R v W-B

R v W‑B
[1999] SASC 147

Criminal
Bleby J

Introduction

The accused is charged with murder. At the date of the alleged offence, 27 November 1997, he was aged 16. He was arraigned and pleaded not guilty. By his counsel he indicated that he would be raising a defence of mental incompetence. That means that the trial had to take place in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935, and the question of the defendant’s mental competence to commit the offence must be separated from the remainder of the trial: s269E(1). That Part has applied to trials taking place after 2 March 1996: Criminal Law Consolidation (Mental Impairment) Act 1985.
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 (s269E(2)). After hearing counsel and with their agreement I decided to proceed first with the trial of the objective elements of the offence. Once that is decided the procedure governing the trial is set out in s269G of the Act. That relevantly provides as follows:
“Trial of objective elements of offence
A. (1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.
(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must record a finding that the defendant is not guilty of the offence and discharge the defendant.
Trial of defendant’s mental competence
B. (1) If the court records a finding that the objective elements of the offence are established, the court -
(a)... must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental competence to commit the offence; and
(b)    may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2) The power to require an examination and report under subsection (1)(b) may be exercised -
(a)... on the application of the prosecution or the defence; or
(b)    if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge’s own initiative.
(3) If the court is satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must record a finding that the defendant is not guilty of the offence and declare the defendant to be liable to supervision under this Part.
(4) If the court is not satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must proceed to consider whether the evidence establishes the subjective elements of the offence beyond reasonable doubt, and -
(a)... if satisfied that the subjective elements of the offence are established beyond reasonable doubt - must record a finding that the defendant is guilty of the offence and proceed to deal with the defendant as if a finding of guilt had been made in the normal way; or
(b)    if not satisfied that the subjective elements of the offence are established beyond reasonable doubt - must record a finding that the defendant is not guilty of the offence.
(5) The court may, if the prosecution and the defence agree -
(a)... dispense with, or terminate, an investigation into a defendant’s mental competence to commit an offence; and
(b)    declare that the defendant was mentally incompetent to commit the offence, record a finding that the defendant is not guilty of the offence, and declare the defendant to be liable to supervision under this Part.”
In this case the trial of the objective elements of the offence created no difficulty. After a jury was empanelled, the accused, by his counsel and in his presence made a number of admissions pursuant to s34 of the Evidence Act 1929, sufficient to require a finding that the objective elements had been proved beyond reasonable doubt. After giving an appropriate direction to the jury I directed them to return an affirmative answer to the question “Do you find that the objective elements of the offence of the murder of (the victim) are established against the accused beyond reasonable doubt?”. I will refer to that hereafter as “the Stage 1 question”. The jury gave a unanimous affirmative answer to the question.
The question now arises as to the nature of the questions to be posed to the jury at the other stages of the trial, whether the jury must be instructed that their answers to each of the questions must be unanimous, or whether and in what circumstances a majority verdict may be allowed.

The Questions for the Jury

Stage 2 of the trial is concerned only with the trial of the mental competence of the defendant to commit the offence. Section 269C of the Act defines mental incompetence in these terms:
“269C. 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.”
Section 269D of the Act requires that a person’s mental competence to commit an offence is to be presumed unless found otherwise. The effect of that section and the provisions of Part B(3) of s269G is that the accused bears the onus of proving on the balance of probabilities that at the time of the alleged offence he was mentally incompetent to commit the offence.
It seems to me that the relevant question to be put to the jury at the conclusion of that stage of the trial (“the Stage 2 question”) is: “Are you satisfied on the balance of probabilities that the defendant was, at the time of the alleged offence of the murder of (victim), mentally incompetent to commit the offence?”.
If the answer to that question is in the affirmative then the jury must be directed to bring in a verdict of not guilty on the ground of mental incompetence: s269GB(3), and the Court declares the defendant to be liable to supervision under Part 8A.
If the answer to that question is in the negative, the Court then embarks upon Stage 3 of the trial, namely whether the subjective elements of the offence have been proved beyond reasonable doubt. Section 269A of the Act defines a subjective element of an offence as meaning “voluntariness, intention, knowledge or some other mental state that is an element of the offence”. In so far as voluntariness is an essential element of the offence of murder, there is an obvious overlap between proof of that mental element and some of the possible components of mental incompetence, particularly that described in paragraph (c) of s269C of the Act.
The appropriate question to be put to the jury at this stage of the trial (“the Stage 3 question”) would appear to be: “Do you find that the subjective elements of the offence of the murder of (the victim) are established against the accused beyond reasonable doubt?”

If the answer is in the affirmative, the jury must be directed to record a finding of guilty of murder. If the answer is in the negative the jury must be directed to record a finding of not guilty of murder. Although I have not yet heard argument on the matter, it would appear that at this stage the jury would also have to be directed on possible available alternative verdicts.

The Juries Act 1927

Since an amendment to the Juries Act made in 1994, it has been possible for a jury to return a majority verdict. “Majority verdict” is defined in s57 of the Juries Act 1927 according to the number of jurors comprising the jury at the time of the verdict. I will assume for present purposes a jury of twelve, in which case a majority verdict is a verdict in which ten or eleven jurors concur.
Section 57 of the Juries Act otherwise relevantly provides:
“57. (1) Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict -
(a)... if a sufficient number agrees to enable the jury to return a majority verdict - a majority verdict will be returned; but
(b) otherwise - the jury may be discharged from giving a verdict.
(2) No verdict that an accused person is guilty of murder or treason can be returned by majority.”
Thus, it is possible for a jury after 4 hours to return a verdict of not guilty of murder by majority, but a verdict of guilty of murder must be unanimous.

The Application of s57 of the Juries Act to s269G of the Criminal Law Consolidation Act

In a normal case the Stage 1 question and the Stage 3 question together cover all the elements necessary to be established in order to return a guilty verdict on a charge of murder. Both of those questions must be answered in the affirmative if a guilty verdict is to be returned. There was no argument, therefore, that an affirmative answer to both the Stage 1 question and the Stage 3 question can only be by unanimous verdict. A negative answer to either of those questions necessarily results in a verdict of not guilty, and after 4 hours, a majority answer would be permitted for either of those answers. The difficulty occurs with the possible answers to the Stage 2 question.
It could be said that any step required to be taken to produce a guilty verdict of murder must be by unanimous verdict of the jury. It could be said that the Stage 2 question is such a step, for without it one cannot proceed to Stage 3. It would follow that a negative answer to the Stage 2 question would require a unanimous verdict.
On the other hand, it may fairly be asked why, merely because there is a plea of mental incompetence, this should create a greater hurdle for the prosecution than would be the case in any other defence that an accused person might raise. Defences of alibi and self‑defence to a charge of murder, for example, would still only require the prosecution to achieve a unanimous verdict of the jury on both the objective and subjective elements of the offence. To require a unanimous verdict that the accused was not mentally incompetent is to impose another and possibly insuperable hurdle in the way of a successful prosecution.
I prefer to examine the situation from the point of view of the rights of the accused. Part 8A of the Criminal Law Consolidation Act made some changes in substance to the law of mental incompetence when compared with the common law M’Naghten Rules (1843) 8 ER 718. Those substantive changes are not of present concern. At the same time there were major changes in the procedural aspects concerning the conduct of a trial where defence of mental impairment or insanity was raised. Unless the amendments to the Act clearly indicate to the contrary, the approach to be taken to the proper interpretation of the Act must be that Parliament, in changing that procedure, did not intend to remove or qualify any existing substantive rights of an accused person. As Mason CJ, Brennan, Gaudron and McHugh JJ said in Coco v The Queen (1994) 179 CLR 427 at 437:
“The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.” (Footnote omitted)
Before the enactment of Part 8A, an accused bore the onus of proof to the civil standard of insanity or mental impairment according to the M’Naghten Rules. An accused person still bears that same onus, with some slight difference as to the content. We are not concerned with that difference.
Under the common law if a person raised a defence of insanity, and after 4 hours ten members of the jury agreed that the defence was made out, the jury could return a verdict of not guilty. The same situation applies now at Stage 2. An affirmative answer to the Stage 2 question requires a verdict of not guilty, and that is permissible with a majority after 4 hours. However, before the advent of Part 8A, if one or two members of the jury considered that the defence had been made out and the remainder were not so satisfied, but were satisfied beyond reasonable doubt that the essential elements of murder had been proved, there could not have been a verdict of not guilty. More importantly, there could not have been a verdict of guilty, which required a unanimous verdict. In those circumstances the jury would have to have been discharged.
As I have pointed out, under the present regime, a majority of the jury may give an affirmative answer to the Stage 2 question because that necessarily leads to a verdict of not guilty. If a majority verdict were permitted and were given for a negative answer to that question, it would mean that one or two members of the jury were satisfied that the defence of mental incompetence had been made out. In other words, in their mind the accused had displaced the presumption of mental competence. The third stage would then proceed upon the footing that the accused was mentally competent, and the jury’s decision on the subjective elements would have to proceed on that assumption, and with the possibility of a unanimous verdict that the subjective elements were proved beyond reasonable doubt. That necessarily means that there could be a finding of guilty of murder with one or two members of the jury having found that the accused had discharged the onus of proving that he was mentally incompetent - a situation that could not have occurred before the enactment of Part 8A of the Criminal Law Consolidation Act. The jury would have to have been discharged and a retrial ordered. That would represent a substantial infringement of the rights of an accused person, with no clear mandate from the way in which the Act is framed that that should be so.
I am therefore forced to conclude that the Act must be interpreted in such a way that, whilst after 4 hours there may be a majority affirmative answer to the Stage 2 question, necessarily resulting in a finding of not guilty, there can only be a unanimous verdict if the answer to the Stage 2 question is in the negative.
That view is reinforced by the fact that one of the subjective elements that must be proved beyond reasonable doubt at Stage 3 is that the accused’s acts were voluntary and wilful (See definition of “mental element” in s269A). In the case of murder the jury must be unanimously of the view that that element is proved. Yet at Stage 2, one or two members might be of the opinion that the defendant was unable to control his conduct (s269C(c)). It would follow that those members must have a reasonable doubt that the defendant’s actions were capable of being wilful, and therefore that they were performed as a wilful act. If a majority negative answer were permitted at Stage 2, the Crown could possibly achieve a conviction for murder with only a majority having been satisfied as to that element. At the very least it would give rise to an unsafe verdict of murder.
Ms Abraham QC for the DPP submitted that any failure to give an affirmative answer to the Stage 2 question must result in proceeding to consider Stage 3. Her argument was that there is a presumption of mental competence (s269D), and if the accused fails for whatever reason to discharge the onus of proof that he was mentally incompetent, the trial must proceed to the next stage. As I understood the argument, not only could the question be answered in the negative by a majority, but that even a hung jury should still properly be interpreted as the failure on the part of the accused to discharge the onus of proof, and that the trial of Stage 3 should then proceed. I reject that argument, principally for the reasons I have already given. But there are additional reasons why the argument must be rejected.
In the first place, whilst the Act requires that these questions be put and be determined in stages, one stage is not totally divorced from or to be viewed in isolation from the others. One cannot ignore the practical effect at one stage of the trial of the procedures adopted at another stage. The practical effect in this case would enable a guilty verdict of murder to be returned where some jurors considered that the defence had been made out. Secondly, the only way that a jury can be “satisfied” or “not satisfied” for the purposes of Part B subsections (3) or (4) respectively of s269G is by a decision of that jury in the only way that the law allows - either by unanimous verdict or, in certain limited circumstances, by majority verdict.
On the charge of murder in an ordinary case, if a jury is unable to agree upon the verdict, it is probably because a reasonable doubt is entertained by one or more members of the jury as to the guilt of the accused. That does not result in a verdict of not guilty because the Crown has not satisfied the burden of proving the case beyond reasonable doubt. The jury must be discharged and the accused re‑arraigned before a fresh jury. The same will occur at Stage 2 if the jury is unable to agree either unanimously or by majority as the case may be, according to the answer to be given.
I therefore propose to direct the jury that if they propose to give a negative answer to the Stage 2 question, it can only be by unanimous verdict.

Stage 2 Procedures

Section 269G of the Act plainly contemplates the possibility of evidence being led at each of the three possible stages of the trial. In this case, counsel were agreed that all the evidence as to mental incompetence and as to the subjective elements of the offence should be led at Stage 2. There would then be addresses, a summing‑up and verdict on the Stage 2 question, followed, if necessary, by further addresses, summing‑up and verdict on the Stage 3 question.
In those circumstances counsel agreed that the DPP should have the carriage of Stage 2 and should call the prosecution evidence first on both issues, because of the onus that the Director bore at Stage 3. In the circumstances I agreed that that course should be followed. Because the DPP would not necessarily know precisely what facts were being relied on by the accused at Stage 2, I also indicated that the prosecution could well be afforded a more generous right of rebuttal or reply on the Stage 2 issues than might otherwise be the case. The nature of any case in reply will need to be determined at that time, and in the light of the circumstances as they then appear.
Because of the unusual situation I invited Mr Barrett QC, counsel for the accused, to consider opening to the jury on the Stage 2 issues immediately following the prosecution opening. He readily, and in my view very properly, acceded to that suggestion.
I mention these procedural matters because, although they were adopted in this case, they should not necessarily be taken to be universal practice. It is a procedure that was devised for the particular circumstances of this case. It must be remembered that Stage 2 is a discrete stage of the trial. The accused bears the onus of establishing mental incompetence on the balance of probabilities. In other circumstances the accused may be required to lead his or her evidence first for that Stage. Furthermore, it should not always be assumed that all the evidence can be led for both Stages 2 and 3 at the second Stage. There may be circumstances where that cannot properly be done. There may even be circumstances where a different jury must be empanelled for Stage 3, as contemplated by s269B(2) of the Act. The procedure to be determined, particularly at Stage 2 of the trial, will be a matter for the trial judge in the circumstances as they present themselves in a particular case.

[1999] SASC 147

12 April 1999