R v Williams

[1995] QCA 557

IN THE COURT OF APPEAL	[1995] QCA 557
SUPREME COURT OF QUEENSLAND

C.A. No. 336 of 1995

Brisbane

[R. v. Williams]

THE QUEEN

v.

VICTOR ALLAN WILLIAMS

Appellant

Davies J.A.
McPherson J.A.

Dowsett J.

Judgment delivered 13/12/1995

Separate concurring reasons for judgment by each member of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - MURDER - CONVICTION; whether miscarriage of justice; whether misstatement of evidence by trial judge; whether reasonable possibility that misstatement affected verdict.

Simic v. R. (1980) 144 C.L.R. 319.

EVIDENCE - s.10(1) Recording of Evidence Act 1962; whether trial judge's report constitutes evidence; test where trial judge has no positive recollection of the words uttered.

Morex Meat v. R. (1995) 129 A.L.R. 546.

Counsel:	Mr. A. Glynn for the appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	3 November 1995
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 13th day of December 1995

The appellant was convicted on 21 July this year of the murder of his wife on 1 June 1994. It was not in dispute that on 1 June 1994 the appellant killed his wife by strangulation. The defence case at trial was that, at the time of the act of strangulation, the accused was, within the meaning of s.304A of the Criminal Code, in such a state of abnormality of mind so as substantially to impair his capacity to control his actions. Although the appellant’s Notice of Appeal contains a number of grounds, the only one which was argued before this Court was one which was added by leave at the hearing.

That ground was that the appellant suffered a miscarriage of justice on the basis that the trial Judge misstated certain evidence and that this misstatement may have affected the jury’s verdict. The alleged misstatement concerned an aspect of the evidence given by one of the defence psychiatrists, Dr. Mulholland.

Dr. Mulholland expressed the opinion that, during the months leading up to the night in question and on that night the appellant had a depressive illness which he regarded as an abnormality of mind. He also considered that his capacity to control his actions at the time of the act of strangulation was thereby substantially impaired. The transcript containing the trial Judge’s summing up, which, by s.10(1) of the Recording of Evidence Act 1962, is evidence of what the trial Judge in fact said, records that he misstated Dr. Mulholland’s evidence. In particular, it records him as saying that Dr. Mulholland considered that there was no substantial impairment of the accused’s capacity to control his actions:

“He did not think that there was any impairment of the capacity of the accused to understand what he was doing at the time of the killing; nor did he consider that there was any impairment of the accused’s capacity to control his actions. Dr. Mulholland, however, made what he described as a retrospective diagnosis of major depressive illness.”

If the record were the only evidence or if it were the only evidence which this Court was entitled to consider on the issue of what was in fact said in the summing up, then it would probably be the case that a new trial would have to be ordered. However, the Court is entitled to receive and consider as evidence a report of the trial Judge as to what he said in the summing up (O.IX r.15(4) of the Criminal Practice Rules and s.10(1) of the Recording of Evidence Act). Such a report was prepared in this case. That report contains the material which the learned trial Judge prepared for, and from which he read during his summing up. This material, unlike the record of what he said, contains no misstatement of Dr. Mulholland’s evidence:

“He did not think that there was any impairment of the capacity of the accused to understand what he was doing at the time of the killing. Nor did he consider that there was any impairment of the accused’s capacity to know that he ought not to kill. However, he did consider that the accused’s capacity to control his actions was substantially impaired at the time. Dr. Mulholland made what he described as a retrospective diagnosis of major depressive illness.”

However, the trial Judge did say in his report that though this was the material from which he read, he could not remember the precise words that he spoke. Therefore, it cannot be said that this Court has a statement by the trial Judge as to his positive recollection of the words that he spoke. Accordingly, in my opinion, the cases to the effect that “the positive recollection of the trial Judge stated in such a report is generally regarded as final in relation to such a matter” do not apply to this case: Morex Meat v. R. (1995) 129 A.L.R. 546 per McPherson and Pincus JJ.A. and White J. at 562; R. v. Tucker [1915] S.R.(N.S.W.) 504 per Cullen C.J. at 508-9; R. v. Storer [1916] V.L.R. 285 per Madden C.J. at 287.

In my opinion, the correct position in a case such as this where there is no positive recollection of the trial Judge as to the words that he has spoken is to weigh up the competing pieces of evidence in the same way as conflicting evidence is weighed up in any situation. Because of the strength of the evidence which shows that the trial Judge did not make the alleged misstatement in this particular case, it is unnecessary for me to determine whether, generally, it is necessary to establish on the balance of probabilities or beyond reasonable doubt that the trial Judge did not make the misstatement.

In my opinion, the relevant pieces of evidence in this case, other than the ones already dealt with, are as follows. It can be seen from the above excerpt of the material which the trial Judge read out to the jury that in order for the record to be accepted as correct, the Judge would have had to have left out a sentence and rearranged slightly another one. Further, he would have had to omit one of the relevant capacities in s.304A. Given the obvious care that the trial Judge gave to the rest of his summing up, this is quite unlikely. There is another factor which makes this more unlikely; neither counsel, both very experienced, requested a redirection on the point; and, notwithstanding that the trial Judge's report was referred to both counsel for comment, it was not contended that either counsel at trial has a recollection that his Honour's direction on that point was other than what would have been expected. Considering the fact that Dr. Mulholland’s evidence regarding the accused’s capacity to control his actions was crucial to the defence case, this consideration is particularly weighty in tending to support the conclusion that the Judge did speak the words written in his report: see R. v. Murray [1924] V.R. 374 Schutt J. at 381. Thus, the inference to be drawn from this situation is that the shorthand typist misheard or mistyped what the Judge said.

That being the case, the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 13th day of December 1995

I agree with the reasons of Davies J.A., which I have had the advantage of reading. In particular, I agree that, on all the material, the probabilities are that Dr Mulholland's evidence was not misquoted or misstated in the course of the summing up. Even if that is not so, however, I do not consider that it would be fatal to the verdict in this case.

The significance of a misstatement of fact in the course of summing up was considered by the High Court in Simic v. The Queen (1980) 144 C.L.R. 319, where it was held that a substantial miscarriage will be held to have occurred if it is "reasonably possible" that the misstatement of the effect of the evidence may have affected the jury's verdict. In the present case the misstatement (if any) was of a matter that was certainly vital to an element in the defence case, which was that the capacity of the accused to control his actions was substantially impaired at the time of the killing.

It was, however, not the only reference to Dr Mulholland's evidence on that matter in the course of the summing up. Shortly after the passage referred to by Davies J.A. in which the misstatement is said to have occurred, the trial judge went on to summarise the addresses of counsel. As regards the address by counsel for the defence (who was Miss Dick) he said:

"She said that Dr Edwards and Dr Mulholland both agreed, at least with respect to one capacity - namely the capacity to control actions - that it was substantially impaired at the time of the killing. She submitted to you that you would not reject the evidence of those psychiatrists."

The learned judge referred to counsel's submissions concerning the evidence of the other psychiatrist Dr Reddan, and then continued:

"Miss Dick also referred to the evidence of Dr Mulholland and the opinion which he expressed that the accused was suffering from a major depressive illness amounting to abnormality of mind which substantially impaired the accused's capacity to control his actions. She said that the fact that the accused's mental condition improved after the killing is not a significant fact telling against the evidence of Dr Edwards and Dr Mulholland and the views they express."

Applying the test in Simic, it does not seem to me to be a reasonable possibility that the jury took notice of the supposed misstatement of Dr Mulholland's evidence in the summing up, but ignored the two accurate statements of its effect which followed closely after it. It is true that, in the case of the latter two, they were described to the jury as submissions made by counsel in her address; but it scarcely seems possible that the jury would have disregarded the discrepancy altogether; or, having noticed it, would not have asked for the relevant portion of the transcript of Dr Mulholland's evidence to be read back to them. As it is, they had already heard Dr Mulholland's evidence on that point opened to them by defence counsel, and might therefore fairly have been expected to have been looking for the evidence which he in fact later gave to that specific effect.

These considerations tend also to confirm the impression that the summing up did not in fact contain the misstatement in question.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 13/12/1995.

I have read the reasons for judgment prepared by Davies JA and am in agreement with his Honour’s reasons and with the proposed orders. I also agree with the observations made by McPherson JA.