R v Leach

[2002] SASC 321

R v LEACH
[2002] SASC 321

Court of Criminal Appeal:  Debelle, Williams and Bleby JJ (ex tempore)

1. DEBELLE J: I agree with the reasons given by Bleby J. In my view, the evidence which Dr Thompkins gave makes it clear that there is no prospect that any of the criteria under s 269H of the Criminal Law Consolidation Act would have been made out at the trial. I also agree that the first ground of appeal is not arguable for the reasons given by Bleby J. I, too, would dismiss the application.

2. WILLIAMS J:     I would dismiss the application for leave to appeal for the reasons given by Bleby J.

3. BLEBY J:             The applicant seeks leave to appeal against his conviction on two grounds.  His application was previously rejected by a single Judge on both grounds.  This Court has now heard oral argument on the application for leave.

4. The applicant was found guilty by a jury of one count of indecent assault and four counts of unlawful sexual intercourse with a person under 12.  The victim was the same in each case, a boy of the age of about 10 years.  The offences were committed between 1 April and 30 September 1997 at the home of the applicant.  The trial took place on 18 and 19 June 2001.

5. Ground 1 of the intended appeal complains about the trial judge saying, during the course of his summing-up, “However, if he is found guilty you can be quite satisfied that there will be a substantial penalty imposed”.

6. The statement was made in the course of an instruction to the jury not to be influenced by any general prejudices or sympathies.  The trial Judge warned the jury that this was a case not about community outrage, but whether it had been proved that the applicant committed the acts alleged.  He warned the jury that it was his responsibility as the Judge, not that of the jury, to impose an appropriate sentence.  He then made the statement complained of.  It was immediately followed by the statement:

   “What you must not do is treat this as an opportunity to make some statement to the community at large that this sort of homosexual activity with young boys should not be countenanced, and to find this man guilty on less than proof beyond reasonable doubt”.

7. It was inappropriate for the trial Judge to tell the jury that if the applicant was found guilty a substantial penalty would be imposed.  However, undesirable as the direction may have been, in the context in which it was made and in the light of the repeated assertion by the trial Judge during his summing-up that the jury could only convict if they were satisfied beyond reasonable doubt, I do not think it is arguable that the remark led to a miscarriage of justice.  I would refuse leave to appeal on this ground.

8. On the second ground the applicant wishes to adduce fresh evidence that:

   1.     The applicant was not fit to plead at the time of the trial, and

   2.     He was not mentally competent at the time of the alleged offences.

   The evidence that the applicant wishes to lead is from a psychiatrist, Dr Thompkins.  The essence of that evidence is contained in reports dated 14 December 2001, 13 February 2002 and 11 July 2002, together with an affidavit sworn on 25 July 2002.  Dr Thompkins also gave oral evidence before the judge who refused leave to appeal.  He expresses the opinion that the applicant suffers from schizophrenia or temporal lobe epilepsy or from both conditions, and that he has been suffering from one or both of them for a time which commences before the alleged offences in 1997.  There is also evidence before the Court by way of reports from Dr Koopowitz, Dr Young and Mr Balfour, all of whom disagree with the opinion expressed by Dr Thompkins.

9. If the appeal were to succeed, the Court of Criminal Appeal would have to be satisfied that the unavailability of the evidence at the trial involved a miscarriage of justice, and it will only do so if it considers that there is a “significant possibility” that the jury, acting reasonably, would have acquitted the accused of the charge if the evidence had been before it:  Gallagher v The Queen (1986) 160 CLR 392.

10. The test for whether a person is fit to stand trial is set out in s 269H of the Criminal Law Consolidation Act 1935 (“CLCA”). I will not repeat the terms of that section. The burden of proof on the balance of probabilities lies on the applicant: s 269I, CLCA. It is not sufficient that the applicant is able to lead evidence which raises a reasonable doubt as to his fitness to stand trial.

11. In my opinion, the evidence given by Dr Thompkins before the single Judge makes it clear that there is no prospect that any of the criteria set in s 269H would have been made out at the trial. At its highest, Dr Thompkins’ evidence suggested that there was a question raised as to whether he was able to follow the course of the proceedings or to follow the evidence, but at no stage does Dr Thompkins elevate his evidence to a probability that any of the criteria in s 269H of the Act were met. In the state of the evidence led before the single judge I do not consider that it is arguable that there is a significant possibility that the jury would have acted on Dr Thompkins’ evidence if it were led at the trial , or that the jury would have found that it was established on the balance of probabilities that the applicant was mentally unfit to stand trial.

12. Indeed, there are many features of the conduct of the trial which suggest that the applicant was quite capable of and did in fact give appropriate instructions.  They include, but are not limited to, aspects of the cross-examination of the victim which could only have been based upon instructions given by the applicant, and the applicant himself giving evidence at the trial, no doubt in the light of advice given to him and acted on at the time.

13. As to the question of the applicant’s mental competence at the time of the offences, the necessary criteria are set out in s 269C of the Act. The burden of proof on the balance of probabilities is once again on the applicant: s 269F(A)(3) CLCA. On the evidence of Dr Thompkins, it is possible that the applicant did suffer a mental impairment by way of schizophrenia or temporal lobe epilepsy during the course of 1997. That is not enough. It is not sufficient that the evidence merely raises a reasonable doubt as to the applicant’s mental competence.

14. Dr Thompkins, both in his reports and his oral evidence, attempts to infer from the possibility that he suffered a mental impairment at the time that he may not have known the nature and quality of his conduct, or that it was wrong, and that he may have been unable to control that conduct.  However, that again is not enough.  He was not able to elevate that possibility to a probability that those conditions were met.  Indeed, Dr Thompkins conceded that the applicant appreciated in 1997 that sexually interfering with a child was wrong, and that there was nothing in any condition suffered by the applicant to warrant a finding that he did not in fact know the nature and quality of his conduct.  He conceded that any inability of the applicant to control his sexual conduct towards the victim was nothing more than a possibility.

15. In my opinion, it is not arguable that the evidence of Dr Thompkins, if led before the jury, would have allowed the jury to conclude on the balance of probabilities that the applicant was mentally incompetent to commit the offences.

16. Accordingly, I would refuse leave on this ground also.  I would therefore dismiss the application for leave to appeal.