tobin had not played any formal role in the proceedings after the matter went to the Impaired Registrants Tribunal, she had instigated those proceedings by writing the letter to the Board.
Submissions by the appellant as to Dr Woodforde’s evidence
On the hearing of the appeal the appellant was highly critical of the evidence of Dr Woodforde and repeated the matters upon which he had relied at the hearing on the voir dire for the exclusion of that evidence. He submitted that the diagnosis made by Dr Woodforde was a fabrication, was demonstrably incorrect and that Dr Woodforde had demonstrated a very low threshold for attributing a delusional basis to the thinking of the appellant. The appellant submitted that Dr Woodforde had not bothered to obtain any collateral information, nor obtain any medical history, nor had he arranged any tests to see whether the appellant was in fact suffering from any disorder which might cause such delusions. He also complained that the interview by Dr Woodforde only took 40 minutes in contrast with the period of time taken by Dr Floyd and others.
The appellant submitted that the diagnosis of delusional disorder was an expert opinion, which could only be arrived at after a detailed exploration and examination of statements made by a patient in the context of a diagnostic interview with a psychiatrist. He argued that in the absence of expert evidence to that effect it was not open to the jury to infer that the appellant’s statements about Dr Tobin had a delusional basis.
The appellant further submitted that the absence of any evidence of delusions about Dr Tobin made the diagnosis irrelevant. He argued that to ask a psychiatrist whether something was consistent did not mean anything. He submitted that the evidence should be excluded pursuant to the Christie discretion[2] as being more prejudicial than probative. It was submitted that the diagnosis lacked probative force, because it was a deliberate false diagnosis based on a small amount of material and a short psychiatric assessment. He also submitted that the evidence was highly prejudicial, given community attitudes about mental illness.
[2] R v Christie [1914] AC 545.
The Judge’s direction to the jury as to the evidence of delusional disorder
As mentioned earlier, at the conclusion of the voir dire, the Judge ruled that the prosecution would be permitted to lead evidence from Dr Woodforde as to his diagnosis, as well as opinions expressed by other medical practitioners relating to this matter.
In the course of his summing up, the trial Judge referred to the evidence of Dr Woodforde and the other medical witnesses about the appellant’s delusional disorder. He made it clear that those psychiatrists who examined the appellant were not of one view as to whether the appellant suffered from such a condition. The Judge said:
Dr Woodforde is at the forefront of the view that he did. Dr Phillips was not of the view originally but came around to the view that the accused may have been suffering from a paranoid disturbance of mind and possibly a delusional disorder.
Dr Floyd and Dr Ali expressed strong views against a finding of delusional disorder. What then is the position?
The proof of a delusional disorder is not a necessary part of the prosecution case. However, the prosecution argues, and although this word is not used, I think it is an accurate description, the prosecution argues that it sharpens their case to an extent if the accused was suffering from a delusional disorder and that it had the consequence which is referred to in the evidence of Dr Woodforde and to Dr Phillips.
When I say ‘the consequence’, I mean the anger and resentment that can arise out of the delusion against the people the person perceives to be acting against their interests. That is the extra, so to speak, which the prosecution seeks to obtain from this evidence and of course, this is related by the prosecution to the resentment and anger allegedly held by the accused against Dr Tobin. Of course resentment and anger in the ordinary sense can occur without a disorder.
The accused strongly denied that he suffered from a delusional disorder at any time. He criticised strongly the approach of Dr Woodforde who he said reached a diagnosis after an interview which lasted 40 minutes. He said the main basis relied upon by Dr Woodforde for his opinion involved the Mauritius Ambassador incident and the incident involving the sign ‘The Rapist’. The accused put to you that these matters were quite irrelevant to such a diagnosis and insufficient to support it.
He said he was under great pressure at the hospital because of the difficulties to which reference has been made and he decided to go and see Dr Ali. The accused said his symptoms were indicative of burnout and that is not a formal medical diagnosis.
The accused referred to his academic and other achievements and the fact that he had represented himself at this trial. He said these factors pointed away from a diagnosis of delusional disorder. The accused addressed you on Dr Floyd’s qualifications which he said well qualified her to express an opinion on his condition.
He said that psychiatrists other than Dr Woodforde examined him on several occasions. Dr Woodforde examined him on two occasions and I think they were of 40-minute duration.
So ladies and gentlemen, whether you accept that the accused had a delusional disorder and whether it had the consequence which the Crown argues for it on the basis of the evidence of Dr Woodforde in particular, and to a lesser extent Dr Phillips, is a matter for you. But, even if you were of the view that the accused did not suffer from delusional disorder, you would still have to consider whether he did develop feelings of anger and resentment towards Dr Tobin, and if so, to what degree and to consider your conclusion in that respect in relation to all other evidence in the case.
On the hearing of the appeal the appellant did not take issue with matters put to the jury by the Judge in his summing up, but he submitted that the jury was not qualified to decide whether statements made by him had a delusional basis and therefore amounted to a psychiatric disorder. He suggested that the jury had been invited to make a diagnosis themselves, but this patently was not the case. Earlier in his summing up the Judge explained to the jury the way in which they should approach the consideration of expert evidence. He made it clear to them that they were entitled to accept or reject the opinion of an expert. As to this particular part of the evidence, the Judge was very careful to draw the attention of the jury to the conflicting opinions of the medical practitioners with respect to the diagnosis of delusional disorder. He explained to them that if, having taken into account the differences in opinion, they were satisfied that the appellant suffered from such a disorder, that matter, on the prosecution case, could explain the appellant’s ongoing anger and resentment towards Dr Tobin, and in that way “sharpened” the prosecution case.
In my opinion, all of the evidence, including that of Dr Woodforde, that the appellant suffered from delusional beliefs was relevant and admissible. The Judge was correct in holding on the voir dire that the weight to be attributed to Dr Woodforde’s opinion was a matter for the jury to assess. At the trial the Judge drew the jury’s attention to the appellant’s criticisms of the evidence of Dr Woodforde. The Judge explained how Dr Woodforde’s opinion fitted in with the other evidence in the case and the way in which it could be used by the jury.
The Judge’s directions were comprehensive, clear and well-balanced. In my opinion, the submission that the evidence was more prejudicial than probative cannot be sustained. The criticisms of Dr Woodforde’s evidence were put to the jury and the Judge explained that it was for them to take those matters into account in assessing that evidence. The prejudicial effect claimed by the appellant, that community attitudes about mental illness created a risk that the jury would impermissibly reason that he was guilty by reason of that diagnosis, is far fetched. In my opinion, the evidence was properly admitted. I would therefore dismiss the appeal with respect to grounds 3 and 5.
Proposed Ground 1 – Exclusion of evidence seized in search of premises
The application by the appellant to exclude from evidence items located in the course of the search of his home on 29 October 2002 was similar to the application made to the Judge at the first trial and is based on identical grounds. The Judge’s decision at the first trial not to exclude relevant items was subsequently upheld by the Court of Criminal Appeal in R v Gassy (No 3).[3] Special leave to appeal with respect to this ground was later refused by the High Court.[4]
[3] (2005) 93 SASR 454.
[4] Gassy v The Queen [2007] HCA Trans 426 (9 August 2007).
The Judge at the second trial nevertheless considered the matter afresh. He conducted a voir dire which took place over 17 days. In the course of the voir dire a number of police officers involved in the issuing of the warrant and subsequent search gave evidence. Mr Wiseman, the Registrar of the Kogarah Local Court, who signed the impugned warrant also gave evidence about what he had done with respect to the warrant. The appellant did not give evidence, but called his mother, Maud Gassy, to give evidence about her dealings with the police on the day in question. The appellant also raised a series of technical issues with respect to the warrant and argued that individually or collectively, they invalidated the warrant. In order to consider these matters, it is necessary to review the circumstances surrounding the issue of the warrant and the subsequent search of the appellant’s premises. The following chronology of events is primarily taken from the Judge’s ruling on the voir dire dated 17 December 2008.
Evidence taken on the voir dire as to the search of the premises
In October 2002, Detective Sergeant Moss was a member of the Homicide Crime Team of the New South Wales Police Force. He was instructed to apply for a search warrant, pursuant to the Search Warrants Act 1985 (NSW) (“SWA”). The information to support that application was set out in an affidavit, sworn by Daniel Adam Lacey of the Major Crime Investigation Section of the South Australian Police, which was sworn at Adelaide on 27 October 2002.[5] On 28 October 2002, Moss applied for a search warrant before Mr Wiseman. That application was made in the form prescribed by the Search Warrants Regulations 1999 (NSW) and the information in the application was verified before Mr Wiseman, as required by s 11 SWA.
[5] Voir dire ruling dated 17 December 2008 at [11].
Moss applied for a warrant with respect to premises at 23 St George Crescent, Oyster Bay, but the address contained in Lacey’s affidavit was 23 George’s River Crescent, Oyster Bay. When Mr Wiseman issued the warrant (the first warrant) on 28 October 2002, it included the address referred to in Moss’s application, ie 23 St George Crescent, Oyster Bay. Section 15 SWA requires the authorised justice who issues a warrant to prepare an Occupier’s Notice and furnish it to the person to whom the warrant is issued and s 15(3) SWA provides that a person executing a search warrant shall, upon entry into or on to the subject premises, or as soon as practical thereafter, serve the notice on the person who appears to be the occupier. Mr Wiseman provided the appropriate notice to Moss.[6]
[6] Voir dire ruling dated 17 December 2008 at [16].
Detective Inspector Leonard was, at the relevant time, attached to the Homicide Squad of the New South Wales Police Force. In October and November 2002, he was assigned to assist the South Australian Police with respect to this matter. In particular, Leonard assisted in the planning for a search to be carried out on the premises at which the appellant was then living. That search was to take place on Tuesday, 29 October 2002. At about 8.00 am on 29 October 2002 Leonard conducted a briefing of police officers who were to take part in the search. During the briefing, consideration was given to whether assistance should be obtained from the Tactical Response Group of the New South Wales Police (TRG), as it was known the appellant was licensed to possess pistols.[7]
[7] Voir dire ruling dated 17 December 2008 at [17].
The police officers who were to take part in the search met at a shopping centre not far from the subject premises. At about 9.50 am, Leonard was advised that an elderly woman, believed to be the mother of the appellant, was driving away from the house. Leonard gave evidence that he waited until the woman’s vehicle arrived in the vicinity of the shopping centre. He then crossed the road and waved his arm to flag down the driver. He then confirmed that the driver was Mrs Gassy, the mother of the appellant.[8]
[8] Voir dire ruling dated 17 December 2008 at [18]-[19].
Leonard said that he then decided to ask Mrs Gassy to take the police officers to the house, so as to introduce them to her son. Leonard said she was told that the South Australian Police wanted to speak with her son and that he intended to execute a search warrant on the premises. Leonard said he told Mrs Gassy he wanted to make sure there were no incidents and he knew her son was the holder of a pistol licence and he kept two pistols on the premises. Leonard said in evidence that he saw this as a way of ensuring there were no incidents which could lead to difficulties in the execution of the search warrant.[9] According to Leonard, Mrs Gassy said she was prepared to accompany the police back to the house, although she had to keep an appointment at a nearby school. Leonard offered to drive her to the school, which was a few minutes away. He said that he offered to drive because he thought Mrs Gassy was anxious and may have had trouble driving. He believed that she was agreeable, although she had some anxiety about whether her son was going to be arrested.[10]
[9] Voir dire ruling dated 17 December 2008 at [20].
[10] Voir dire ruling dated 17 December 2008 at [20]-[24].
After Mrs Gassy went to the school, she accompanied the police to her house and opened the front door. Leonard said he saw the appellant on the stairs. A conversation took place at the front door. He introduced himself to the appellant and Mrs Gassy went upstairs. Leonard introduced the other police officers to the appellant. He asked the appellant about any pistols which were on the premises. Leonard said he told the appellant that he wanted to execute a search warrant on the premises but the appellant was not under arrest. Leonard said, however, that he did not execute the search warrant immediately because of standard operating procedures which required the presence of an independent observer throughout the search and a video operator to film the search. It was also necessary to bring a Crime Scene Officer to the scene to manage the exhibits.[11]
[11] Voir dire ruling dated 17 December 2008 at [27].

After this conversation took place, one of the police officers began filming, in the course of which Leonard summarised the conversation which had taken place. The appellant agreed on the video that the summary was accurate. The videotape of this conversation[12] was tendered at the voir dire.[13] Detective Kinsman, who was one of the South Australian Police Officers, introduced himself to the appellant and informed him that they were conducting an inquiry into the circumstances of Dr Tobin’s death. This was at 10.20 am. In the course of this conversation, Kinsman reminded the appellant he was not under arrest and he did not have to speak to the police. Leonard said he explained certain aspects of the search procedure to the appellant and that it might take some time before the independent police officer and the video operator arrived. He said the appellant indicated that the police could wait anywhere they liked and that he was happy for them to come inside, following which the police entered the house at approximately 10.26 am.[14]
[12] Exhibit VDP45.
[13] Voir dire ruling dated 17 December 2008 at [29].
[14] Voir dire ruling dated 17 December 2008 at [30]-[33].
Leonard said he then made some follow-up phone calls about the arrangements for the independent observer and the video operator. He thought it was about this time that he realised there was an error in the warrant. He said this was discovered between 10.40 am and 11.20 am. As soon as he became aware of the error, he instructed Moss to contact the Registrar who had issued the warrant to remedy the situation.[15]
[15] Voir dire ruling dated 17 December 2008 at [34]-[36].
Moss said that he then drove back to the Kogarah Court, which took about 20 minutes, and saw Mr Wiseman. He did not provide Mr Wiseman with any further documentation, but said he swore before him that the information presented on the previous day was true and correct, apart from the address. Mr Wiseman then issued him with another form of warrant which bore the correct address (the second warrant). This warrant, however, retained the date of the previous day, that is 28 October 2002.[16] Moss then returned to the house at Oyster Bay. While waiting for Moss, the other police officers remained in the house. Mrs Gassy left the house with a friend at about 10.45 am.
[16] Voir dire ruling dated 17 December 2008 at [37].
According to Leonard, after Moss returned and the video operator and independent officer were present, the search commenced at about 12.30 pm. The appellant was informed that the police were there to execute a search warrant. Leonard showed it to the appellant and explained that it permitted the officers to search the premises between the hours of 6.00 am and 9.00 pm. Other aspects of the warrant were explained to the appellant and his attention was drawn to the nature of the items which the searchers might seize. The appellant was given a copy of the Occupier’s Notice and the procedure to be adopted in the search was explained to the appellant.[17] Leonard said that the search concluded at 8.58pm[18] and there was no further searching or seizure after that time. It appears, however, that the police had a further conversation with the appellant after 9.00 pm and did not leave the premises until some time between 9.30 pm and 10.00 pm.[19]
[17] Voir dire ruling dated 17 December 2008 at [40].
[18] Transcript of proceedings, R v Gassy (voir dire) (Supreme Court of South Australia, 14 October 2008) at p 287.
[19] Transcript of Proceedings, R v Gassy (voir dire) (Supreme Court of South Australia, 14 October 2008) at pp 291-294.
Validity of the warrant
The appellant’s primary argument is that the search of the premises was illegal, as it was not carried out pursuant to a valid search warrant. A similar argument was put to the Judge at the first trial. She concluded that the search was not attended by illegality or impropriety and held that the misdescription of the address on the warrant issued on 28 October 2002 was an error of form and not of substance. She added that even if it was invalid, and the search illegal, she would not exercise her discretion to exclude the evidence. This was a matter that was subsequently ventilated before the Court of Criminal Appeal in R v Gassy (No 3).[20] The Court held that the warrant in the form in which it was first issued on 28 October 2002 did not authorise a search of the premises. It purported to authorise a search of non-existent premises and that was an error which went to the substance of the warrant.
[20] (2005) 93 SASR 454.
In Gassy (No 3) the Court of Criminal Appeal considered the effect of the application before Mr Wiseman on 29 October 2002. They considered two alternative views as to Mr Wiseman’s actions on that particular day. The first was that the warrant issued on 28 October 2002 was a nullity by reason of the incorrect address and that the approach to Mr Wiseman on the following day relied upon the application made the previous day. This would have involved the issuing of a fresh warrant. If that was the case, the warrant bore an incorrect date because Mr Wiseman retained a page of the previous warrant which was dated 28 October 2002, and attached it to the document prepared on 29 October 2002. The majority of the Court was, however, of the view that this was not a defect which would invalidate the warrant. The alternative view considered by the Court of Criminal Appeal was that Mr Wiseman had amended the warrant on 29 October 2002. The majority doubted that a warrant could be amended after it had been used. There was, however, insufficient evidence for the Court to determine whether the warrant had been used prior to the amendment having occurred. In those circumstances and given their view that the warrant was in any event invalid on account of the inclusion of the incorrect address, the Court considered it was inappropriate to express a concluded view as to whether it was open to Mr Wiseman to amend the warrant on 29 October 2002[21] or whether on either analysis the events before Mr Wiseman enabled a valid warrant to issue.[22]
[21] R v Gassy (No 3) (2005) 93 SASR 454 at 491-492 [111] (Bleby and White JJ).
[22] R v Gassy (No 3) (2005) 93 SASR 454 at 492 [112] (Bleby and White JJ).
The majority indicated that as a result of those matters, they would assume in favour of the appellant that a valid warrant had not been issued on 29 October 2002 and went on to consider the exercise of the public policy discretion. After taking into account the allegations as to illegality, including the possibility of an illegal search, they concluded that the evidence obtained as a result of the search should nevertheless be admitted.
Evidence of Mr Wiseman
The Judge at the second trial also considered that the first warrant was invalid, as it included an incorrect address.[23] Mr Wiseman did not give evidence at the first trial but he subsequently gave evidence on the voir dire at the second trial. The Judge at the second trial was therefore able to make findings based on his evidence. Mr Wiseman confirmed that he had issued the first warrant at 4.40 pm on 28 October 2002, following the application made by Moss. Mr Wiseman said the following day he received a telephone call from Moss who advised him that there was an error in the warrant in relation to the address. Mr Wiseman checked the documents and discovered that the address in the warrant was not the same as the address which had been given by Lacey in his affidavit. Mr Wiseman told Moss to return to the Court. When Moss arrived, Mr Wiseman said that he crossed out the address on the application form and, using an electric typewriter, typed the correct address into the warrant, namely, 23 George’s River Crescent, Oyster Bay. He said he and Moss then placed their signatures next to the alterations. Mr Wiseman said he then used a word processor program to type a “replacement warrant” replacing the incorrect address with the correct address on the front page. He said the warrant comprised two pages. Mr Wiseman said he prepared a new second page and signed it, but he dated that 28 October 2002. He said he did that as it was a replacement warrant. He considered the error as to the address was simply a typographical error and as far as he was concerned, the date on which he issued the warrant was still 28 October. He said the document was not re-sworn; he was simply amending the warrant by inserting the correct address. His explanation for including the date 28 October 2002 was:[24]
A.I was doing it as a replacement warrant. Search warrants have a 72-hour execution period and, in my view, it was a typographical error on the address and the replacement warrant was the easiest way to remedy that and I wasn’t going to give them any extension of time.
Q.When you say a ‘replacement warrant’, can you expand on what you actually mean by that.
A.Well, the reason why I typed up this second warrant was because the first one had the wrong address on it and, in my view, it wasn’t the address sought. The address sought in the body of the warrant application was the Georges River Crescent address and it was to correct the typo and it was just a replacement.
Q.As far as you were concerned, what date had you issued the warrant.
A.The 28^th.
[23] Voir dire ruling dated 17 December 2008 at [53].
[24] Transcript of Proceedings, R v Gassy (voir dire) (Supreme Court of South Australia, 13 November 2008 at p 778.
Moss had, however, agreed in evidence on the voir dire with a question put to him by the appellant that all that Mr Wiseman had done was replace the first page of the original warrant with a new page containing the correct address, staple the pages together and hand them to him. The appellant relied on this evidence to establish that the old second page of the first warrant had been used as the second page of the second warrant. This was, however, contrary to the evidence of Mr Wiseman.[25] The Judge found that Moss was mistaken about what happened with the warrant and accepted the evidence of Mr Wiseman that he had issued a replacement warrant, as opposed to a new warrant, as a result of which the date remained the same. The Judge found that Mr Wiseman deliberately dated the warrant 28 October 2002 but nevertheless adopted the view of the majority in Gassy (No 3) that the date was not a mandatory requirement. He expressed the view that it did not make any difference whether the date had been inserted inadvertently or on purpose.
[25] Transcript of Proceedings, R v Gassy (voir dire) (Supreme Court of South Australia, 13 November 2008 at pp 782-783.
The Judge at the second trial ultimately found, in reliance upon the evidence of the police, that when they first entered the premises of the appellant, they were not purporting to exercise any power under the warrant. The search of the premises did not take place until after Moss returned with the second warrant, and when the video operator and independent police officer were in attendance. That was the first exercise of power under a search warrant. The Judge considered that the police had not acted improperly or unfairly during the events of the morning prior to Moss returning with the search warrant.[26]
[26] Voir dire ruling dated 17 December 2008 at [97].
In addition to the circumstances surrounding the amendment of the warrant by Mr Wiseman, the appellant complained of a number of other defects relating to the warrant and circumstances surrounding the search of his premises.
Failure to comply with regulations as to retention of original warrant
The appellant complained that the Kogarah Local Court failed to comply with the obligation to retain the original warrant. It was an agreed fact at trial that the documents held by the Kogarah Local Court did not include the original warrant used to search the appellant’s premises on 29 October 2002. Regulation 9 Search Warrants Regulations 1999 requires that the application, the Occupier’s Notice and the report on the execution of the warrant be retained by the issuing Court for a period of six years. The form prescribed for the report on the execution of the search warrant (Form 7) implies that the original search warrant ought to be attached to that form. There does not, however, appear to be any requirement in the regulations that the original warrant be retained for the same period as the report on execution. Mr Wiseman confirmed in evidence that the copy shown to him[27] was an accurate copy of the warrant signed by him on 29 October 2002. That copy was admissible pursuant to s 45C Evidence Act 1929 and was sufficient to prove the terms of the original warrant. In any event, I do not believe that any failure to comply with the regulations as to the keeping of the original warrant as part of the record would retrospectively invalidate actions taken with respect to the warrant.
[27] Exhibit VDP1A.
Defects on the face of the warrant
The appellant also complained about a number of defects in the particulars which appeared on the face of the warrant.
The application for the warrant[28] described the relevant offence as “Murder (s 18 of 40/1900)”. This relates to the Crimes Act 1900 (NSW). The search warrant[29] states that the police have reasonable grounds for believing that certain things in the premises “(a) are connected with the offence(s) of murder (s 18 of 40/1900, s 2 Search Warrants Act 1985)”, being a reference to the New South Wales legislation. On that basis the appellant argued that the warrant, having specified the murder as one being committed in New South Wales, had specified an irrelevant offence and the warrant was therefore invalid. It is clear, however, that the offence to which the search related was the crime of murder. Section 23 SWA provides that a search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in the material particular.
[28] Exhibit VDP68.
[29] Exhibit VDP1.
The same argument was put by the appellant in the first trial. On appeal, the Court of Criminal Appeal in Gassy (No 3) dealt with this argument as follows: [30]
The appellant submitted that the statement of the offence in the warrant dated 28 October 2002 rendered it invalid. The warrant authorised the police to search for things which the police officers had reasonable grounds for believing were “connected with the offence of Murder (s 18 of 40/1900). Section 2, Search Warrants Act 1985”.
Act No 40 of 1900 is the Crimes Act (NSW). Section 18 is the provision in that Act establishing the crime of murder. As the murder of Dr Tobin occurred in South Australia, it was submitted that this New South Wales provision could have no application to it. The reference to s 2 of the SWA was, it was submitted, meaningless in this context as the subject matter of s 2 is the date of commencement of operation of the SWA, a date which has long since passed.
There are two reasons why this argument should be rejected. First, the warrant did specify an offence, namely, murder. The addition of the correct statutory provisions relating to that offence was not necessary in order to identify more completely the offence which was the subject matter of the warrant.
Secondly, the specification of provisions should, in our opinion, be understood as an attempt, albeit a mistaken attempt, to demonstrate on the face of the warrant the provisions which permitted a warrant to be issued in New South Wales under the SWA in respect of the offence of murder committed in another State. A warrant may be issued under the SWA to permit a search for a thing connected with a “particular indictable offence”. The expression “indictable offence” is defined in s 5(2) of the SWA to include “any act or omission which if done, or omitted to be done, in New South Wales would constitute an offence punishable on indictment. Hence we think it reasonable to construe the reference to s 18 of 40/1900 as indicating the provision which makes murder punishable on indictment in New South Wales. The reference to s 2 of the SWA was a mistaken attempt to refer to s 5(2) and its definition of “indictable offence”. In short, the warrant specifies the offence of murder. Although the offence occurred in South Australia, a warrant could be issued in New South Wales because murder is an indictable offence in New South Wales (s 18 of 40/1900), and s 5(2) defines an “indictable offence” in respect of which a warrant may be issued to include such an offence. Viewed in this way, the reference to s 2, rather than s 5(2),of the SWA is of no consequence. It is a defect to which s 23 of the SWA refers, it not being a defect which affects the warrant in a material particular. Accordingly, in our opinion, the warrant should not be held invalid on this account. [Footnotes omitted].
[30] (2005) 93 SASR 454 at 487-488 [94]-[97] (Bleby and White JJ).
I respectfully agree with and adopt those comments.
Failure to specify items involved in search
The appellant further complained that the application for the warrant failed to specify the items to be searched for, which was a mandatory requirement of SWA and that the annexure referred to as “A” was not on the record.
Mr Wiseman said in evidence that he thought the reference to Annexure “A” in the application referred to the list of property which was set out in paragraph 10(a) of the Lacey affidavit filed in support of the application for the warrant. That contained a lengthy list of property the police were seeking. That list was also included in the body of the warrant. The Judge held that in those circumstances, there had been sufficient compliance with s 12A SWA.[31] I agree with that conclusion.
[31] Voir dire ruling dated 17 December 2008 at [71].
Absence of sworn information as to correct address
The appellant also complained that the warrant was issued in the absence of sworn information from the applicant, Moss, about the appellant’s correct address. Moss, however, specifically stated in his application that he relied on the information contained in the affidavit sworn by Lacey. That would appear to satisfy the requirements of SWA s 11(2). Lacey’s affidavit in fact contained the correct address. The appellant further submitted that the sworn information to support the application for a warrant had to come from the applicant. The Judge found that the application by Moss was sworn by him.[32] Moss set out the grounds for his belief relating to the relevant items which were to be found on the appellant’s premises. The Judge considered that Moss’ reliance upon sworn information from a third party to form his belief did not alter the fact that he provided the grounds for his belief in a sworn application. There does not appear to be any rule or principle that requires the information sworn by the applicant to be of his or her own knowledge. There was sufficient compliance with s 11 SWA. I therefore reject this submission.
[32] Voir dire ruling dated 17 December 2008 at [75].
Cumulative effect of deficiencies in warrant
The appellant finally submitted that the cumulative effect of all the suggested deficiencies should be considered in determining the validity of the warrant.
In my opinion none of the suggested defects in the warrant, either separately or collectively, would result in a finding as to the invalidity thereof.
Judge’s finding that warrant was valid
The Judge’s conclusion with respect to the validity of the warrant was expressed as follows:[33]
1.The warrant issued on 28 October 2002 did not authorise a search of the premises occupied by the accused and his parents.
2.On the view that the warrant issued on 28 October 2002 was a nullity, the application presented to the justice on that date remained alive and was relied upon to issue a fresh warrant on 29 October 2002.
3.In the alternative, if the warrant issued on 28 October 2002 was not a nullity, the justice exercised a power to amend it on 29 October 2002 by inserting the correct address.
4. On either view, the search took place pursuant to a valid warrant. There were no other circumstances which invalidated the warrant. The application to exclude the items seized during the search is refused on this basis.
I agree with those conclusions.
[33] Voir dire ruling dated 17 December 2008 at [97].
Public policy discretion to exclude evidence illegally obtained pursuant to invalid warrant

Notwithstanding the Judge’s finding that the actions of Mr Wiseman on 29 October 2002 resulted in the issue of a valid warrant and that none of the matters put forward by the appellant supported a finding that the warrant was invalid, the Judge went on to consider the approach he should take to the admission of the evidence in the event that he was wrong in concluding that the warrant was valid. That gave rise to the need to consider the exercise of the public policy discretion or general discretion to exclude evidence illegally obtained.
Submissions by appellant as to exclusion of illegally obtained evidence
The appellant relied on a number of matters which he suggested amounted to illegal conduct, which he argued gave rise to the public policy discretion to exclude the evidence seized by the police, namely:
1.Provision of false and misleading information to the justice;
2.Unlawful stopping of Maud Gassy;
3.False representation to Maud Gassy that they had a warrant which entitled them to require her to return with them to the premises and give them access;
4.False imprisonment of Maud Gassy;
5.Endangerment of Maud Gassy;
6.Entering and remaining on private premises without permission or a warrant;
7.False imprisonment of the defendant;
8.Remaining on the premises for half to one hour after the warrant had expired while they removed seized items;
9.Illegal alteration of the original invalid warrant; and
10.Illegally denying the defendant and his nominee access to the search warrant records.
I have already referred to the arguments advanced by the appellant as to suggested defects in the warrant as well as what occurred when the warrant was returned to Mr Wiseman. In addition to those matters, the appellant made a number of complaints about the conduct of the police in relation to his mother, Maud Gassy, as well as their actions at the house. The appellant submitted that the police had no authority to stop Mrs Gassy, while she was driving her car and that the actions of the police officers in stopping her constituted wrongful arrest and false imprisonment. He submitted that his mother was in the custody of the police from the time she was stopped until the police permitted her to leave the house with a friend, approximately one hour after the police had arrived at the house. He also submitted that the police had believed that the appellant was dangerous and armed, that they feared a violent confrontation with him and as a consequence Mrs Gassy had been used as a human shield between police officers and the appellant.
Findings by the Judge as to conduct by police
The Judge considered each of the arguments advanced by the appellant. He accepted that the police were concerned that a dangerous situation could develop when they approached the house, as they had reliable information about the appellant’s access to firearms. The Judge accepted the evidence of Leonard that when Mrs Gassy first left the house and drove in the direction of the police officers, he made a spontaneous decision to approach her and ask her if she would accompany them to the house and introduce them to her son, thereby reducing the risk of the situation getting out of control.[34]
[34] Voir dire ruling dated 17 December 2008 at [128].
The Judge found that Leonard did not purport to act in the exercise of his power to stop the vehicle and there was no illegality in motioning to the driver in the way in which he did.[35] The Judge found that the police officer did not direct Mrs Gassy to accompany them but that they requested her to do so.[36] He said that Mrs Gassy had agreed in evidence that she was not threatened or spoken to harshly and rejected the appellant’s submission that she was detained in any relevant sense. The Judge found there was no deliberate intent or recklessness on the part of the police resulting in unlawful conduct. He carefully considered the evidence of Mrs Gassy and the police officers as to the circumstances in which she was stopped and later returned to the house. The Judge had no hesitation in rejecting the assertion made by the appellant that the police intended to use Mrs Gassy as a human shield.
[35] Voir dire ruling dated 17 December 2008 at [129].
[36] Voir dire ruling dated 17 December 2008 at [130].
In the course of the voir dire the Judge had the advantage of hearing the evidence of Mrs Gassy, as well as the relevant police officers. He considered that he was able to rely on the evidence of the police as to what had occurred. The appellant has not demonstrated any basis to interfere with the Judge’s findings as to credit. The Judge thought that Mrs Gassy was placed in an unenviable position, which upset her, but that would have been the position if the police had executed the search warrant before her departure or if she returned to the house while the police were still searching the premises.[37] The Judge also found that Mrs Gassy was mistaken in her recollection that the police officers had told her that somebody in her house was armed and violent, but did not say that it was her son they were concerned about. The Judge thought it would have been quite unrealistic for the police to suggest it might have been someone else and then to expect her to assist them by accompanying them to the house. He finally concluded that there was nothing in the conduct of the police officers in relation to Mrs Gassy which could give rise to the exercise of discretion to exclude the admission of the items which they removed from the house in the course of the search. There is ample evidence to support the findings made by the Judge as to these matters.
[37] Voir dire ruling dated 17 December 2008 at [130].
Police remaining on premises after expiry of warrant
The appellant further submitted that the police had behaved improperly by entering or remaining on the premises without permission or a warrant, had falsely imprisoned the appellant and remained on the premises for half an hour to one hour after the warrant expired while they removed seized items.[38] The Judge found[39] that if there was a technical breach of SWA by not removing all the items before 9.00 pm, it was not of such a nature as would justify the exercise of the discretion to exclude from evidence items which were seized.
[38] Transcript of Proceedings R v Gassy (voir dire) (Supreme Court of South Australia, 14 October 2008) at p 292; Transcript of Proceedings R v Gassy (voir dire) (Supreme Court of South Australia, 14 October 2008) at p 382.
[39] Voir dire ruling dated 17 December 2008 at [82]-[83].
Finding by Judge as to exercise of discretion
The Judge ultimately found that even if the search had been unlawful, the seriousness of the offence and the fact that the cogency of the evidence obtained in the course of the search remained unaffected by any illegality which might have existed, were factors to be taken into account. It was also relevant that the evidence formed a major part of the prosecution’s circumstantial case against the appellant. The Judge therefore indicated that even if the search was unlawful by reason of a defective warrant, he would have no hesitation in refusing to exclude the evidence in the exercise of the discretion.[40] The Judge noted that in any event, the facts upon which Bleby and White JJ had reached the same conclusion on the hearing of the appeal following the first trial were essentially the same facts which the Judge at the second trial found proved in evidence on the voir dire. In addition, the Judge had additional evidence not available to the Judge at the first trial. Having heard Mr Wiseman’s evidence, the Judge was well placed to make a finding about the validity of the warrant and the lawfulness of the search.
[40] Voir dire ruling dated 17 December 2008 at [109].
There is no basis for disturbing the Judge’s findings of fact, as to the circumstances in which the warrant was executed and the subsequent search and I agree with his conclusions. In my opinion, the Judge acted correctly in admitting the evidence. I agree with those conclusions. Even if there was any error with respect to the finding as to the lawfulness of the search, I agree with the Judge that in all the circumstances there was no basis for excluding the evidence in the exercise of either the public policy or general discretion.
In my opinion this ground is unarguable and permission to appeal should be refused.
Proposed Ground 2: Admissibility of Exhibits P38, P39 and P150
Each of these exhibits was located during the search of the appellant’s home on 29 October 2002. P38 consisted of two A4 sheets of paper with pictures and typing cut and pasted on to the paper. The document included handwritten details relating to various people. It included Dr Arnold, Dr Phillips, Dr Burke and Dr Wilhelm, each of whom had a connection with the proceedings which led to the deregistration of the appellant. P39 was a torn rail ticket with handwritten details on the rear. The handwriting contained initials and home address details which related to Dr Arnold, Dr Woodforde and Dr Phillips. P150 was a photocopy map of St Vincents Hospital in Sydney. There were handwritten annotations on the map which noted the route to the office occupied by Dr Wilhelm. The prosecution relied on these exhibits separately and together on the basis that they had the capacity to prove the appellant maintained an interest in persons who had played a role in his deregistration. They also had the capacity to prove that the appellant maintained an interest in the physical appearance of the people involved, their location and in one case, residential security arrangements.
The appellant sought the exclusion of these documents on the basis that they constituted impermissible evidence of propensity. He referred to the documents as constituting a “hit-list”. He submitted that there was a risk that if the evidence was admitted, the jury would reason that the appellant should be convicted and sentenced to prevent him from doing what he might go on to do to those mentioned in the “hit-list”. At no time in the course of the trial, however, did counsel or the Judge describe any of the exhibits as a “hit-list”. The appellant also argued a lack of relevance, as Dr Tobin was not named in any of the documents. The prosecution case was, however, that the appellant harboured feelings of resentment and anger towards her for her part in the sequence of events that led to his ultimate deregistration as a medical practitioner. The prosecution case relied on the appellant’s interest in the whereabouts and physical description of other persons in the same category as Dr Tobin to bear on the question of whether the appellant maintained such an interest in her.
In his ruling delivered on 17 December 2008, the learned Judge rejected the argument by the appellant that the evidence revealed bad conduct or propensity. He described it as “circumstantial evidence which is capable of establishing that the accused had a preoccupation with the persons involved in his deregistration for one reason or another.” He thereby found it relevant to motive.[41] The Judge said that although Dr Tobin was not mentioned in the documents, her actions could be viewed as connected with the deregistration. Even if there was some prejudice arising out of the evidence it was clearly outweighed by the probative value of the material.[42] I agree with the finding by the Judge on the voir dire that this was not propensity evidence, but circumstantial evidence capable of supporting the prosecution case that the accused had a preoccupation with people involved in his deregistration. It was therefore relevant to motive. I also agree with the Judge’s conclusion that any prejudicial effect it may have had was outweighed by its probative value. It was therefore admissible at trial as an item of circumstantial evidence which supported the prosecution case as to motive.
[41] Voir dire ruling dated 17 December 2008 at [137].
[42] Voir dire ruling dated 17 December 2008 at [137].
The same argument for exclusion was advanced by the appellant in the first trial. The Judge at the second trial, having formed his own opinion in relation to the application to exclude these documents, indicated that he agreed with the comments of the Court of Criminal Appeal in R v Gassy (No 2).[43]Debelle J (Bleby and White JJ concurring) said:[44]
In paragraph 26.7 the applicant contended that three exhibits were irrelevant, prejudicial propensity evidence. They are exhibits P15, P129 and P132. Exhibit P15 is a card on which names and photographs had been pasted. The photographs appear to be of Dr Arnold, Dr Phillips and Dr Burke. They are all psychiatrists. Arnold and Phillips were witnesses. Exhibit P129 is a copy of a document taken from the applicant’s wallet and contains some names. It is a torn railway ticket containing initials and addresses of doctors involved in the deregistration procedure. Exhibit P132 is a simple plan of part of St Vincent’s Hospital in Sydney. Markings on the plan point to the workstation of one of the doctors who sat on the Professional Standards Committee which had a part in the deregistration of the applicant. These documents are all relevant. They point to the applicant’s pre-occupation with the registration process and those involved in it. It is not inadmissible propensity evidence. The ground is not arguable.
[43] [2005] SASC 491.
[44] [2005] SASC 491 at [106].
Leave to appeal was refused with respect to this ground in Gassy (No 2) and special leave to appeal was subsequently refused by the High Court in Gassy v The Queen.[45] In my opinion, this ground is not arguable and permission to appeal should be refused.
[45] [2007] HCA Trans 426 (9 August 2007).
LAYTON J: I agree with the orders proposed by Nyland J and with her reasons, and I have nothing to add.