R v Hodgson

[1996] QCA 244

IN THE COURT OF APPEAL	[1996] QCA 244
SUPREME COURT OF QUEENSLAND	C.A. No. 476 of 1995
Brisbane
Before	Fitzgerald P. Ambrose J. Helman J.

[R. v. Hodgson]

T H E Q U E E N

v.

STEVEN ROBERT HODGSON Appellant

FITZGERALD P.

AMBROSE J. HELMAN J.

Judgment delivered 23/07/1996

REASONS FOR JUDGMENT - THE COURT

Leave to add the new ground of appeal granted.
Appeal against conviction dismissed.

CATCHWORDS: CONVICTION - murder - victim was appellant’s son - inconsistencies in psychiatric evidence as to whether appellant was in a dissociated state at time offence was committed - at trial sane automatism was not put to jury, not mentioned in notice of appeal - whether leave to add new ground should be granted - whether jury should have been presented with opportunity of rejecting part of evidence of each of the psychiatrists and combining part of evidence of each in order to reach a conclusion which would have been inconsistent with evidence of all psychiatrists.

Queensland Criminal Code 1988, ss. 23, 27, 304A, 668E
Griffiths v. R. (1994) 125 A.L.R. 545
Hawkins v. R. (1994) 179 C.L.R. 500
R. v. De Voss (C.A. 229 of 1995, unreported, 24/11/95)
R. v. Falconer (1990) 171 C.L.R. 30
R. v. Molloy [1993] 1 Qd.R. 298

Counsel:	D. Lynch for the Appellant A. Rafter for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	12 March 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/07/1996

This is an appeal against the appellant’s conviction of murder in the Trial Division on 10
November 1995.

On 7 April 1994, the appellant killed his 16 month old son, Keenan, by stabbing him four times in the chest, in the course of an argument with his de facto wife, Keenan’s mother, Ms Clark.

The appellant and Ms Clark had been experiencing difficulties in their relationship, and the appellant had made a number of previous statements to his father and brother that, if Ms Clark terminated the relationship, he would kill Keenan. While the appellant could not recall such statements, he did not dispute them and, when cross-examined, agreed that he would have meant what he said.

On the day on which he did so, Ms Clark asked the appellant to leave the house, whereupon the appellant said that he would take Keenan with him. Ms Clark replied that, if the appellant took Keenan, she would call the police. When she made such a call, the appellant obtained a knife from the kitchen, took hold of Keenan, and prodded him in the chest with the knife. Ms Clark called the police again, whereupon the appellant, to use Ms Clark’s word, “dumped” Keenan on the floor, stood with one foot on his arm and the other foot on his leg and “prodded at him again”. The appellant, who gave evidence, said that he recalled walking into the kitchen, grabbing hold of a knife, walking back out of the kitchen through the lounge into the hallway, picking Keenan up off the floor and taking him back into the lounge room and placing him on the floor. Ms Clark gave evidence that she told the appellant that if he was to hurt Keenan, he would go to jail or Keenan would go to Family Services. The appellant said that he would rather Keenan went to Family Services than to her, and that if he could not have Keenan, then neither would she. A witness gave evidence that the appellant said, “If I can’t have him, nobody can.”

The appellant then stabbed Keenan twice in the front of his chest. Ms Clark ran out. Police arrived a short time later and found that Keenan had been stabbed twice further in the back and was already dead. The knife blade was still in Keenan’s body, but the handle had been broken off by the appellant.

Between the time when he killed Keenan and the time when the police arrived, the appellant telephoned both his father and Ms Clark’s mother and told them that he had killed Keenan.

According to the appellant’s father, the appellant said, “I’ve just killed Keenan.” His father asked him, “Why, what happened?” The appellant replied, “Lisa didn’t want anything to do with him [the appellant] anymore and rather than let her have the child [I] killed him.” The appellant’s father asked, “Are you fair dinkum?” And the appellant replied, “Yeah, yeah, I’ve killed him, he’s lying at my feet, I stabbed him. I’m going to jail, I’ll see you later.” According to his father, the appellant was crying during that conversation. Under cross-examination, the appellant recollected the conversation to the extent that he accepted that he had said, “I think I’ve killed Keenan and I’ll probably be going to jail.”

Evidence given by Ms Clark’s mother was that the appellant told her, “I’ve just killed Keenan.”
She asked him to repeat it, which he did and then said, “I’ll be going to jail.”

When the police arrived, the appellant said, “You’d better take me. The baby is dead.” The appellant was not subsequently interviewed by police.

In his evidence at the trial, the appellant said that he recalled the argument with Ms Clark, and asserted that she had said initially that he was to get out and that he would never see his son again. His evidence was that he could recall little of the argument after that, except obtaining the knife and taking Keenan into the lounge, laying him on the floor and placing a hand on his abdomen. The appellant’s evidence was that the next thing which he could recall was the handle of the knife flying through the air, and seeing the knife blade in Keenan’s body and trying to pull it out. He recalled making telephone calls after that, contemplating suicide and the arrival of the police.

Evidence was called from three psychiatrists. Dr Grant and Dr Alcorn were called by the prosecution, and Dr Curtis was called by the appellant. Dr Grant’s evidence was that the appellant had a dependent and narcissistic personality and suffered some form of depression which was “not severe enough” to amount to a depressive illness. He had an adjustment disorder, which was “a kind of understandable emotional reaction to very difficult circumstances”, but not a significant mental disorder. He concluded that his diagnosis would be “an adjustment disorder with depressed mood”, and did not accept that the appellant was in a dissociated state at the time when he killed Keenan.

Dr Alcorn’s evidence was that the appellant suffered an adjustment disorder with anxious and depressed moods, but that he was not insane within the meaning of s. 27 of the Code. He could not be considered to be suffering from a depressive illness which constituted a mental disease within the terms of s. 27, and, in Dr Alcorn’s opinion, was not in a dissociated state at the time when he killed Keenan.

Dr Curtis said that, in his opinion, the appellant was in a “dissociated” state when he killed Keenan as a result of a combination of factors; the appellant has a schizoid-type personality with an atypical fluctuating depression and was in a state of premonitory grief concerning the loss of his family structure. In Dr Curtis’ opinion, the triggering mechanism for the onset of the appellant’s dissociated state was the threat made by Ms Clark that the appellant would not see Keenan again. Although Dr Curtis accepted that some of the statements attributed to the appellant were inconsistent with dissociation, he adhered to his opinion that the appellant was in a dissociated state when he killed Keenan, and added that the dissociated state constituted insane automatism. He made no suggestion of sane automatism, and said that an “ordinary person”, i.e., a person free from mental abnormality, would not have gone into a dissociated state in the circumstances in which, in his opinion, the appellant did so.

The trial was conducted on the basis that the only issues concerning the appellant’s criminal responsibility related to insanity under s. 27 of the Code and diminished responsibility under s. 304A of the Code; reference was made to s. 23 of the Code, but counsel for the appellant did not seek to have the jury instructed to consider sane automatism. Further, no point relating to s. 23 was raised in the appellant’s notice of appeal. However, when the appellant’s written outline of submissions was received on 10 March 1996, it sought to raise as a ground of appeal that the trial judge had erred in not leaving for the jury’s consideration the question whether the prosecution had proved beyond reasonable doubt that the killing of Keenan had not occurred independently of the exercise of the appellant’s will within the meaning of s. 23 of the Code. When the appeal came on for hearing two days later, on 12 March 1996, the prosecution opposed the grant of leave to amend the grounds of appeal having regard to the history of the proceeding and the futility of the proposed amendment because the point was sure to fail and/or because the appeal should be dismissed under s. 668E of the Code having regard to the strength of the prosecution case. Attention was drawn to evidence given by the appellant that, at the request of his lawyers, the appellant had seen another psychiatrist, Dr Mulholland, who was not called. Further, the prosecution argument included the following submissions:

“It would be remarkable if the appellant was now permitted to depart from the deliberate strategy employed at the trial [“... there was a deliberate decision taken by experienced counsel at the trial not to attempt to argue s. 23. ...” The trial judge gave counsel every opportunity to consider this issue and put it to the jury]. No doubt tactical considerations must enter into areas of this kind and one can readily imagine the defence not wishing to advance the possibility that Dr Curtis should be accepted in certain respects and rejected in others. This might seem to increase the likelihood that the jury would reject the whole of his evidence.”

It is appropriate to start from the premise that, other considerations aside, if an issue concerning the appellant’s criminal responsibility under s. 23 of the Code was properly available on the evidence, the jury should have been directed on the issue which should have been left for the jury’s consideration: see R. v. Falconer (1990) 171 C.L.R. 30; R. v. Molloy [1993] 1 Qd.R. 298, Hawkins v. R. (1994) 179 C.L.R. 500, Griffiths v. R. (1994) 125 A.L.R. 545. We propose therefore to consider the basis advanced for the appellant’s contention that there was an issue for the jury’s determination under s. 23 of the Code.

Essentially, the appellant’s point was that, in his description of a major dissociative disorder, Dr Curtis said that it necessarily meant that a person was acting independently of the exercise of his will; further, while a person suffering a major dissociative disorder might appear to be acting normally and to be doing things intentionally, “because of splitting of consciousness, those acts are not a result of the exercise of his will”, to quote from the submission made to this Court by the appellant’s counsel. While it was accepted that, in Dr Curtis’ opinion, the appellant’s state of dissociation was a state of insane, not sane, automatism, the appellant argued that the jury could have rejected that part of Dr Curtis’ evidence while accepting his evidence, contrary to the evidence of the prosecution psychiatrists, that the appellant was in a dissociated state. To quote again from the argument before this Court by counsel for the appellant, “... the jury might have accepted some of the evidence of ... Dr Curtis, as to the appellant being in a state of dissociation at the time of the killing, but rejected Dr Curtis’ evidence as to that amounting or being sufficiently serious ... as having resulted from a disease of the mind within the meaning of section 27.” Although the reasoning process underlying the submission remains unclear to me, the appellant’s argument, at times at least, appeared to be that the absence of criminal responsibility under s. 23 of the Code, i.e., sane automatism, could have been arrived at by the jury accepting the opinion of Drs. Grant and Alcorn that the appellant was not insane when he killed Keenan and rejecting that part of the evidence of Dr Curtis that was to the effect that he was then insane, while accepting the balance of the evidence of Dr Curtis that the appellant was in a state of dissociation at the time, notwithstanding that both Dr Grant and Dr Alcorn said that the appellant was not in a dissociated state. In short, according to the appellant, the jury should have been presented with the opportunity of rejecting part of the evidence of each of the psychiatrists and combining part of the evidence of each in order to reach a conclusion which would have been inconsistent with the evidence of all three.

Leaving aside any question as to whether it would have been open to the jury to construct its own theory based upon acceptance of part and rejection of part of the evidence of each of the experts (see Molloy; R. v. De Voss (C.A. 229 of 1995, unreported, 24/11/1995), the appellant’s thesis is fatally flawed because it lacks an evidentiary foundation. The opinion of Dr Curtis that, when he killed Keenan, the appellant was in a dissociated state was not unrelated to his opinion concerning the general mental state of the appellant; it was Dr Curtis’ opinion that the events would not have caused a normal person to become dissociated, and that the reason why the appellant became dissociated was his mental abnormality. Because of that mental abnormality, the triggering event, the threat made by Ms Clark that the appellant would not see his son again, caused the appellant to become dissociated or, in other words, in a state of insane automatism; without that mental abnormality, the foundation for Dr Curtis’ opinion that the appellant became dissociated completely vanished, as Dr Curtis himself acknowledged in his evidence. There was therefore no evidence whatever upon which the jury could have concluded that, although mentally normal or not mentally abnormal, the appellant became dissociated prior to killing Keenan. Accordingly, there was no basis upon which the trial judge should, or even could, have properly left such an issue to the jury, which might well have been unnecessarily confused if he had done so.

In summary, in our opinion, there is no substance in the point sought to be raised by the appellant and, while we would give leave to add the new ground of appeal which was fully argued, the appeal should be dismissed.