R v Goode

Case [2004] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:  R v Goode [2004] QCA 211
PARTIES:  R
v
GOODE, Gregory Michael
(appellant)
FILE NO/S:  CA No 405 of 2003
SC No 19 of 2003
DIVISION:  Court of Appeal
PROCEEDING:  Appeal against Conviction
ORIGINATING 
COURT:  Supreme Court at Cairns
DELIVERED ON:  25 June 2004
DELIVERED AT:  Brisbane
HEARING DATE:  31 May 2004
JUDGES:  McMurdo P, Williams JA and Cullinane J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS:  1. Appeal allowed
2.  Verdict of guilty of murder set aside
3. New trial ordered
CATCHWORDS:  CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES – GENERALLY – where appellant convicted of murder of his wife – where appellant had gone to police voluntarily and made a full confession – where appellant raised defence of diminished responsibility due to major depressive disorder – where prosecution led evidence of two psychiatrists against diagnosis of major depressive disorder, one in own case and one in rebuttal – where defence counsel did not object – whether this amounted to a prohibited splitting of the Crown case
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where Crown gave psychiatric evidence in own case and in rebuttal – where defence counsel did not object – where learned trial judge made no ruling – where learned trial judge did not refer to this irregular course of evidence in summing up – whether appellant was deprived of a reasonable chance of acquittal
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DIMINISHED RESPONSIBILITY – GENERALLY – where appellant raised defence of diminished responsibility – whether jury entitled to be satisfied on the balance of probabilities that appellant was not of diminished responsibility at the time of the killing
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INTOXICATION – where evidence that appellant was extremely intoxicated at time of killing – whether prosecution had established requisite intent for a conviction on murder
Criminal Code 1899 (Qld), s 28, s 304A, s 668E(1)
R v Chin (1985) 157 CLR 671, cited
R v De Voss [1995] QCA 518; CA No 229 of 1995, 24
November 1995, considered
R v Ghion [1982] Qd R 781, cited
R v Kern [1986] 2 Qd R 209, cited
R v Neville [1985] 2 Qd R 398, cited
R v Soma [2001] QCA 263; CA No 67 of 2001, 13 July 2001,
cited
R v Soma (2003) 212 CLR 299, considered
Shaw v The Queen (1952) 85 CLR 365, considered
Suresh v The Queen (1998) 153 ALR 145, cited
COUNSEL:  S G Durward SC for the appellant
L J Clare for the respondent
SOLICITORS:  Wettenhall Silva for the appellant
Director of Public Prosecutions (Queensland) for the
respondent

  1. McMURDO P: Mr Goode was convicted of…

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AGLC
R v Goode [2004] QCA 211
Case
[2004] QCA 211
Decision Date

CaseChat Overview and Summary

Mr Goode has appealed against his conviction of murdering his wife, arguing that the trial was unfair and that the jury should have accepted that he had diminished responsibility due to major depressive disorder at the time of the killing. The appeal focuses on the order in which the psychiatric evidence was presented and whether this was a prohibited splitting of the Crown case. The primary judge did not rule on whether Dr Fama, a psychiatrist called by the prosecution, could give evidence in the main prosecution case, rather than in rebuttal, or whether Dr Kingswell could give evidence in rebuttal. The court had to determine whether the interposition of the witness, psychiatrist Dr Fama, in the prosecution case was irregular and created such unfairness that the conviction must be quashed, and whether the jury should have had a doubt as to whether Mr Goode formed an intent to kill or do grievous bodily harm to his wife. The appeal court found that the interposition of Dr Fama was irregular and created unfairness, and quashed the conviction. The court held that the order in which the psychiatric evidence was presented was a prohibited splitting of the Crown case and that the error was not harmless. The court further held that the error was not trivial and led to a miscarriage of justice, warranting the quashing of the conviction. The appeal court allowed the appeal and quashed the conviction.

Orders

Orders of the court

1. Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Goode appeals against his murder conviction on three grounds. The first is that the interposition of the witness, psychiatrist Dr Fama, in the prosecution case was irregular and created such unfairness that the conviction must be quashed. The second is that the jury should have had a doubt as to whether Mr Goode formed an intent to kill or do grievous bodily harm to his wife. Finally, Mr Goode contends that the verdict was unsafe and unsatisfactory in that the jury should have accepted Mr Goode was of diminished responsibility at the time of the killing. A consideration of the grounds of appeal requires a review of both the evidence and the order in which it was given. The evidence and the order in which it was given At the commencement of the trial the prosecutor read out the names of the potential witnesses to be called, including: "A Dr Peter Gaetano Fama, who is a registered psychiatrist, who practises in Brisbane and who will be coming to give evidence this afternoon, I anticipate. A Dr William John Kingswell, who will be giving evidence later in the trial. He, too, practises – or is a registered psychiatrist in Brisbane. I anticipate you might also hear evidence from a Dr Basil James, who is a registered psychiatrist practising in Townsville." In his explanatory opening remarks to the jury, his Honour stated: "… you will hear from psychiatrists, as [the prosecutor] has already said, and those psychiatrists will give opinions on the state of the defendant's mind and what, if any, effect that had on his capacity to understand what he was doing, or the capacity to control his actions or the capacity to know that he ought not do this act or conduct himself in this way. So, these are the matters that the psychiatrists are going to talk about. You'll have to pay close attention to their evidence because that is what will probably be most important at the end of the day." The prosecutor's opening address was not fully transcribed and this Court does not know precisely what he said about the psychiatric evidence but it is clear that the jury were aware from the very commencement of the trial that the psychiatric evidence was crucial to their decision. The prosecution did adduce evidence from psychiatrists, Dr Fama in its primary case and Dr Kingswell in rebuttal. They contradicted the evidence of psychiatrist, Dr Basil James, called for Mr Goode. The uncontested evidence before this Court is that Dr Fama was only available to give evidence on the first day of the trial. On the weekend before the trial, the prosecutor and defence counsel discussed Dr Fama's availability. Defence counsel agreed to the prosecution calling Dr Fama during the main prosecution case, knowing that the prosecution also intended to call Dr Kingswell to give rebuttal evidence after the close of the defence case in which Dr James would be called. The learned primary judge was not asked to and did not rule as to whether Dr Fama could give evidence in the main prosecution case rather than in rebuttal or whether Dr Kingswell could give evidence in rebuttal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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