R v Todd Leonard Clark No. SCGRG 93/174 Judgment No. 4009 Number of Pages -6 Appeal and New Trial

[1993] SASC 4009

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Appeal and new trial - Petitioner (under CLCA 369) convicted of rape on woman's uncorroborated evidence - Fresh evidence from psychiatrist that prosecutrix suffering from longstanding antisocial personality disorder, a recognised diagnostic category, which expresses itself in a chronic inclination to lie - Evidence admissible at trial - Convictions set aside - Whether new trial should be ordered - Petitioner convicted on second trial after jury in first trial had failed to return a verdict - Whether public interest requires a fresh trial - Relevant factors - Acquittal entered. Criminal Law Consolidation Act 1975 s.353. Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627, applied.

HRNG ADELAIDE, 17 and 18 June 1993 #DATE 18:6:1993
Counsel for appellant:     Mrs M E Shaw
  with Mr A D Byrne
Solicitors for appellant:    Bartel Hall and Byrne
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public Prosecutions (SA)

ORDER
Appeal allowed, new trial ordered.

JUDGE1 COX J This is a petition referred to the Full Court under s.369 of the Criminal Law Consolidation Act. The background to it is an allegation of rape and attempted rape made by a young woman in her early twenties in July 1990. As a result, the petitioner was arrested and charged with rape and attempted rape and, in due course, committed for trial. He came before Zelling J and a jury in this court in May 1991 but the jury was unable to agree upon a verdict. The defence raised by the petitioner was consent. 2. The retrial was before Millhouse J in September 1991 when, by a majority, the petitioner was convicted on both counts. He was sentenced by the learned judge to five years' imprisonment on each count, concurrent, with a non-parole period of three years and nine months. He appealed to the Full Court against that conviction but in December 1991 his appeal was dismissed. 3. In February 1993 he presented a petition to her Excellency the Governor seeking a review of the convictions on the ground of fresh evidence. That, as I have indicated, was in due course referred to this court. 4. A good deal of material has been put before us from experts and lay witnesses. That fresh evidence, as it is, has been assembled since the trial and, if accepted, would tend to cast doubt upon the soundness of the jury's verdict. 5. The rules governing the reception of fresh evidence at the appeal stage in this jurisdiction are well settled. They are summarised by Duggan J in the case of Winslett, 22 December 1992, CCA. 6. We have had the benefit of the submissions of Mrs Shaw for the petitioner and Ms Abraham for the Crown, both as to the evidence and as to the rules relating to it. The evidence falls into two categories. First, there is the expert evidence of Professor Lawrence, a senior and experienced psychiatrist who has interviewed the young woman, who made these allegations, and has expressed very clear views about her mental condition. After a lengthy clinical examination and a consideration of other medical reports, Professor Lawrence formed the view that the rape witness, as I shall call her, suffered from an antisocial personality disorder. This is a category that is recognised and described in the latest edition of the Diagnostic Criteria of the American Psychiatric Association, familiarly known as DSM-III-R. Its alternative name, or nickname, is sociopath, and I take it to be what was once called the category of the psychopath. To be so classified the patient has to exhibit several of a number of characteristics set out in the diagnostic criteria, and in the case of this witness that test was, in the opinion of Professor Lawrence, amply satisfied. 7. For present purposes the important feature of the diagnosis of this particular witness was her persistent disregard for the truth. In the body of her report, and giving a good number of examples to support it, Professor Lawrence described the witness as 'distinctly untruthful'. Elsewhere she remarked upon her 'marked capacity for untruthfulness, deceit, as well as stealing and other forms of dishonesty. I have the greatest difficulty in determining which of her statements is reliable'. In summarising the effect of her clinical examination and review of the documents she said, 'She has no regard for the truth and, in my opinion, she is capable of conning others for personal profit'. So, for these and other reasons, Professor Lawrence considered that she was suffering, at the time of the examination in December 1992, from this antisocial personality disorder which expressed itself in a chronic inclination to lie. Because this particular psychiatric condition is lifelong it follows, as Professor Lawrence confirmed this afternoon, that the witness was suffering from the same unhappy condition at the time the rape allegations were made in July 1990. 8. Now, the question arises, of course, whether the tendency to lie was no more than a good number of people, particularly those we see in this jurisdiction, exhibit when it appears to them to be profitable to do so. In Professor Lawrence's opinion the situation here is fundamentally different from that of a person who lies merely to get some benefit for himself or to avoid some painful apprehended consequence. This sort of person, the sociopath, we were told, is likely to lie simply to harm someone else and without any particular motive or attitude, such as pronounced dislike, to support it. It has a degree of irrationality about it, then, which takes it out of the ordinary. The distinction appears to be of a qualitative, as well as a quantitative, kind and, as I understand the evidence, to be the expression of a distinct psychological condition; a manifestation, as I have explained, of a recognised psychiatric category. 9. That expert evidence from Professor Lawrence deals with a scientific subject which, in my view, would not be within the ordinary experience of a random jury. Such evidence would, I consider, be admissible in a trial such as this in accordance with the principles laid down in Toohey v. Metropolitan Police Commissioner (1965) AC 595, as discussed by the High Court in Murphy
(1989) 167 CLR 94. Examples which are in some ways similar to the case before us are provided by the cases of Julien (1988) 57 CCC (2d) 462 and Edwards
(1986) 23 ACR 463. See also the recent English case of Ward (1993) 2 All ER
577. 10. Now, in addition to the expert evidence of Professor Lawrence, the petitioner relies upon a body of lay evidence. I do not stay to describe it. It is put forward as the background material that, in large part, provided the foundation for Professor Lawrence's opinion. Broadly speaking, I think it in fact answers that description. 11. All of this evidence was new evidence in the sense that it was not known to the petitioner at the time of the trial and could not reasonably be regarded as discoverable by him. It has not been tested by cross-examination, nor has the Crown brought forward any evidence of its own to answer it. It appears, on the face of it, to be plausible evidence. 12. In my opinion, there is a significant possibility that a reasonable jury would have acquitted the petitioner had the evidence presented to us been before the trial court. It follows, in my view, that the petition must succeed. 13. I should say another word about the evidence. I have already expressed the view that the expert evidence of Professor Lawrence would be admissible. It is not necessary, for the proper disposal of these proceedings, to pass upon all the lay evidence upon which the petitioner relies. I said that, generally speaking, I think that material that provides the necessary foundation for the expert's opinion would be admissible at the trial; but it will be a matter for the trial judge, should this case come before a jury again, to answer any disputed questions of admissibility, most obviously with respect to that lay material. 14. A question arises whether the petitioner should be required to stand trial again. Mrs Shaw has argued that, in all the circumstances, the proper course would be to quash the convictions and not order a retrial. She emphasised the nature of the case. There was not much, if any, corroboration of the alleged victim's evidence. There is, of course, the issue of delay. The jury would be trying charges with respect to offences that are alleged to have happened some years ago now. More important, there is credible evidence before us about the witness's psychological condition, and one aspect of that which does concern me is the way the exploration of that subject, and the introduction of the expert evidence, would tend to prolong and distort the trial to a very considerable degree. And then, and certainly not least, Mrs Shaw pointed out that the petitioner has already served a considerable part of his sentence. While he is still well short of the expiry of his non-parole period, in fact he was released last month on discretionary home detention. Mention was also made of the cost of the two trials and of the present proceedings that the petitioner has had to bear personally. 15. All those matters are relevant to the question whether a retrial should be ordered. However, they are serious charges, and we have not seen the trial witnesses, let alone those who would give evidence on the mental condition aspect of the matter in the event of a retrial. Much, of course, would depend upon the reliability and credibility of the petitioner's new evidence. Much, too, would depend upon the impression the alleged victim and the petitioner would make in the witness box. We could only speculate about those matters. The Crown, understandably and, in my view, properly, accepted this new material at face value for the purpose of this petition. However, it has been made plain by Ms Abraham that that does not imply that the Crown necessarily accepts the lay material as reliable or the opinion of Professor Lawrence as sound. Those are matters that would have to be tested in the normal way in the event of a retrial. 16. While there are certainly arguments in favour of not subjecting the petitioner to a third trial, I have come to the view that the proper order would be to order a retrial in this case. I say that, however, with this important qualification. As I have said, the Crown has not yet made any independent examination of the new evidence. I think, in the light of that material, including the oral evidence taken from Professor Lawrence this afternoon, that a fresh investigation of the case should be made by the Director of Public Prosecutions sufficient for him to make his own judgement, after assessing as best he can the quality of all the evidence and weighing the competing considerations, of the correctness of putting this man on trial again. There is a real question, obviously, particularly in the case of a contemplated third trial, whether it is in the best interests of the community to pursue the matter to that degree. However, for the reasons that I have given, I think that is a decision that can only be made by the Director, not by this court. 17. For the reasons that I have given, I would set aside the conviction and remand the petitioner for trial.

JUDGE2 DUGGAN J I agree with the order proposed by Justice Cox, and I agree with the reasons which he has advanced in support of his conclusions. While I do not think that this is an appropriate case for the court to enter an acquittal, it may well be that, after further investigation and consideration, the Director of Public Prosecutions will not proceed further. I regard it as inappropriate for this court to direct an acquittal because the material which has been presented to the court has not been considered from the point of view of its full probative value.

JUDGE3 DEBELLE J I agree with the reasons given by my brother Cox, save in one important particular. I refer to the question whether the court, pursuant to s.353(2) of the Criminal Law Consolidation Act, 1935 should enter a judgment of acquittal or order a new trial. 2. The power to order a new trial is discretionary. The nature of that discretion has been considered on more than one occasion. A relatively recent discussion appears in Director of Public Prosecutions for Nauru v Fowler
(1984) 154 CLR 627, where the High Court considered a provision in terms similar to those in which s.353(2) is couched. Section 14 of the Nauru (HighCourt Appeals) Act, 1976 (Cth) is in the following terms: "Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or, if the interests of justice so require, order a new trial." 3. The words "if the interests of justice so require" are not present in sub-s.(2) of s.353, but their absence does not mean that a court should not have regard to them. Indeed, they are plainly part and parcel of the exercise by the court of the discretion vested in it by s.353(2). 4. In Director of Public Prosecutions for Nauru v Fowler (supra), the High Court said (at 630) that even if there is admissible evidence which might require a new trial, the court must nevertheless take into account any circumstances that might render it unjust to the accused to make him stand trial again remembering, however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. So then, I ask, what does the public interest require in this matter? There are, I think, two competing interests. First, there is the public interest in ensuring that a person is fairly convicted by a trial according to law and, if convicted, is then fairly punished for the offending. The other public interest is whether the proper administration of justice requires that the petitioner should be required to undergo a third trial in relation to this matter. 5. In balancing those interests, regard must, I think, be had, for the fact that the petitioner has already been tried twice. As has already been pointed out, on the first occasion, the jury failed to reach a verdict. On the second occasion, the petitioner was convicted by a majority. An appeal against that conviction failed. 6. We have been informed that the petitioner has spent some $54,000 in relation to each of those two trials, the appeal and in defending a claim for criminal injuries compensation made against him. It is difficult to determine what, if any, weight should be attached to the fact that he has expended that large sum of money. On balance, I do not think it should weigh very heavily, if at all. To give it any weight is to assume that the petitioner is innocent. 7. The public interest in ensuring that a convicted person should be fairly punished for wrong-doing can, I think, be fairly satisfied in this case by the fact that the petitioner has served 20 of the 30 months which he would have been required to have served as part of his custodial sentence. There is a further public interest which I think is material, namely, that there must be an end to litigation. In the criminal jurisdiction that factor perhaps does not have the same weight that it might in the civil jurisdiction. In the light of the particular history of this matter, it cannot, I think, be said, with any degree of confidence, that a jury would be likely to return a verdict, let alone a verdict of guilty. I refer to the fact that there has already been one occasion when the jury has failed to return a verdict. 8. It is true, that the evidence which the petitioner might seek to lead in this court has not been tested in cross-examination. But, at the very least, it raises very substantial concerns and, as I have said, it cannot be said with any degree of confidence, that a jury, properly instructed, would be likely to return a verdict of guilty. As Cox J has already observed, there is a reasonable possibility that a jury would have acquitted if the evidence adduced in this court had been available to the previous jury. The evidence is, as His Honour said, very plausible. To these factors must also be added the factor of delay. The alleged offence occurred in July 1990, nearly three years ago. It is, therefore, unlikely that there could be any new trial within, say, three and a half years of the offending. 9. I do not, in any way, under-estimate the seriousness of the charges against the petitioner. They are very serious indeed and it might be said that special circumstances should exist before a court should not order a new trial. If there had only been one previous trial and if there had not been a lengthy delay between the occurrence of the alleged incident and any retrial, then it could be said that special circumstances do not exist. But, that is not the position and I cannot put out of my mind the fact that one jury has already failed to agree. 10. I have given very earnest consideration to the question whether, as Justices Cox and Duggan have held, this matter should be remitted to the Director of Public Prosecutions to consider, in the exercise of his prosecutorial discretion, whether there should be a fresh trial with all the caveats that they have added. But I do not think, in the particular circumstances of this case, that that is the appropriate way to deal with the matter. 11. For all of these reasons I would allow the appeal against the conviction, quash the conviction and enter a judgment and verdict of acquittal.