R v Griffiths

[2018] NSWSC 1116

Supreme Court

New South Wales

Medium Neutral Citation:	R v Griffiths [2018] NSWSC 1116
Hearing dates:	9 July 2018
Date of orders:	09 July 2018
Decision date:	09 July 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I exclude the representations contained in Exhibit Voir Dire 7.
Catchwords:	CRIMINAL LAW – evidence - voir dire – admissibility of evidence – risk of jury misusing evidence outweighs probative value
Legislation Cited:	Crimes Act 1900 (NSW), s 23A; Evidence Act 1995 (NSW), ss 137, 192
Cases Cited:	R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; R v Trotter (1993) 35 NSWLR 428; R v White [1998] 2 SCR 72
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Regina (Crown) Brendon Troy Griffiths (Accused)
Representation:	Counsel: J Tunks (Crown) C Bruce SC (Accused)   Solicitors: Office Director of Public Prosecutions (Crown) JFR Legal (Accused)
File Number(s):	2014/300561

Judgment

1. The accused has been arraigned on a single charge of murder. He is said to have murdered the deceased Mr Love on 27 September 2014 when he struck him very heavily with his elbow causing Mr Love to fall and strike his head. Mr Love died on 30 September 2014 from the effects of head and traumatic brain injuries then received.

2. When arraigned in this Court today Mr Griffiths entered a plea of not guilty of murder but guilty of manslaughter. This plea was not accepted by the Crown Prosecutor in full discharge of the indictment. Although a jury has been empanelled and the jury has received my opening direction they are yet to hear the opening on behalf of either the Crown or the accused.

3. A question has arisen about the admissibility of certain representations contained in two statements of a witness Kymberley Ann Sharp dated 30 September 2014 and 3 October 2014 respectively. From my understanding of what I have been told about the issues in the case at the directions hearing, and by counsel today, I apprehend that the basis upon which Mr Griffiths sought to have accepted a plea of guilty of manslaughter is the availability of the partial defence of substantial impairment by abnormality of the mind available under s 23A Crimes Act 1900 (NSW) (“Crimes Act”).

4. I interpolate that it will be apparent from the short narrative I have recounted already in these reasons that this matter has been unduly slow in coming to trial for the reason that at different times while the case has been pending Mr Griffiths has been found to be unfit to plead. He is now, on all of the evidence before me, fit to plead but as I have said his mental illness remains relevant to the issues the jury have to determine.

5. I have not seen all of the evidence but on the material tendered on the voir dire, which includes a report of Professor David Greenberg, a well-known forensic psychiatrist, when the events causing Mr Love’s death occurred Mr Griffiths had been diagnosed and was suffering from schizophrenia, possibly from about the age of seventeen. He was under treatment for that condition from his General Practitioner and apparently was compliant with the regime of anti-psychotic medication then prescribed for him. The medication has changed since he was arrested and taken into custody.

6. He also took other prescription medication relating to an inter-current medical condition. That medication included opiate mediation and benzodiazepines which doubtless would also have had an effect upon him when these things occurred. Presently, it is relevant that there will be evidence before the jury that the first limb, as it is sometimes put, of the partial defence of substantial impairment is satisfied. On the history received by him, and upon his review of the other documentation, Professor Greenberg is satisfied that Mr Griffiths’ capacity to control his actions was substantially impaired by an abnormality of mind arising from his underlying condition of schizophrenia. The critical question for the jury will then be whether it is satisfied on the balance of probabilities that Mr Griffiths’ capacity was so substantially impaired as to justify the reduction of his criminal responsibility from murder to manslaughter.

7. In that regard, the learned Crown Prosecutor has reminded me of the decision of the Court of Criminal Appeal in R v Trotter (1993) 35 NSWLR 428 (“R v Trotter”). That case concerned s 23A Crimes Act in its previous form but the point decided, I think, remains equally applicable to the current form of the legislation. At 431 Hunt CJ at CL said the following of the relevant factors for the jury to consider when determining that crucial question:

“... expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is [so] substantial [as to justify the reduction in liability]. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused’s perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused’s mental responsibility for his actions may ‘properly’ be called [so] substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach the task in a broad, commonsense way (citations omitted). It involves a value judgment by the jury representing the community ... not a finding of medical fact.”

8. It is also clear from his Honour’s judgment that when determining that question, which really involves a value judgment on the part of the jury guided by the normative standards of the criminal law, that the jury is entitled to have regard to the medical evidence and also to all of the other circumstances of the case, including the nature of the killing and the conduct of the accused before, at the time of and after the killing. It is also entitled, of course, to have regard to what might be called the longitudinal history of the mental illness suffered by the accused.

9. Having directed myself about the relevant considerations, I now turn to those aspects of Ms Sharp’s evidence which are contentious. From statements which have been admitted as Exhibit 6 and 7 on the voir dire, it is expected that when called to give evidence Ms Sharp will give evidence of what is said to be an implied admission by the accused in the sense of post-offending conduct betraying a consciousness of his guilt. By way of background, I should say that Ms Sharp was sharing the house where the accused lived at the time Mr Love was killed. When he returned home later that night, the circumstances of his entry to the house disturbed Ms Sharp from her sleep and she arose to investigate. She came across the accused sitting on a lounge in the lounge room. They had a conversation, during which Ms Sharp says the following words were exchanged:

“(The accused) said, ‘Kym, can you do something for me?

I said, ‘Yeah.’

(The accused) said, ‘If the cops come around here asking for me, can you tell them that I was at home all day?’

I said, ‘No way. I was at work. Why, what did you do?’

(The accused) said, ‘I was sitting down at town. This guy come up and said, “What do you think you are doing?” I said, “I’m allowed to be here.” I stood up and grabbed the guy by the head.’

(Ms Sharp describes the actions of the accused demonstrating that manoeuvre.)

(The accused) said, ‘I pulled him back, like that. I smashed his head down. I got my elbow and went like that,’ (demonstrating a swinging motion with his left elbow).

(The accused) said, ‘I punched him a couple of times. He went to the ground. There was other people that came up (sic). I smashed them too. Then I walked off. I came home.’

I said, ‘I can't lie for you. This is your problem.’”

10. I interpolate that in substance the account attributed to the accused is consistent with what he ultimately told investigating police when interviewed by them for the second time as recorded in the Electronically Recorded Interview of a Suspected Person (ERISP). It is also consistent with the history given to Professor Greenberg. I am also aware from information provided during the pre-trial procedures that the accused has been interviewed and examined by Dr Chew, another consultant psychiatrist, and gave a broadly similar account to him.

11. I turn then to the second statement to police in which Ms Sharp recounts what she says is a second conversation with the accused. She says this occurred when she returned to the house from work around 4:00 pm one day after 30 September 2014. The conversation went as follows, on her account:

“(The accused) came out to the kitchen and said to me, ‘Have you spoken to the cops?’

I said, ‘Yeah, I have the other day.’

He said, ‘What did you say?’

I said, ‘I told them what you had asked me to tell them.’

He said, ‘Yeah, what was it?’

I said, ‘You were here with me. You have to back me up now. I’ve stuck up for you. I told them you were here all afternoon.’

He said, ‘That’s good. I wasn't having psychotic episode when it happened. I knew what I was doing.’

He then said, ‘Okay, I’ll tell them I was here with you all afternoon. That’s cool, it’s sweet’.”

12. Ms Sharp, as will be apparent from so much of her earlier statement as I have recounted in these reasons, did not tell the police that the accused had been with her all of the fateful afternoon. For present purposes, nothing turns on that.

13. As I have said, the learned Crown Prosecutor relies upon these conversations as admissions of the type I have described. He also submits that this is evidence, particularly the first statement, relatively contemporaneous with the acts causing Mr Love’s death and is capable of being evidence which the jury can rely upon in accordance with R v Trotter to assess for themselves whether the accused’s impairment was so substantial as to justify a less severe outcome.

14. Mr Bruce of learned Senior Counsel, who appears for the accused submits, first, that the evidence is not relevant in as much as the only basis upon which the question of substantial impairment will be put to the jury is on the basis of an impairment of the accused’s capacity to control his actions due to his underlying condition of schizophrenia; that he was aware of his actions and the nature of them is in no way inconsistent with or contradictory of an impairment of that nature.

15. I understand him to also argue that the probative value of the statements, particularly the second statement and the admission in relation to psychotic state or the absence of it, are greatly outweighed by their prejudicial effect for the purpose of s 137 of the Evidence Act 1995 (NSW).

16. Obviously in determining questions of the admissibility of evidence I proceed on the assumption that the evidence will be accepted by the jury to determine questions of relevance but so far as questions of discretion are concerned I need to consider whether there is a risk that otherwise admissible evidence may be misused by the jury in an unfairly prejudicial way.

17. I am satisfied that that the evidence contained in the first statement of 30 September 2014, Exhibit Voir Dire 6, is admissible. I remind myself that matters proffered as admissions are admissible if I form the view that the representations are capable of being accepted by the jury as admissions and I think they are. Clearly the request for Ms Sharp to provide a false alibi is the very type of thing which falls into that category of post-offending conduct betraying a consciousness of guilt. It is my understanding that it is unnecessary for me to descend into an area where I have to assess the distinction between consciousness of guilt of murder on the one hand and on the other consciousness of guilt of manslaughter, as some of the cases in the Court of Criminal Appeal have previously suggested. It seems to me that those nice distinctions are inconsistent with the approach of the High Court of Australia in the R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. As the learned Crown Prosecutor reminded me, their Honours said (at [74]):

“There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said [in R v White [1998] 2 SCR 72 at [32]]: “The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.”

18. I accept the force of Mr Bruce’s submission that there is no inconsistency between substantial impairment of the capacity to exercise self-control on the one hand and an awareness of the wrongfulness, if I may put it that way, of one’s conduct.

19. However, given the statements in R v Trotter I am of the view that the material should properly be before the jury because the real issue in the trial is whether the impairment suffered by the accused was so substantial as to justify the reduction in his legal responsibility. Consciousness of guilt in seeking to set up a false alibi might be relevant to that very consideration. I accept that it is not determinative of it. And it seems to me that conventionally when directing the jury as to the use that may be made of consciousness of guilt evidence I will need to be astute to remind them that (a) the evidence is not inconsistent with the case of substantial impairment that is sought to be put; and (b) that there may be other explanations for the statements attributed to the accused.

20. Looking at that particular series of representations I am of the view that given adequate directions there is no real risk of the jury misusing that evidence to the unfair prejudice of the accused by reasoning in some impermissible or illogical way.

21. I will admit the evidence. I permit it to go to the jury in the form in which it appears in Exhibit Voir Dire 6.

22. I have come to a different view about the representations in Exhibit Voir Dire 7.

23. I am of the view, assuming the jury accept the evidence, that the statement is capable of being an admission and might also be evidence of consciousness of guilt.

24. However, I am concerned about the real risk of the jury misusing the statement “I wasn’t having a psychotic episode when it happened” as some admission that he was not suffering from any relevant abnormality of the mind for the purpose of what I have referred to as the first limb of substantial impairment. That question is of course a question for expert witnesses and only for expert witnesses. Although the jury need not accept evidence of an expert, where, as here, both experts seem to be in agreement they would need a very good reason to reject it.

25. But more importantly the question of whether or not his symptoms at the time were psychotic, or whether he was in the grip of a psychotic episode, are really questions also for the psychiatrist and they are not questions that lay persons can evaluate without the benefit of psychiatric evidence.

26. I think there is a real risk that the jury might take more from a statement from the accused that he was not labouring under a psychotic episode at the time than it really offers. Certainly the expert evidence suggests that, being in treatment, the accused had some insight into his condition and the nature of it, but it is not for the patient to say what the nature of the illness is. It is not for the patient to say what the significance of his current symptoms are. They are matters for expert evidence and expert evidence alone.

27. I am satisfied that the statement by the accused that he was not having a psychotic episode is not of great probative value, having regard to the true nature of the issue of a substantial impairment and the unified expert evidence about that.

28. I am satisfied that the risk, which may not be great, of a jury misusing that evidence certainly outweighs its probative value and under s 137 of the Evidence Act. I will exercise my discretion, having regard to the provisions of s 192 of the Evidence Act, to exclude the representations, and the whole of them, the subject of Exhibit Voir Dire 7.

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Decision last updated: 18 July 2018