R v Sekrst

[2016] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SEKRST

[2016] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)

30 November 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DIRECTIONS TO JURY

Appeal against conviction of murder.

On 11 August 2016, the appellant and the deceased were detained in the same room of the Morier Ward of Noarlunga Hospital pursuant to the Mental Health Act 2009 (SA). On 12 August 2014, at approximately 1:00am the appellant was found by a nurse standing with his foot on the neck of the deceased yet without applying any apparent force.

When found, the appellant said that he had heard the deceased make a noise and that he had attempted to resuscitate the deceased using his foot. Upon and immediately after being found, the appellant spoke to two nurses but did not say anything about fighting with the deceased to defend himself. Evidence at trial revealed that the deceased had injuries consistent with being struck as well as warding off blows.

At trial, the appellant gave evidence that the deceased attacked him during the night. The appellant also gave evidence that he and the deceased fought, during which the deceased threatened to kill him. For about two minutes, the appellant held the deceased around his neck as hard as he could and only let go after the deceased stopped moving.

On 29 February 2016, a jury found the appellant guilty of murder.

The appellant appeals the conviction on five grounds:

1. that the trial Judge erred in failing to direct the jury as to the impermissible use of the appellant’s out of court lies to the nursing staff;

2. that the trial Judge erred as a matter of law in failing to adequately or at all apply legal discretions to the issues in the case, the evidence and the defence case;

3. that the trial Judge erred as a matter of law in failing to direct the jury as to the permissible and impermissible use of the accused’s mental condition and the deceased’s mental condition and history of violence;

4. that the trial Judge erred as a matter of law in relation to her Honour’s directions in relation to proof of the specific intent for murder;

5. that the trial Judge erred as a matter of law in relation to her directions as to self-defence as required by section 15 of the Criminal Law Consolidation Act 1935 (SA).

Held per Kourakis CJ (Vanstone and Bampton JJ agreeing), allowing the appeal on grounds one; partially allowing the appeal on grounds two, three and four; and dismissing ground five:

1. The appellant lied to the nurses by not immediately saying anything about his fight with the deceased. This lie required a direction from the trial Judge in accordance with Zoneoff v the Queen (2000) 200 CLR 234. As such a direction was not provided, there was a miscarriage of justice.

2. Common to grounds two, three and four, is a complaint that the Judge failed to apply her directions regarding the element of specific intent to the evidence of the appellant’s mental condition. The Judge, whilst providing directions in general terms, failed to apply her directions to the appellant’s specific psychotic symptoms.

3. The trial Judge appropriately directed the jury in considering both the respondent’s onus of proof and the appellant’s own perception on the issue of self-defence.

Mental Health Act 2009 (SA) Part 5; Criminal Law Consolidation Act 1935 (SA) s 269C, s 269D, s 269E, referred to.
Hawkins v the Queen (1994) 179 CLR 500; Zoneff v the Queen (2000) 200 CLR 234, applied.
Edwards v the Queen (1993) 178 CLR 193, distinguished.
Alford v Magee (1952) 85 CLR 437; Cutter v the Queen (1997) 4 A Crim R 152; Dhanhoa v the Queen (2003) 217 CLR 1; Knight v the Queen (1992) 175 CLR 495; Pemble v the Queen (1997) 124 CLR 107; R v Joyce [1970] SASR 184; R v Radford (1985) 42 SASR 260; Stingel v the Queen (1990) 171 CLR 312, discussed.
Evans v Sparrow (1973) 6 SASR 519; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Baden-Clay [2016] HCA 35, considered.

R v SEKRST
[2016] SASCFC 127

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Bampton JJ

1. KOURAKIS CJ:                 This is an appeal against a conviction for murder. 

2. On 29 February 2016 the appellant was found guilty by jury of the offence of murder.  On the night of the alleged offence, 11 August 2014, both the appellant and the deceased, Stephen Barton, were detained in Room 7 of the Morier Ward of the Noarlunga Hospital pursuant to the provisions of the Mental Health Act 2009 (SA). They shared a single room divided by a wardrobe. At about 1.00 am on 12 August 2014 a nurse, JM, went into the room to check on the appellant and Mr Barton. When she approached Mr Barton’s bed, she saw him lying on the floor motionless with the appellant standing beside him. The appellant’s foot was on the deceased’s neck but without any apparent force. When JM saw the appellant she told him to ‘get off him’ or ‘get out of here’. The appellant replied that he was trying to resuscitate the deceased.

3. Later the appellant was questioned by another nurse, KM.  He told KM that he walked around the wardrobe to the deceased’s bed after he heard a loud noise.  When he saw that the deceased was not breathing, he used his foot to get him to breathe.  He claimed that he used his foot because he had ‘really weak arms’.

4. The appellant did not say anything to JM or KM to the effect that he had fought with the deceased in defence of himself.

5. Dr John Gilbert, a forensic pathologist, gave evidence that death was caused by neck compression.  That opinion was not challenged.  Dr Gilbert also testified that he observed abrasions and bruises around the deceased’s head and face and injuries on the backs of his arms and hands.  In Dr Gilbert’s opinion, the deceased would have received a minimum of three blows to his head and face to account for the head abrasions and bruises.  Dr Gilbert also opined that the injuries to the deceased’s arms and hands were defensive in that they were most likely caused by the deceased attempting to ward off blows aimed at him.  The injuries on the deceased’s hands could be accounted for by two, or possibly three, blows. 

6. A crime scene examiner gave evidence that blood was found on the floor between the deceased’s bed and wardrobe, on the deceased’s sheet and in a nearby sink.  The blood on the floor was located next to the head end of the bed as was the blood on the deceased’s sheet.  The blood located in the sink was a small elliptical stain consistent with someone with blood on their hands washing it off in the basin.

7. The appellant gave evidence on his trial.  He testified that the deceased attacked him during the night as he was returning from the toilet.  He testified that the deceased threw the first punch which hit him on his face, after which they exchanged punches.  They took hold of each other and stumbled and fell on to the deceased’s bed, and from there on to the floor.  In the course of the struggle, the deceased threatened to kill him.  The appellant landed with his back on the floor and the deceased’s back on his chest.  The appellant’s evidence was that he held the deceased around the neck as hard as he could for about two and a half minutes.  The appellant claimed that he only let go of the deceased after he had stopped moving.  The appellant testified that he went around to his own bed for about 30 seconds before returning to check on the deceased.  It was then that he tapped the deceased with his foot ‘a few times’ before JM arrived.

8. The appellant appeals on the following grounds:

   1. The learned trial judge erred in failing to direct the jury as to permissible and impermissible use of out of court lies told by the applicant to nursing staff following the death of the deceased;

   2.The Learned Trial Judge erred as a matter of law in failing to adequately or at all apply the legal discretions to the issues in the case, the evidence and the defence case;

   3.The Learned Trial Judge erred as a matter of law in failing to direct the jury as to the permissible and impermissible use of the accused’s mental condition and the deceased (sic) mental condition and history of violence;

   4.The Learned Trial Judge erred as a matter of law in relation to her Honour’s directions in relation to proof of the specific intent for murder.

   4.1.    The Learned Trial Judge erred in failing to direct the jury as to the correct approach to proof of specific intent and to all the evidence (including the accused’s mental condition) that was relevant to whether that inference could be drawn beyond reasonable doubt;

   4.2.    The Learned Trial Judge erred in failing to direct the jury as to the significance of the evidence of Dr Gilbert as to the alternative possible mechanisms of death in relation to the issue of proof of specific intent;

   4.3.    The Learned Trial Judge erred in failing to direct the jury as to the significance of the accused’s evidence and the lack of motive or evidence of premeditation in relation to proof of specific intent;

   4.4.    The Learned Trial Judge erred as a matter of law in failing to adequately direct the jury as to the circumstances in which the alternative verdict of manslaughter arose in the context of the evidence (including that referred to in the Particulars 4.1 to 4.3 above) relevant to proof of specific intent;

   4.5.    The Learned Trial Judge erred in her redirection to the jury (SU pp 36) in that Her Honour failed to present the defence case or to address the issues raised in the Particulars 4.1 to 4.5 above.

   5.The Learned Trial Judge erred as a matter of law in relation to her directions as to self‑defence as required by section 15 of the Criminal Law Consolidation Act 1935 (the Act):

   5.1.    The directions were confusing in that they erroneously included misstatements of the correct test under the section;

   5.2.    The Learned Trial Judge erred in directing the jury that the objective test required the jury to determine what they as 12 reasonable men and women regarded as a reasonably proportionate response (SU pp14-15);

   5.3.    The Learned Trial Judge erred in failing to adequately apply the law to the issues and evidence and to present the defence case in relation to each limb.

   5.4.    The learned trial judge erred in failing to adequately direct the jury as to the significance of the accused’s mental condition and the prescribed medication to both limbs of self defence and to the inferences that might otherwise be drawn from the evidence as to his conduct;

   5.5 The learned trial judge erred in failing to adequately direct the jury in accordance with section 15B of the Act.

9. I would allow the appeal on ground 1.  The Judge did not give a direction explaining to the jury the limited circumstances in which a lie or lies might evidence guilt and did not warn the jury generally against using any lies told by the accused for any purpose other than assessing his credit.  The appellant’s false statement to KM that he first discovered the deceased on the floor after walking around the wardrobe to investigate a noise was, on his own testimony, a significant lie on a very material issue.  There was a real risk that the jury would use it as evidence from which to infer guilt.  Additionally, in his address, the prosecutor placed significant emphasis on the lie, albeit as a reason not to accept the appellant’s testimony about self-defence because it was a recent fabrication.  There is reason to apprehend that the jury might have reasoned from the admitted telling of the lie to guilt of their own accord. 

10. I would dismiss the third ground insofar as it complains that the Judge failed to direct the jury on the permissible and impermissible use of the deceased’s mental condition and history of violence.  The jury would readily have appreciated that the deceased’s mental illness, and the deceased’s history of acting aggressively on earlier occasions, was evidence from which they were entitled to infer that the deceased had acted aggressively, either in the way described by the appellant, or in some other way.

11. I would dismiss ground 5.  It will be seen that, on a single occasion, the Judge misdirected on the onus of proof of self-defence, however, no complaint was made at the time and it must have been obvious to the jury, in the context of the Judge’s many other correct references to the onus of proof, if they noticed it at all, that her Honour’s comment was a slip.  In all other respects, the Judge’s directions on the law of self-defence were impeccable. 

12. However, I would allow the appeal on the complaint, common to grounds 2, 3 and 4, that the Judge failed to apply her directions on the element of specific intention to the evidence of the appellant’s mental condition. 

13. My reasons follow.

    The evidence

14. It is necessary first to explain a little more of Dr Gilbert’s evidence on the cause of death.  Dr Gilbert explained that there are three or four internal mechanisms that may operate to cause the death of a person from neck compression:

    ·The first internal mechanism is an interruption of the carotid arteries.  This mechanism prevents the brain from receiving oxygen.

    ·The second internal mechanism is an interruption of the jugular vein.  This mechanism prevents blood leaving the brain, thereby preventing further blood from being resupplied to the brain.

    ·The third mechanism involves the tongue being pushed backwards to block off the back of the throat through compression of the trachea. This mechanism could be a factor in a strangulation case, but could also be fatal in itself.

    ·The fourth mechanism involves compression of the pressure sensors located in the upper part of the carotid artery underneath the jaw.  The pressure could cause impulses to be sent to the brain which could then be interpreted by the brain as an increase in blood pressure, causing the brain to send a signal to the heart to slow down and stop. This is described as a theoretical possibility but rare in practice.

15. Dr Gilbert explained that cutting off oxygenated blood to the brain results in unconsciousness after 10 to 15 seconds.  A person may be able to regain consciousness if blood supply is re-established after about 30 seconds, but will die if the blood supply is cut off for three to four minutes.

16. Dr Gilbert was unable to say definitively which of the four internal mechanisms, or combination of the four, caused the deceased’s death.  He testified that compression applied to the deceased’s neck was more likely to have been for ‘minutes’ and that it would be unusual for the application of the fourth internal mechanism ‘to actually cause the heart to stop completely’.  Dr Gilbert was not able to identify which external mechanism was applied because there were no distinctive marks on the neck.  A hand, foot, ligature, or a forearm could all have been responsible for the neck compression.  Dr Gilbert gave evidence that injuries to the neck muscles and thyroid cartilage of the deceased suggested that substantial force was applied to the right side of the neck.  Dr Gilbert opined that the observations he made were more consistent with a ‘bar hold’ than holding the neck in the crook of the arm.  A bar hold was unlikely to cause the fourth internal mechanism. 

17. Dr Michael Warhurst, the deceased’s treating psychiatrist, gave evidence that he saw the deceased in 2011 and diagnosed that he suffered from chronic paranoid schizophrenia.  The deceased’s delusional beliefs included that his mother was an imposter and that he was under surveillance by the American government.  Dr Warhurst testified that the deceased was never violent or aggressive in the time that he saw him.  He had seen him become agitated, but never felt threatened by him.  The deceased’s psychiatric condition improved in the following three years to late July 2014.  However, in mid-2014, Dr Warhurst was informed that the deceased was talking about leaving South Australia in a way which suggested a re-emergence of his delusions.  Dr Warhurst visited the deceased at his home on 28 July 2014 and found him to be agitated.  The deceased admitted to Dr Warhurst that he had not taken his medication for several days.  Dr Warhurst detained the deceased because he thought his desire to move interstate would place him at risk because he would lose his family and medical supports in South Australia.  The deceased was taken to the Noarlunga Hospital in an ambulance without incident.

18. A statement of Dr Hiremani was read to the jury.  He assessed the deceased on 29 July 2014, 31 July 2014, and 4 August 2014 in the Noarlunga Hospital.  He observed that the deceased was guarded and slightly irritable, but did not object to taking Risperidone.  During the second and third assessments, the deceased spoke in an American accent and expressed delusions about his country of origin.  Dr Hiremani considered that the deceased had ‘ongoing persecutory delusions and was acting on those beliefs’.

19. Evidence that the deceased had engaged in violent behaviour in the past was elicited through the cross-examination of Dr Warhurst and from the statement of Dr Hiremani which was read to the jury.  The deceased had assaulted members of his family, threatened a stranger with a knife and was found on one occasion to have petrol bombs in his laundry.  All of those incidents occurred before December 2011.  The deceased had been detained in a closed ward in the past and had a history of polysubstance abuse and self-neglect. 

20. Dr Matti assessed the deceased twice, on 6 August 2014 and 11 August 2014.  On 6 August 2014, the deceased told Dr Matti that he wanted to move interstate or overseas and that he wanted to join the military.  On the second assessment he denied any plans to move away from South Australia, but did say that he wanted to start a new life.  He did not hold any delusions about his mother but repeated his desire to join the military.   Dr Matti formed the opinion that the deceased was likely to be ready to be discharged at the end of the week and intended to apply for a community treatment order to ensure that the deceased continued to take his medication after his release. 

21. JM, KM, two enrolled nurses, a clinical nurse, and two patients gave evidence that the deceased was generally well-behaved and did not exhibit any aggression whilst detained at the Noarlunga Hospital.  He was polite and happy.  However, the deceased was sometimes agitated, restless and moderately anxious.  The evidence was that he would talk to himself or pray at night and sometimes expressed his delusional beliefs.  He sometimes talked in his sleep. 

22. The appellant was detained under the Mental Health Act 2009 (SA) on 8 August 2014 by the registered nurse, AL. The appellant did not appear to be agitated or aggressive when he was advised that he would be detained, but nor did he appear to comprehend the process. He was taken to Noarlunga Hospital by ambulance.

1. Dr Giannakoureas, a psychiatrist, attended on the appellant at the Noarlunga Hospital on 9 August 2014 for the purpose of reviewing the detention order.  Dr Giannakoureas found the appellant to be vague, perplexed and unable to grasp his circumstances.  The appellant appeared to be suspicious.  Dr Giannakoureas thought that the appellant may be suffering from a psychotic illness.  On the basis of his examination and information taken from the appellant’s history, Dr Giannakoureas confirmed the detention order.

2. On 10 August 2014, the appellant was observed by a nurse to be withdrawn but agitated.  The nurse described the appellant pulling his hood over his eyes, and to cover his head with a blanket.  He would lie on his bed with his foot twitching in a repetitive movement.  When up, he paced around rapidly.

3. On 11 August 2014, the appellant was found to be polite and cooperative and did not seem agitated or distressed.

4. Dr Giannakoureas saw the appellant again on 12 August 2014 after he had been taken into police custody.  The appellant was surprisingly vague, almost unconcerned, and relaxed.

5. The appellant gave evidence that he worked as a concrete steel fixer in 2014 but became unwell in about June 2014.  He lost his appetite and lost weight.  He stopped working in about July.  The appellant testified that in July and August 2014 he was feeling wary, paranoid, anxious and withdrawn.  He said that, in that period, he was afraid of sleeping and, to keep himself awake, he would tap his hands or feet.

6. The appellant gave evidence that when he was detained in the Noarlunga Hospital he felt terrible, paranoid, anxious and withdrawn.  He ate very little.  The appellant testified that whilst he was at Noarlunga Hospital he was barely sleeping because he was afraid of falling asleep.  The appellant continued to do things to try and stop himself falling asleep, such as concentrating on his hands or feet and tapping his hands or feet.  He did not recall pacing in his room.

7. The appellant was asked about the night on which the deceased was killed.  He testified that he was taken to Room 7 on 11 August 2014 at about 6:00 pm.  Later in the evening he went outside for a cigarette.  He returned to his bed and read a magazine while eating some nuts.  He could hear the deceased talking.  The appellant testified that ‘[i]t sounded sometimes like he was talking to himself and other times like he was talking to somebody else’.  The appellant described the deceased saying all sorts of ‘scary things’ like ‘I’m going to get you’ and ‘You can’t do that, you can’t get me’.  The appellant thought that the deceased may either have been addressing the comments to him or talking to himself.  The appellant stayed in his bed, wriggling his foot or tapping his hands.

8. The appellant then gave the evidence set out in [7] above of being attacked by the deceased when returning to his bed from the toilet.

9. In cross-examination, the appellant was asked why he did not tell either of the nurses, JM or KM, that he had been attacked by the deceased.  The appellant answered:

   Because my brain - my brain wasn’t functioning how it should have been and I didn’t – I didn’t know that he died and I was – I was just scared and shocked.

   When asked why he did not leave the room immediately after the deceased became motionless instead of walking around to his side of the room, the appellant again answered that his brain was not functioning.  The appellant testified that he did not go down to tell JM about what had happened because he was scared and a mental wreck: ‘My mind was in 100 – 100 different places at the same time, I was a mental wreck’.

10. The appellant was asked by the Judge whether he could explain why he did not leave the room when he got away from the deceased to tell someone that his roommate had tried to kill him.  He answered:

    ‘Cos I was just in shock, your Honour, and my mind wasn’t functioning how it should have, should have been. Yeah, I didn’t know what to do.

11. The appellant was cross-examined about video footage taken of him when he was arrested.  It was put to him that he did not look like a man who had been in a life and death fight.  He answered:

    I may have not had marks but, my mind wasn’t really with it and I was shocked and scared. I don’t know if you’ve seen it but as soon as they said ‘You are charged with murder’ I was – I don’t know what I was like that night, I can’t tell you but now that I’ve seen it I was shocked.

12. In his closing address to the jury, the prosecutor put the following argument on the appellant’s failure to make any claim to JM and KM that he had acted in self-defence:

    So on Mr Sekrst’s version of what he told you on Friday, ladies and gentlemen, he lied to [KM], not stretching it, he said nothing to [KM] about being in a fight for his life.  He said nothing about Stephen Barton wanting to kill him.  He said nothing about Stephen Barton being enraged.  He said ‘Oh, you know, minding my own business, I go around, he’s there, not breathing’.

    …

    What it comes to is this: on the central issue in this trial, the central matter for you to determine, that is in what circumstances did Mr Sekrst compress Stephen Barton’s neck and kill him, he has lied about it. He lied about it to [KM]. So, on the most important question for you to determine, the only person who was there has lied to [KM] about it and has given you a completely different story.

    So what that means is that you should be really, really cautious about accepting anything he has to say about what went on in that room because he has lied about it. He lied about it to [KM].

13. The lie identified by the prosecutor is the appellant’s statement to KM that he first discovered the deceased on the floor after walking around the wardrobe which divided the room to investigate a noise.  The truth was that the appellant was involved in a violent physical struggle with the deceased which had left him motionless on the floor. 

    Ground 1 - Lies

14. The decision in Edwards v The Queen[1] deals with a lie in the sense of a false statement and not a misrepresentation by omission.   In this case, some care needs to be taken on the evidence used to identify the lie from which the jury may have reasoned to guilt. 

    [1] (1993) 178 CLR 193.

15. The bare failure to give an innocent explanation cannot amount to an implied admission.  A failure to give an explanation at the time of an event, only to provide one later, supports an inference of recent invention.  Therefore, one is less likely to believe that later explanation.  However, the mere rejection of an accused’s evidence leaves an absence of evidence which cannot be transformed into positive evidence of guilt.[2]  Moreover, in the absence of statutory intervention, it would be inconsistent with the presumption of innocence to infer guilt from a suspect’s mere silence. 

    [2]    Evans v Sparrow (1973) 6 SASR 519 at 529, 530-531.

16. The rejection of the appellant’s testimony that he acted in self-defence does not amount to proof that he did not act in self-defence.  The Judge expressly instructed the jury that if they rejected the appellant’s account entirely, they should disregard it and determine whether they were satisfied of his guilt beyond reasonable doubt on the prosecution evidence.  The effect of the rejection of the testimony of the accused on the evaluation of the prosecution evidence, and its sufficiency to exclude any reasonable possibility consistent with innocence, is a different question which does not arise on this appeal.[3]  

    [3]    Cf R v Baden-Clay [2016] HCA 35.

17. The relevant lie for the purpose of this ground of appeal is the appellant’s lie to KM that he discovered the deceased on the floor after hearing a noise and therefore the implication that he was not in any way involved in the events which caused the deceased’s death.

18. In Edwards Deane, Dawson and Gaudron JJ explained that, ordinarily, the telling of a lie will merely affect the credit of a witness but that, in limited circumstances, it may go further and amount to conduct which is inconsistent with innocence and, in that way, amount to an implied admission of guilt and, therefore, be evidence of guilt.  They held that when the telling of a lie by an accused, either in or out of court, amounts to an implied admission, the prosecution may rely upon it as independent evidence to ‘convert what would otherwise have been insufficient into sufficient evidence of guilt or as corroborative evidence’.[4]

    [4] (1993) 178 CLR 193 at 208-209.

19. Defining the circumstances in which a lie will increase the probability that an accused committed the offence charged so as to be evidence of guilt is problematic.  Deane, Dawson and Gaudron JJ held that in telling a lie ‘the accused must be acting as if he were guilty’.  It followed then, as their Honours observed, that the lie must be one ‘which an innocent person would not tell’.[5]  Their Honours held that it followed that:

    ·the lie must be deliberate because an inadvertent falsehood could not be indicative of guilt; and

    ·the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused and for that reason he is telling the lie.  Another way of saying this is that the accused’s lie springs from a consciousness or realisation of guilt.

    [5] (1993) 138 CLR 193 at 209.

20. Deane, Dawson and Gaudron JJ explained that the telling of the lie does not have to be proved to any particular standard of proof because it is used circumstantially with other evidence.  The jury may accept the evidence ‘without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt’.  Only when the lie is the only evidence of guilt, or is an indispensable link in the chain of prosecution evidence, is it necessary to prove its character as an admission of guilt beyond reasonable doubt.[6]

    [6] (1993) 178 CLR 193 at 210.

21. It follows that the deliberate telling of a lie on a material issue is evidence, as distinct from proof, of a consciousness of guilt which can be used as an item of circumstantial evidence from which guilt can be inferred, but if it is the only evidence against an accused or an indispensable link in a chain of evidence, any hypothesis other than guilt for the telling of the lie must be excluded.

22. Deane, Dawson and Gaudron JJ held that a jury should be told that a lie is only indicative of a consciousness of guilt if it is concerned with some circumstance or event connected with the offence (it relates to a material issue) and if it was told by the accused in circumstances in which the explanation is that he knew that the truth would implicate him in the offence.[7]  Their Honours held, therefore, that in a case where a lie is relied upon to prove guilt, the lie and the circumstances and events that are said to indicate that it constitutes an admission against interest should be precisely identified, and the jury instructed that they may take the lie into account only if they are satisfied,[8] having regard to the circumstances and events, that it reveals a knowledge of the offence or some aspect of it.[9]

    [7] (1993) 178 CLR 193 at 210.

    [8]    The word “satisfied” does not mean satisfied beyond reasonable doubt unless the lie is the only evidence or an indispensable link in the prosecution case.

    [9] (1993) 178 CLR 193 at 211.

23. Moreover, the jury should be instructed that there may be reasons for telling a lie apart from a realisation of guilt, e.g. panic, to escape an unjust accusation, to protect another, or to avoid a consequence extraneous to the offence.  In any of those circumstances the jury cannot regard the lie as an admission.[10]

    [10] (1993) 178 CLR 193 at 211.

24. In Zoneff v The Queen,[11] the High Court held that directions of the kind approved in Edwards need not be given if the prosecution does not rely upon the answers of an accused to found a submission that he had lied out of a consciousness of guilt.  Gleeson CJ, Gaudron, Gummow and Callinan JJ held that a direction may sometimes be given to the effect that it is for the jury to decide what significance the suggested lies have in relation to the issues in the case, but must also be warned against a process of reasoning to the effect that just because a person has lied about something that is evidence of guilt.

    [11] (2000) 200 CLR 234.

25. In Dhanhoa v The Queen[12] the accused, when questioned by police about a robbery, falsely denied meeting the victim in a hotel and going to his home.  However, on his trial, he gave an innocent explanation for his presence in the victim’s home.  The prosecution did not contend that the lies evidenced a consciousness of guilt.  Neither an Edwards nor Zoneff direction was sought by defence counsel, or given by the trial Judge.  Gleeson CJ, McHugh Gummow and Hayne JJ held that the omission of an Edwards type of warning had not caused a miscarriage of justice because the prosecution had not contended for that inference and there was no danger that the jury might have so reasoned.  Gleeson CJ and Hayne J said:

    [12] (2003) 217 CLR 1.

    [29]In final address, the prosecutor pointed to the differences between what the appellant had said to the police in September 1999, and what he had said in evidence at the trial.  The prosecutor did not put to the jury that what the appellant said to the police amounted to lies which indicated a consciousness of guilt, and no such possibility was put to the jury by the trial judge in his summing-up.  No directions of the kind considered in Edwards v The Queen were given, and none could reasonably have been proposed …

    [30]The appellant, in his evidence, gave an explanation of what he said to the police, and, in his summing-up, the trial judge reminded the jury of that explanation.  The appellant said that, when he was interviewed, he did not know what the police were talking about.  It was not until he was charged, and read the facts sheet, that he knew what was alleged to have occurred.  That was consistent with his evidence, and with the defence case at the trial.

    [31]The prosecutor cross-examined the appellant about the answers he had given to the police, suggesting that they were, at the least, evasive.  (There was a disagreement about exactly what was put by the prosecutor.  The trial judge, in his summing-up, first used, and then withdrew, the word "strange").  The trial judge said to the jury: 

    The Crown says that in [that] regard ... you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February.

    [32]In the context of the whole of the evidence, and the issues as they developed at trial, there was little to be made of what the appellant said to the police in September 1999, and a reading of the summing-up indicates that little was sought to be made of it.  The prosecutor was entitled to suggest, as he did, that there were aspects of the appellant's response that could be taken to reflect adversely on his reliability.  The matter did not go beyond that.

    [33]The facts of the case are quite different from those of Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt.

    [34]It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.  Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies.  The present was not such a case.

    (citations omitted)

26. McHugh and Gummow JJ held that the lie did not just undermine Dhanhoa’s credibility but was also capable of supporting an inference of consciousness of guilt even though the prosecution had not put its case in that way.  Nonetheless, and despite acknowledging that the jury may have reasoned from the lie to guilt, their Honours found that there had not been a miscarriage of justice:

    [59]It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police.  It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie.  But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused.  Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility.

    [60]However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police.  To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict".  We do not think that he has done so.

    (citations omitted)

27. The last two paragraphs of the prosecutor’s address reproduced at [34] above did not invite the jury to infer guilt from the appellant’s lie to KM. The prosecutor’s reference to the ‘central issue’ was a reference to the appellant’s evidence that he had acted in self-defence, which he was asking the jury to reject. True it is that a deliberate lie about a central issue may found an inference of guilt, but that is simply not what the prosecutor invited the jury to do. It can hardly be supposed that the jury knew of this esoteric aspect of the law of evidence and understood the words ‘central issue’ to be an allusion to the circumstances in which the law accepts that a lie can be used as evidence of guilt and then proceeded to so reason.

28. The appellant could not have forgotten or overlooked the struggle with the deceased in the short time which had elapsed.  Subject to an evaluation of the appellant’s explanation that his ‘mind wasn’t functioning’ it was open to the jury to find that the appellant lied deliberately.  The lie also related an issue so material that if the jury found that the lie was deliberate, the jury could draw an inference the appellant lied because he feared that the truth would implicate him.  It was therefore a lie which, together with other evidence, supported an inference of guilt.  It was also a lie of a kind that would naturally have lead the jury to infer guilt.

29. There is a real risk that the jury impermissibly reasoned to guilt from the appellant’s failure to claim that he had acted in self-defence when he was questioned by the nursing staff.  That risk is compounded in this case by the factors referred to in [111]-[116] of the reasons of Vanstone J.

1. In this case, the prosecution did not rely on the appellant’s lie inferring guilt.  Therefore, a direction including all of the elements described in Edwards was not necessary.  However, a direction of the kind sanctioned in Zoneff was required in order to avoid a miscarriage of justice.

2. I would allow the appeal on this ground.

   Grounds 2, 3 and 4 – Specific intent

3. In Alford v Magee the High Court referred with approval to the practice of the late Sir Leo Cussen in these terms:[13]

   [He] insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.  He held that the law should be given to the jury, not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.

   [13] (1952) 85 CLR 437 at 466.

4. In Pemble v The Queen Barwick CJ put the obligation of a trial judge to apply the law to facts in this way:[14]

   Whatever course counsel may see fit to take no doubt bone fide but for technical reasons in what he considers the best interest of his client, the trial judge must be astute secure for the accused a fair trial according to law.  This involves in my opinion an adequate direction both as to the law and the possible use of the relevant facts upon any matter which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

   [14] (1971) 124 CLR 107 at 117-118.

5. On the issue of specific intention the Judge directed the jury that the appellant ‘must have either intended to cause Mr Barton’s death or at the very at least must have intended to have caused him grievous bodily harm - that is, really serious bodily harm’.  The Judge explained that a murder need not be premeditated and that ‘an intention to kill or cause grievous bodily harm can be formed in an instant’.  The Judge then directed the jury that, in determining the appellant’s intent, they could consider all of the crime scene evidence, the testimony of witnesses about his behaviour immediately after the incident and the video footage of him after the event, but the Judge did not mention the evidence of the appellant’s psychotic symptoms.  The Judge continued:

   You cannot look into a person’s mind to determine what that person’s intention was when he performed a particular act. You can only look at what a person has said and done before, during or after and from that sometimes it is possible to conclude what their intention must have been at a certain time and here the time about which you must be certain is the time when the fatal injury was inflicted.

6. The Judge’s reference to ‘a person’ would naturally bring to mind a rational person and would not necessarily be understood as including a person with the appellant’s psychotic symptoms.  The Judge then reminded the jury of Mr Sekrst’s cross-examination and Dr Gilbert’s evidence about the cause of death but did not mention the evidence of the appellant’s psychotic symptoms.  The Judge continued:

   So you will take into account, members of the jury, the whole of that evidence when determining whether a person who inflicts the injuries, which you accept were inflicted on Mr Barton, and who manually compresses a person’s neck by either holding them in a headlock or placing both hands around the neck until they cannot breath, you will make up your own minds whether a person who does that intends at the very least to cause that person really serious bodily harm, but that element also must be proved beyond reasonable doubt.

7. That passage correctly directs the jury that a person’s intention can be inferred from his or her conduct.  However, it is the intention of the appellant which the prosecution had to prove and not just any person.  There was material evidence in this case that the appellant was exhibiting psychotic symptoms.  That evidence distinguished the appellant from most other persons on the question of the appellant’s intention, but it was not mentioned by the Judge.

8. After they had retired, the jury asked for a further explanation of specific intent.  The Judge directed the jury in largely the same terms in which she had directed them in the body of her summing up.

9. I acknowledge that the Judge’s general directions were broad enough to encompass questions of the effect of the appellant’s psychotic symptoms and that the Judge did refer to the evidence concerning the appellant’s psychotic symptoms in that part of her summing up which summarised for the jury the testimony of all of the witnesses in the case.  However there is a real danger that the jury discounted that evidence because of the Judge’s failure to draw their attention to it when addressing the mental element.  The jury ought to have been asked to consider whether it was possible that the appellant had not formed an intention to kill or cause grievous bodily harm because of his psychotic symptoms.   The jury may have given effect to the evidence of the objective indications referred to by the Judge without taking into account the countervailing medical and other evidence.  In short the Judge did not explain, to paraphrase Sir Leo Cussen, how the law as to specific intent applied to the evidence of the appellant’s psychotic symptoms.

10. The evidence of the appellant’s psychotic symptoms supports an inference that the appellant attacked the deceased because of some paranoid perception that the deceased was a threat.  If that were so, the appellant may have intended to kill or cause grievous bodily harm but it does not necessarily follow that he did.  Whether or not his paranoia generated such an intent on the one hand or a confusion of thoughts on the other was a question of fact to which the jury’s attention should expressly have been drawn. 

11. The appellant has demonstrated that there has been a miscarriage of justice.  I would allow the appeal on this ground.

12. The appellant makes an incidental complaint on this ground.  That is on the element of specific intent the Judge failed to direct the jury that the prosecution’s onus of proof, beyond reasonable doubt, meant that on the evidence there must not be any inference reasonably available that the accused did not have the intent to kill or cause grievous bodily harm.

13. In Knight v The Queen,[15] the High Court considered an appeal from a decision of the Supreme Court of Victoria dismissing the appellant’s appeal against his conviction on the grounds that the verdict was unsafe and unsatisfactory.  Mason CJ, Dawson and Toohey JJ observed[16] that a direction that the accused should only be convicted on the basis of an inference if there were no other inferences or, inferences which were favourable to the appellant, reasonably open upon the facts is often called for in cases reliant on circumstantial evidence.  Their Honours went on to observe that the direction:

    [i]s no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt and the question of which it draws attention – that arising from the existence of competing hypotheses in inferences – may occur in a limited way in a case which is otherwise one of direct rather than circumstantial evidence. 

    Their Honours observed that a circumstantial case could arise even when there was direct evidence of the actus reus if there was a question as to the accused’s state of mind.

    [15] (1992) 175 CLR 495.

    [16] (1992) 175 CLR 495 at 502.

14. However, because the only appeal ground was the unreasonableness of the verdict, the Court had no occasion to pass on whether it is a miscarriage of justice not to give a direction in that form.  The High Court considered the question again in Cutter v The Queen,[17] which was also an appeal against a conviction on the ground that the verdict was unreasonable and not supported by the evidence.

    [17] (1997) 94 A Crim R 152.

15. Neither decision is authority for the proposition that a trial judge should give a ‘no other reasonably available inference’ direction when directing a jury on a mental state element.  It is difficult to see how a failure to ‘amplify’ the orthodox directions on onus of proof could ever result in a miscarriage of justice.  Be that as it may the critical requirement, on the evidence and issues in this case, was to draw the jury’s attention to the evidence of the appellant’s psychotic symptoms.  Whether that was done by asking whether the prosecution had proved the required specific intent beyond reasonable doubt or, alternatively, by asking whether there was a reasonable possibility that the appellant’s psychosis was such that he had not formed the intent, matters little.

16. On the facts and circumstances of this case, the prosecution did not contend that Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) had any bearing on the directions which should be given on the specific intent element of murder. Nonetheless, I make the following observations in passing on the issue because it may require consideration by trial judges in similar cases.

17. The conduct referred to in s 269C of the CLCA is the conduct which constitutes the objective elements of the offence. A defendant who suffers from a mental impairment and satisfies any one of the criteria in s 269C of the CLCA may, or may not, have a criminal intention when engaging in that conduct. Conversely, a defendant may suffer from a mental impairment which affects his or her capacity to form an intention yet may still be competent to commit an offence because subparagraphs (a), (b) and (c) are not satisfied.

18. This analysis leaves what might be described as a theoretical Alsatia in which a mental disorder may lead to a defendant’s acquittal of an offence requiring specific intent but without the protective supervision of the Part 8A regime. The problematic relationship between the defence of insanity and the mental element of offences was first encountered with respect to the element of voluntariness.

19. There is a rebuttable common law presumption that a person is mentally competent to commit an offence.  A person who is mentally competent to commit an offence must be taken to have willed his or her acts.[18] 

    [18]   R v Radford (1985) 42 SASR 266 at 272 per King CJ.

20. In R v Joyce,[19] this Court held that if the defence calls evidence to show that an accused acted involuntarily and that evidence is capable of raising a question as to mental competence, insanity (as the defence was then termed) must be left to the jury.  In R v Radford,[20] King CJ discussed the complexities of leaving both voluntariness and insanity to a jury in a single trial of all of the issues. 

    [19] [1970] SASR 184.

    [20] (1985) 42 SASR 260 at 273-276.

21. In Hawkins v The Queen,[21] the High Court held that such evidence was nonetheless admissible on the element of specific intention:[22]

    [21] (1994) 179 CLR 500.

    [22] (1994) 179 CLR 500 at 511-517.

    Cox J was of the opinion that the medical evidence (including a passage which Underwood J had held to be inadmissible) was capable of sustaining a finding of insanity under s.16 and was therefore admissible. But his Honour thought that, if a finding of insanity were not made, the appellant “must be taken to have a mind sufficiently sound as to have the capacity to understand the physical character of his act and to know that it was one which he ought not to do, and to have the capacity to resist an impulse to do the act”. His Honour found it difficult to understand how the extinction by mental disease of a capacity to form one of the intents specified in s. 157(1)(a) or (b)“could be anything but inconsistent with the existence of the mental capacity the law presumes in the absence of proof to the contrary”. Citing what Dixon J. said in R. v Porter, his Honour was of the opinion that, if the jury were not satisfied that the appellant had not been able to reason with “a moderate degree of sense and composure”, there was no room left for them to consider Professor Jones’ evidence “which is inconsistent with that premise in respect of the question whether he did form [the] intention” of causing death. Accordingly, his Honour was of the view that Professor Jones’ evidence was irrelevant to the inference of intention which the jury “might properly infer from the shooting itself, if they thought it right to do so”.

    Crawford J. came to the same conclusion, emphasizing the effect of the presumption of sound mind in s. 15. His Honour agreed with O’Brien J. in Reg. v S. who had said —

    “if the form in which the nature and quality of his act is raised is that, because of his insanity, he did not appreciate what he was doing, so that he did not intend the consequences of his act, it is upon him to prove that specific claim to lack of mens rea due to insanity.”

    Crawford J. noted the distinction between cases in which the defence had unsuccessfully sought to use evidence of mental disease to negative voluntariness and the present case where evidence of mental disease was sought to be used to negative intent. However, just as the jury who were not satisfied that an accused had discharged the onus of proving insanity were precluded from taking mental disease into account in determining voluntariness, so the jury “must not consider the same explanation [of mental disease] when judging whether the existence of the requisite specific intent has been proven beyond reasonable doubt”.

    With respect, the approach of the majority overlooks the distinction between the operation of ss. 13 and 16 in precluding criminal responsibility for doing an act and the prescription (as an element of an offence) of the specific intent with which an act is done. Although the evidentiary presumption of sound mind is of general application, there is a reason why rebuttal of that presumption by evidence of mental disease, which is necessarily admissible on the issue of insanity, cannot be taken into account in determining whether an act is voluntary and intentional. Mental disease, by itself, is no excuse for the doing of an incriminated act but s. 16 provides an excuse (“not criminally responsible”) when, and only when, the consequence and measure of the mental disease are as prescribed by pars (a) and (b) of s. 16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind. If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by pars (a) and (b) of s. 16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. In such a case, the actor is liable in any event to conviction for an offence constituted by the doing of the act but is liable to conviction for a more serious offence only if the prosecution establishes the intent which is the additional element in the more serious offence. The presumption of sound mind is not the equivalent of a presumption that a person intends the natural, or natural and probable, consequences of his act. What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty. The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it. In Schultz v The Queen, Burt C.J. pointed out that the intent of an accused is not necessarily the intent that might be attributed to an ordinary person in the circumstances but the intent of the accused himself. He said:

    “For the purposes of this case the only question is whether the intellectual impairment of the appellant was relevant to and ought to have been admitted as part of ‘the whole of the evidence’ bearing upon the question of the appellant’s intent.

    Unless there are authorities to the contrary, in my opinion the evidence was relevant and, when led by the appellant, admissible. Once it be acknowledged that there is no legal presumption that a man intends the probable consequences of his acts and that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, as it seems to me, all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have a bearing upon the operation of his mind are relevant to that finding.”

    …

    To say that evidence of mental disease is admissible on the issue of intent is one thing; the strength of the evidence is another. If the evidence of mental disease does not establish that the accused was incapable of knowing that the act was “one which he ought not to do” (s. 16(1)(a)(ii)) or, under the common law, was incapable of knowing the nature and quality of his act, that evidence may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances. But there is no necessary inconsistency between mental abnormality and the existence of a specific intent.

    …

    In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s. 13 or to s. 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused’s mental condition at the time when the incriminated act was done fell short of insanity under s. 16.

    It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was “voluntary and intentional” within the meaning of those terms in s. 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent — relevantly, the intents prescribed by pars (a) and (b) of s. 157(1) of the Code. The Courts below were in error in holding that the evidence of Dr. Sale and Professor Jones was inadmissible on the issues of those intents.           

    (citations omitted)

22. The common law presumption is now statutorily defined by s 269D of the CLCA and can be rebutted only by proof of mental incompetence pursuant to investigation per the terms of Part 8A of the CLCA. Part 8A of the CLCA has removed the theoretical and practical problems discussed by King CJ in Radford.[23]

    [23]   See Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 258-261.

23. Section 269E(1)(b) of the CLCA empowers a trial judge to invoke the Part 8A procedure even if the accused does not raise it. The judge may do so if it is in the interests of the proper administration of justice. For example, an accused may seek to cast doubt on his or her ability to form the requisite specific intention by reference to a psychiatric disorder which also affects his or her competence to commit an offence. In such a case, it will generally, if not invariably, be in the interests of justice for the judge to undertake a s 269E examination. If the objective elements of the offence, which exclude voluntariness and the mental state elements of the offence, are proved and evidence establishes that the accused was mentally incompetent, orders will be made pursuant to Part 8A.

1. Section 269F prescribes the procedure a court must adopt if it decides to proceed first with a trial of the defendant’s mental competence and s 269G the procedure if the objective elements are to be tried first.  In the former case if the court is not satisfied that the defendant was mentally incompetent then it must record a finding that the presumption of mental competence has been displaced and proceed with the trial in the normal way.[24]   That trial will be a trial of both subjective and objective elements.

   [24]   Criminal Law Consolidation Act 1935 (SA) s 269FA(3)(b) and s 269GB(3)(b).

2. In the latter case if the Court first finds that the objective elements have been proved beyond reasonable doubt, it must record a finding to that effect.  If the court then goes on to find that the presumption of mental competence has not been displaced, the trial must proceed in the ordinary sense but in that trial the objective elements are to be accepted as established.[25]  That trial will therefore be limited to the subjective elements, and any defence as defined, of the charged offence. 

   [25]   Criminal Law Consolidation Act 1935 (SA) Section 269GB(4)

3. In either case voluntariness will be presumed as it is when the Part 8A procedure is not invoked at all unless the defendant is relying on a condition not falling within the definition of mental impairment. Save for that exception, voluntariness is not in issue because, as the High Court explained in Hawkins, if the defendant understood the nature and quality of the basic acts by which the offence was committed, those acts were, by definition, voluntary.  However an element of specific intent may still be in issue for the reasons given in Hawkins. 

4. It follows that when a trial proceeds in the ordinary way there will be no occasion to give the jury any directions on mental competence. In any event if the Part A procedure has been invoked, and proceeded before a jury, the jury will have received those directions in that part of the trial in which mental competence was determined. If the Part 8A procedure is not invoked at all, it can only be because the prosecution, the defence and the judge have decided that there is no reason to investigate it. Therefore, in those cases too, there will be no occasion to give the jury any directions on mental competence. However, this analysis shows that trial judges must be astute to the exercise of their responsibility pursuant to s 269E(1)(b) of the CLCA.

5. If the tribunal of fact is left in doubt about the accused’s specific intent by reason of psychiatric evidence, the accused must be acquitted of any charge of which a specific intention is an element.  But the accused may be convicted of a lesser charge which requires only a basic intent.

6. If the accused is acquitted entirely, the provisions of Part 5 of the Mental Health Act 2009 (SA) may well have application to ensure the treatment of the accused and the protection of the community.

   Ground 5 – Self-defence

7. On the question of self-defence, the Judge first explained the nature of self‑defence without reference to the onus of proof.  There can be no criticism of introducing the topic in these terms.  It would hinder a proper understanding of the substantive elements of self-defence to complicate it, from the outset, with the double negatives necessary to explain the onus.  However, having introduced the topic of self-defence in onus-neutral terms, the Judge continued:

   Already you will see, members of the jury, the danger that I have averted to in discussing self-defence, in making it sound as if an accused has to prove something. He does not have to prove this, the prosecution has to disprove it and that is why I have put that note at the bottom of No.4 there ‘It is the prosecution which must prove that the accused did not act in self-defence’. One has to constantly remind oneself that the prosecution has to prove that the accused did not act in self-defence.

   Moving back to the law though, the threat we are concerned with must be an immediate one, it must have been a threat of violence to Mr Barton by the accused, or indeed an actual assault. Now, the accused has said he acted in response to Mr Barton coming at him as he went from the toilet back to his bed and throwing a punch at him. If that happened clearly that would justify some action in self-defence, but as I said to you there are two aspects, two limbs to the law relating to self-defence; the first is concerned with the need to use force at all, it focuses on the accused’s genuine belief that the force was needed for a defensive purpose. The second limb introduces this concept of proportionality as between the threat that the person faced and his reaction to it. The second limb poses the question was the accused’s reaction to the threat reasonably proportionate to that threat.

8. The appellant complains that in the second paragraph of those directions, the Judge erred in not expressly linking the question of proportionality to the accused’s perception of the changes he faced.  However, the paragraph is clearly premised on an acceptance, at least as a reasonably possibility, of the appellant’s account of the attack on him by the deceased:  a reference to the accused’s perception would have been superfluous.  That complaint must be dismissed. 

9. The Judge continued: 

   This concept of reasonable proportionality does not imply that the force used by the person being attacked cannot exceed that used against him. It can. There may be no other means open to the person under attack than to defend himself. A person under attack cannot be expected to finely measure what he needs to do in order to ward off a threat or a blow. It is all a question of what is reasonable in the circumstances and in respect of that second limb of the test of self-defence it is what you, as 12 reasonable men and women, evaluate as to whether the response of the accused to the threat which he genuinely believed he faced was proportionate.

10. In the directions which followed, the Judge again repeatedly referred to the onus of proof in correct terms. 

11. However, the appellant complains that the reference to 12 reasonable men and women impermissibly invited the jury to judge the question of proportionality by reference of how they might have perceived the threat.  The appellant relies in this respect on Stingel v The Queen.[26] That case concerned the codified provocation defence of the Criminal Code of Tasmania. The passages relied on stress the importance of assessing the gravity of the provocation conduct from the accused’s perspective. So much can be accepted also for the perception of the gravity of the threat for the purposes of self-defence. However, the Judge’s direction does not invite the jury to determine the question of proportionality from their personal perspective of the gravity of the threat. To the contrary, the passage expressly refers to the threat which the appellant ‘genuinely believed he faced’. The reference to ‘12 reasonable men and women’ is no more than a reference to the jury. In a trial by jury, the jury is the tribunal of fact and must determine the question of proportionality. The Judge’s observation simply states the obvious, that the jury are 12 reasonable men and women who constitute the tribunal of fact.

    [26] (1990) 171 CLR 312 at 326.

12. The Judge’s directions continued:

    At the risk of repetition, I remind you once again that it is the prosecution that must prove that the accused did not act in self-defence. If it is reasonably possible - and that is really the other side of the coin of the question of beyond reasonable doubt - if it is reasonably possible that the accused acted in self-defence as I have defined it to you, then the accused is not guilty of anything.

    As you know the accused’s defence in this matter is that he acted in self-defence throughout. He contends that the injuries inflicted by him on Mr Barton were in defence of himself. He says he was engaged in a struggle for his life. It is a matter entirely for you as to what facts you are prepared to find members of the jury beyond reasonable doubt. I am not wanting to comment on the facts here, I am just giving you directions of law in the context of the evidence you have heard.

    So in deciding whether the accused is entitled to be acquitted of the charge of murder, you must consider this issue of self-defence in two stages: the first stage requires you to look solely at the state of mind of the accused. You must not look at it from the point of view of what someone else might have done, you or someone else, you look at it solely from the point of view of the accused and you will need to ask yourself the question ‘Did the accused genuinely believe that his actions were necessary and reasonable to defend himself from Mr Barton?’. If there is a reasonable possibility in your minds that the accused genuinely believed it was necessary to act as he did, depending on the view of the evidence you take about what he did, and for the length of time that he applied that force, then you will go on to consider the second stage of self-defence and that is whether applying neck compression to Mr Barton was a proportionate response to the threat which the accused genuinely believed he faced.

    That second stage is sometimes described as the objective part of the self-defence, because it is concerned with what you, as 12 reasonable men and women, regard as a reasonably proportionate response to the threat and not what the accused or anyone else thought about it.

13. I acknowledge that, in the last paragraph, in relation to the objective test, the Judge again referred to the jury as 12 reasonable men and women who must determine the proportionality of the response.  However, her Honour’s express reference to what the jury regarded as reasonably proportionate is to be read with the preceding paragraph, and the earlier similar reference to the question, which directed the jury to undertake that assessment on the basis of the threat which the accused genuinely believed he faced.

14. The Judge continued:

    If at the end of your deliberations there is a reasonable possibility that the accused genuinely believed it was necessary and reasonable to apply a neck compression to Mr Barton’s neck in the way that you accept - whatever you accept is a matter for you - and if you find that his actions were reasonably proportionate to the threat he genuinely believed he faced, then the accused would be not guilty of anything.

    On the other hand, if you are satisfied beyond reasonable doubt that the accused did not genuinely believe that it was necessary and reasonable to compress Mr Barton’s neck for the length of time that he did, then these acts were unlawful and the question of self-defence would disappear from the trial. In those circumstances the fourth element of the crime of murder would have been proved and that fourth element is that the act which caused the death of Mr Barton must have been unlawful.

    If you consider it reasonably possible that the accused did genuinely believe that it was necessary and reasonable to compress Mr Barton’s neck by whatever means he did, but you are satisfied having regard to the circumstances as the accused genuinely believed them to be that his actions were not reasonably proportionate to the threat he believed he faced, then and only then would a verdict of manslaughter by use of excessive force be justified. And you will see on p.2 of that memorandum that I set out there manslaughter - more than proportionate force used in self-defence. And I have summarised it in that direction.

15. It is accepted that, in the first of those paragraphs, the Judge’s direction reverses the onus of proof.  However, in the context of the preceding directions the jury, if they noticed the reversal at all, could only have understood it to be a slip of the tongue.  Moreover, the paragraph which immediately follows correctly directs the jury ‘if you are satisfied beyond reasonable doubt that the accused did not genuinely believe that it was necessary and reasonable...’.  In the final paragraph, the jury is again correctly directed that, to return a verdict of guilty of manslaughter, rather than acquit the accused altogether, they must be satisfied that the accused’s actions were not proportionate.  Those paragraphs provide a complete and effective antidote to the earlier slip on the onus of proof.

16. The Judge has not erred in law in the totality of the directions on the onus of proof.  If, contrary to that conclusion, the isolated sentence on which the appellant relies is to be regarded as an error of law, I would apply the proviso, because the jury must have well understood the onus of proof from the summing up as a whole.

    Conclusion

17. I would allow the appeal and remit the matter for retrial.

18. VANSTONE J:         I would allow the appeal.I have had the benefit of reading the reasons of the Chief Justice.  His Honour has found that grounds 3 (in part) and 5 are not made out.  I respectfully agree with those reasons.  However, I differ from the reasons of the Chief Justice in relation to the issue of directions on specific intent and, in relation to the treatment of lies, I prefer to provide my own reasons.

    Specific intent

19. The Chief Justice would allow the appeal on the grounds which concern the directions given on the topic of the appellant’s mental condition and its bearing on the mens rea for murder.  This is raised in grounds 2, 3 (in part) and 4.  I do not agree that the directions given were inadequate in the way put forward.  In my view, the directions were apt to alert the jury to the relevant legal and factual issues.  There was no complaint about them at trial by Senior Counsel then acting for the appellant.  Having said that, I think this was a difficult case because such evidence as there was of the appellant’s mental condition raised a question of his mental competence to commit the offence charged.

20. The evidence about the appellant’s mental state came both from prosecution witnesses and from the appellant.

21. Dr Giannakoureas, a psychiatrist, saw the appellant within 24 hours of his detainment on 8 August 2014 under the Mental Health Act 2009 (SA). He found the appellant to be vague, perplexed and lacking a grasp of his circumstances. The doctor was unable to obtain a lucid history from him as to what had led to his admission. He gave “concrete, superficial” answers. He did not have a grasp of his situation. Dr Giannakoureas “suspected” the appellant was “maybe suffering from a psychotic illness” and this, together with information about the appellant’s psychiatric history, led him to confirm the detention order. That provisional opinion was based on the doctor’s observations on that day (as outlined already), the “collateral history” received from the appellant’s family, and on his behaviour in the Emergency Department prior to the witness seeing him.

22. Dr Giannakoureas saw the appellant again on 12 August, after the death of Mr Barton.  On this occasion, he found him to be “surprisingly vague and almost unconcerned”.

23. The jury had a general explanation of the nature of psychosis and psychotic symptoms by Dr Warhurst, in the context of his role as the treating psychiatrist of Mr Barton.

24. An enrolled nurse, “N”, was the appellant’s one-on-one nurse while he was in the Emergency Department of the Noarlunga Hospital on 10 August 2014.  She described the appellant as withdrawn and difficult to engage.  She said he lay on his bed facing the wall and would pull his hood over his eyes, or cover his head with a blanket.  She noticed that, while lying on his bed, his foot would twitch in a repetitive movement.

25. “D”, a clinical nurse, dealt with the appellant in the early evening of 11 August 2014, when he was admitted to Morier ward, where he was to share a room with the deceased.  Nurse D said that the appellant was polite and cooperative and did not seem to be agitated or distressed.  There were several checks on the two men in the ensuing hours, which were uneventful.  The incident occurred at about 1 am on 12 August 2014.

26. In his evidence, the appellant said that in the preceding weeks he was feeling wary, paranoid, anxious and withdrawn.  He said that, prior to and at the time of being admitted to the Noarlunga Hospital, he was afraid of sleeping and so he tapped his hands or feet to keep himself awake.  The appellant was taking anti‑psychotic medication, and was given a dose at about 9 pm, although there was no evidence that the level in his blood was consistent with the prescribed dose. 

27. The evidence relating to the appellant’s mental state was properly before the Court as it was relevant to his defence of self-defence. Aspects of it were relevant to an evaluation of his evidence that he was attacked by the deceased and punched to the face and chest and relevant to the question whether the appellant genuinely believed that what he did was necessary and reasonable for a defensive purpose. It was also relevant, in a general way, to the question of intention. Evidence that he was vague or anxious could conceivably bear on whether an inference that he intended to kill could be drawn. However, that the appellant was possibly suffering from a psychotic illness and possibly harboured irrational fears, had the capacity to undermine the presumption given in s 269D of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’).

28. Part 8A, Division 2 of the CLCA provides a regime which regulates the way in which the issue of mental competence is dealt with in the criminal courts. If the defendant raises a defence of mental incompetence, or the court decides that his mental competence should be investigated, then that question is separated from the remainder of the trial and considered by the court. If that path is not taken, then the accused person’s mental competence to commit the offence is presumed. That means that it is presumed that the accused knows the nature and quality of his conduct, knows that it was wrong, and was able to control the conduct. The presumption is irrebuttable. The relevant legislation is as follows:

    Mental competence to commit offences

    269C—Mental competence

    A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—

              (a)         does not know the nature and quality of the conduct; or

              (b)         does not know that the conduct is wrong; or

              (c)         is unable to control the conduct.

    269D—Presumption of mental competence

    A person's mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.

    269E—Reservation of question of mental competence

    (1)     If, on the trial of a person for an offence—

    (a)      the defendant raises a defence of mental incompetence; or

    (b) the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice,

    the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial.

    (2)     The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant.

    (3)     If, at the preliminary examination of a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial.

29. In circumstances where the accused person does not raise a defence of mental incompetence and there is otherwise no investigation, any evidence going to the accused’s mental state which might tend to undermine the s 269D presumption must be treated with great care. The danger is that, without incurring the consequences of entering into the Part 8A regime, the accused person might achieve a benefit from presenting evidence which undermines the presumption. That benefit could be, conceivably, a complete acquittal. That could have occurred here if the jury thought it reasonably possible that, although not in fact under attack, the appellant genuinely believed himself to be so, and that the steps he took were, in the circumstances as he genuinely believed them to be, reasonably proportionate to the perceived threat. Such a scenario directly subverts the s 269D presumption.

1. In Hawkins v The Queen (1994) 179 CLR 500, the High Court held that a trial Judge dealing with a charge of murder under the criminal code (Tas) was wrong to exclude evidence of mental disease from a trial on the general issue, because it was relevant to intention. No defence of insanity had been raised. The Court said that, while such evidence might have been inadmissible on the question of voluntariness, it was admissible on the question of specific intent. There, the codified insanity provisions provided an excuse only where mental disease rendered an accused person incapable of understanding the physical character of his act, or its wrongfulness, or where his actions preceded from irresistible impulse: s 16 Criminal Code (Tas). 

2. In my view, for some purposes there is a relevant difference between the Tasmanian code provisions there under consideration and Part 8A of the CLCA. The scope of mental competence under Part 8A is wider than either insanity under the common law or the concept of criminal responsibility under the Tasmanian code. As Duggan J said in Question of Law Reserved (1997) 70 SASR 251 at 253:

   The procedure which the Act provides for dealing with these issues represents a significant departure from the common law procedure whereby, in a case where insanity was raised, all issues were dealt with at the same trial. The new procedure for dealing with mental competence to commit an offence identifies three issues which may call for determination, namely, the objective elements of the offence, the subjective elements of the offence and the accused's mental competence to commit the offence.

   A “subjective element” of an offence is defined as “voluntariness, intention, knowledge or some other mental state that is an element of the offence”.

   An “objective element” of an offence is defined as “an element of an offence that is not a subjective element”.

   Having discussed Hawkins, Duggan J said at 260-261:

   These cases explain the inspiration for excluding the consideration of some elements, including voluntariness, from certain stages of the procedures set up under the new legislation, although if the word "intention" in the definition of "subjective element" is to be given a wide meaning, the amendments take the matter further than Hawkins' case would allow.

   On a trial of an accused person’s mental competence, the question of specific intention will be determined along with voluntariness within that part of the process concerned with mental competence, as opposed to on the trial of the objective elements.  However, while, as here, the trial is proceeding on all issues in the usual way, evidence of mental disease is potentially relevant to all issues except voluntariness, in accordance with Hawkins.

3. In my view, the danger referred to earlier was present in this case. It was possible that the jury might have used the evidence that the appellant was vague, perplexed and unable to grasp his circumstances, and possibly suffering from a psychotic illness as undermining the s 269D presumption of mental competence. If used in that way, the jury might have entertained a reasonable possibility that the appellant had acted in genuine self-defence. On the other hand, if the jury rejected self-defence, it was entitled to consider the evidence of the appellant’s state of vagueness and perplexity as possibly bearing on formation of specific intent, although not on voluntariness. I consider it would have been appropriate for the Judge to explain to the jury the machinery of Part 8A of the CLCA and to explain the limits of the relevance of the evidence with respect to all of the elements of murder.

4. Nonetheless, it is apparent from the jury verdict that the jury did not misuse this evidence on the question of self-defence.  The appellant’s evidence of acting in self-defence was rejected.  Upon a consideration of specific intention, the evidence of possible psychosis was likely to be seen by the jury as explaining the appellant’s actions, by providing a motive to kill the deceased.

5. Consequently, I find that there was no failure to apply the directions of law to the facts;  but I consider there should have been an explanation of the law relating to mental competence and the presumption.  The absence of that explanation could not have disadvantaged the appellant in this trial.  Without saying more, I move to ground 1, concerning lies attributed to the appellant.

   Lies

6. There were two aspects of the evidence in this trial which, in my view, presented an acute problem to the defence.  The first was that, when nurse “J” entered the room, the appellant had his foot on the deceased’s neck, and the second was that, when he had the chance, the appellant failed to mention to any person in authority his claim that he acted in self-defence; and indeed led nurse K to believe that the deceased’s condition had nothing to do with him.  K gave this evidence at t/s 120:

   QDid you have any conversation with him in the lounge room of the closed ward.

   AWhen I took him through into the air lock I just asked [the appellant] what happened.

   QDid he reply.

   AHe just said ‘I heard a bang, I went round the other side of the wardrobe.  I saw him lying there, he wasn’t breathing’ and he said ‘I’ve got really weak arms so I was using my foot to get him to breathe again’.

7. The sting in the second matter was not just the denial of involvement, but the failure to mention to either J or K his subsequent claim of being attacked;  the very thing the appellant relied on in court 18 months later.  Had there been an innocent explanation for the deceased’s condition, then it is likely that the appellant would have raised it, particularly with K, in circumstances where he had moved away from the room where it happened and away from the nurse who had seen his foot on the deceased’s neck.  I note that just prior to the summing up being delivered, the jury asked to be given the appellant’s “police statement from the night of the incident about what happened”.  The jury was told that there was no evidence that the appellant made a statement, and no obligation upon him to have done so.  Plainly, the jury was interested to see when the claim of self-defence was first raised.

8. Unfortunately, although it was not put to the appellant in cross‑examination that he lied to K about the incident, it was so put to the jury in prosecuting counsel’s address.  What was, perhaps most significantly, an omission to mention a defence was labelled as lies.  For example, at t/s 362 ff:

   So on Mr Sekrst’s version of what he told you on Friday, ladies and gentlemen, he lied to [K], not stretching it, he said nothing to [K] about being in a fight for his life.  He said nothing about Stephen Barton wanting to kill him.  He said nothing about Stephen Barton being enraged.  He said ‘Oh, you know, minding my own business, I go around, he’s there, not breathing.’

   ...

   What it comes to is this:  on the central issue in this trial, the central matter for you to determine, that is in what circumstances did Mr Sekrst compress Stephen Barton’s neck and kill him, he has lied about it.  He lied about it to [K].  So, on the most important question for you to determine, the only person who was there has lied to [K] about it and has given you a completely different story.

   ...

   The only person who tells you that ‘I went to the toilet.  I came out and there he was and he hit me’ is a man who has lied about it, he lied about it to [K].

   In his final address, defence counsel did not grapple with this submission, probably thinking that the less said about the things the appellant related or failed to relate to K the better.  The Judge did not give a lies direction or mention possible explanations for the false account given to K.  But that left the jury without guidance as to how to approach the matter.

9. I have already observed that, because no explanation about the relevance of the appellant’s mental state and the applicable law was given, the jury was left without clear instruction on how to use the evidence of his psychiatric history, his status as a detainee in a psychiatric facility and his odd behaviour.  The jury could have been invited to evaluate the claim of simply finding Mr Barton on the floor and the failure to mention self-defence in light of the appellant’s situation as a detainee, his anxiety, his withdrawn state and his suspiciousness.  Instead, the jury was told by counsel, without contradiction, that he was a liar.

10. The question arises whether the lie to the effect that the appellant had nothing to do with the deceased’s condition can be seen to have emanated from a consciousness of guilt.  Importantly, at the stage of K’s conversation with the appellant he was not under suspicion by anyone, although he might have felt himself to be so. 

11. In my opinion, the accused’s lie to the effect that he had nothing to do with the deceased’s condition could be seen as indicating a realisation of guilt.  That is, it was capable of demonstrating that the appellant understood that the truth would implicate him.  At least at that time the appellant felt unable to give an innocent explanation of the event. 

12. It is true that the prosecution did not suggest that the false statement demonstrated consciousness of guilt, and that neither defence counsel nor the Judge perceived counsel to be characterising the lies in that way.  However, I think there was a real danger that the jury might have added the lie to what I see as the equally important matter – failure to mention to either J or K any attack by the deceased – and might have failed to fully consider the appellant’s lack of equilibrium, anxiety and the impact of the environment he was in when evaluating what he said and failed to say at that time.  While I consider that the appellant’s conduct immediately after the event could be seen as demonstrating a consciousness of guilt, there was a danger of the jury too readily treating it as such, absent a warning of the mitigating considerations.  Coupled with my perception that the jury might have been perplexed by how to bring to account the appellant’s possible psychotic state, this leads me to the conclusion that the trial miscarried.

13. I have considered whether the appellant’s conviction for murder was inevitable as the evidence stood.  There are strong grounds for arguing that it was.  However, in the end I am not prepared to say there was no substantial miscarriage of justice.

    Conclusion

14. I consider that a miscarriage of justice resulted from the way in which the topic of lies was raised and dealt with by counsel, coupled with the absence of any lies direction or any direction drawing the jury’s attention to possible explanations for the appellant’s false account and his failure to assert that he had been attacked.  I do not consider that the proviso should be applied.

15. I would allow the appeal, quash the conviction and order a new trial.

16. BAMPTON J:           I agree with the Chief Justice’s reasons.  I would allow the appeal, quash the conviction and order a new trial.