R v Wilson
[1997] QCA 423
•28/11/1997
| IN THE COURT OF APPEAL | [1997] QCA 423 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 200 of 1996
C.A. No. 333 of 1996
Brisbane
[R. v. Wilson]
THE QUEEN
v.
ROBERT ANTHONY WILSON
(Applicant) Appellant Fitzgerald P.
Pincus J.A.Lee J.
Judgment delivered 12 August 1997
Joint reasons for judgment of Fitzgerald P. and Lee J.; separate dissenting reasons of Pincus J.A.
APPEAL ALLOWED. THE APPELLANT’S CONVICTION IS QUASHED AND A NEW TRIAL ORDERED UNLESS THE PROSECUTION ELECTS TO HAVE A VERDICT OF GUILTY OF GRIEVOUS BODILY HARM SUBSTITUTED. IN THAT EVENT, THE APPELLANT TO BE RESENTENCED BY THE TRIAL JUDGE.
CATCHWORDS: | CRIMINAL LAW - appeal against attempted murder conviction - inebriated appellant allegedly approached complainant in bar and stabbed him in the stomach. |
| EVIDENCE - OPINION EVIDENCE - EXPERT - medical evidence admissible to show that appellant suffered from psychiatric condition and prone to violent outbursts when affected by stress and alcohol - whether psychiatric evidence admissible in relation to capacity to form intent. | |
| Hawkins v. R. (1994) 179 C.L.R. 500 Schultz v. R. [1982] W.A.R. 171 APPEAL - whether fair trial - appellant's lawyers engaged at late stage - later dismissed - appellant conducted own defence - failure to call material witness. EVIDENCE - WITNESSES - appellant failed to call material witness in own defence - whether prosecutor obliged to call witness - whether trial judge entitled or obliged to call witness - whether extraordinary circumstances. R. v. Apostilides (1984) 154 C.L.R. 563 | |
| Counsel: | Mr M. P. Irwin for the applicant/appellant. Mrs L. Clare for the respondent. |
| Solicitors: | Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent. |
| Hearing Dates: | 17 and 18 September 1996. |
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 12 August 1997
The circumstances relating to this appeal are set out in the joint reasons of the President and Lee J. which I have read.
The applicant was to stand trial on 24 April 1995 when, owing to apparently irrational and aggressive behaviour culminating in dismissal of his then legal representatives, that trial was aborted. The question of his fitness for trial was referred to the Mental Health Tribunal and he was on 9 February 1996 held fit to be tried, by de Jersey J. He came up for trial again in April 1996 and was convicted before Fryberg J. His behaviour during this trial was at times abusive, erratic and irrational. The judge’s impression was that the appellant’s conduct during the trial was not caused by inability on the part of the appellant to control himself; that received some support from evidence given on sentence. A psychiatrist, Dr Fama, who had not seen all the behaviour which the judge had observed, was asked (472) whether at times there was a full lack of control and at other times "it is mere histrionics and some degree of control at least is retained". His answer was, "Yes, that’s the impression I have, yes". Again, when discussing the appellant’s behaviour at the trial Dr Fama talked about the stress involved as leading to increasing histrionics and, in response to the judge’s account of one particular incident, answered: "One might interpret it as partly contrived, but I would say partly a genuine impairment of control".
In substance, the issues at the trial were two, whether the alleged victim was stabbed by the appellant and with what intent that was done. It was suggested during the hearing in this Court that only the second issue arose, but that does not appear to me to be necessarily so; the Crown case, that it was the appellant who stabbed the victim, was not absolutely free from gaps, a condition likely to worsen because the victim and one eyewitness were at material times suffering from AIDS. The eyewitness died between the first attempt at trial, in 1995, and the 1996 trial; the victim was quite ill from AIDS at the time of the second trial and the appellant expressed the hope that he would die of it; whether that has occurred has not been the subject of evidence.
Claimed dissatisfaction on the part of persons represented by Legal Aid appears to be a phenomenon which is on the increase; whether this reflects a deterioration in the quality of such representation, or merely the spread of a notion that claims of that sort have some prospect of success before this Court, it is impossible to say. Certainly this appellant has asserted such dissatisfaction with the lawyers he had in 1995, those who attempted to represent him this year, and some others; but, for myself, I am by no means willing to proceed on the assumption that the case was not properly prepared, or that his lawyers were remiss in carrying out their professional duties in the ways asserted, during the trial, by the appellant.
Dr Fama
The principal point of the case, apart from the question of sentence, now appears to be whether the judge should have taken it upon himself to investigate the question of whether Dr Fama should have been called. Circumstances might be conceived in which, an accused having dismissed his lawyers, the judge might have a discretion, or even perhaps an obligation, so far to step into the role of counsel for the defence as to cause inquiries to be made as to the availability and suitability of defence witnesses and perhaps even to interview them in court. But I am far from thinking that this was such a case.
The psychiatric evidence from Drs. Fama and Mulholland was to the effect that the appellant had an antisocial personality disorder coupled with a tendency to alcoholism. As I read their evidence, the principal likely cause of any outbursts of violence on his part would be ingestion of alcohol (474/45, 484/32, 484/38, 524/47). If Dr Fama was prepared to say anything helpful to the appellant about his intention at the time of the stabbing, one would expect that it would be based upon a finding, or assumption, as to the quantity of alcohol taken. Dr Fama seemed uncritically to accept an assertion that the appellant had, before the time of the stabbing, drunk $100.00 worth of beer. But an examination of the evidence shows that a view that, at the time of the stabbing, the appellant was not showing any great sign of being affected by alcohol was well open; further, shortly prior to the stabbing he was said to be behaving calmly and without anger (33, 34, 37/22, 115/18, 124/39, 134/25). The picture Dr Fama painted of the appellant, both in his written and in his oral evidence, was of a man who was prone to bad tempered outbursts when provoked; but it is clear that Dr Fama saw the possibility of violent acts by the appellant as being principally associated with the effect of alcohol.
To what extent the appellant was affected by alcohol at the relevant time was a factual issue, and one as to which Dr Fama would not have been entitled to express an opinion. Further, it would seem inconceivable that Dr Fama could have said that at the relevant time the appellant was incapable of forming an intention, e.g. to kill someone. And if the appellant was capable of forming such an intention, how could Dr Fama’s expertise help him to decide whether or not he had in fact done so? That was, in my opinion, a question of fact for the jury, to be decided in the light of their view as to precisely what, on the various accounts given, was the appellant’s behaviour at the time of the offence. I find it remarkable that Dr Fama should have advised the Mental Health Tribunal, as he did, that the appellant’s psychiatric disabilities "should preclude his conviction for an offence of specific intent" (emphasis added). This is at odds with the plain fact that the appellant was quite capable, in general, of controlling his actions. A written report from Dr Fama of 12 October 1995 said that at the interview the appellant was rational and fully co-operative in answering questions, had no depressive symptoms, had general knowledge and alertness within the average range, had average short-term memory, had normal calculating ability and regarded his parents in a kindly way.
It is not at all clear what Dr Fama was likely to say, if asked to expand on his suggestion that a finding against the appellant on the issue of intent was precluded by his personality disorder. If Dr Fama’s opinion had been probed by the Crown in cross-examination, much information about the appellant, of a damaging character, might have been placed before the jury.
Dr Fama’s reports of 12 October 1995 and 4 July 1996, together with the clinical progress notes and other documents relied on in them, revealed the appellant’s poor self-control; the appellant’s feeling that he would inevitably re-offend when released; that he was a racist and thought the people in Rwanda should be let to die out; that if he got out on bail he would "blow away at least three people"; that he was thought to have a "severe anti-social personality disorder"; that "to a certain extent" he preferred to be in prison, that he had used, for years, various narcotic drugs; that he had engaged in past aggressive behaviour and committed multiple criminal offences including armed robbery; and, more generally, that he seemed rather a dangerous person and according to Dr Fama a "pretty hopeless therapeutic prospect in view of his long established dissocial personality . . . and present lack of interest in putting any effort into attempting change". I can see no reason why the jury should not have been invited by the Crown to consider these factors in attempting to assess the validity of Dr Fama’s conclusions about the nature of the appellant’s problems, nor is it evident to me that knowledge of these matters would have enhanced any inclination the jury had to let the appellant go free.
Experience suggests that persons who commit extremely violent acts against strangers, for no sensible reason, are but seldom found on examination to have normal personalities. Simple commonsense would suggest that they commonly have defective personalities. In Hawkins (1994) 179 C.L.R. 500, it was held that under Tasmanian law evidence of mental disease can be adduced in determining whether an act is intentional, but I would be reluctant to extend that doctrine to a point beyond that at which the High Court appears to have stopped - i.e. to a point at which cases of this sort will be fought out on contests of expert opinion, no doubt much complicated by questions concerning the validity of the factual assumptions on which the opinions are based. Before Hawkins:
" . . . the dominant line of authority was that expert evidence on the question of whether a person can form an intention to do an act or a specific intention that is a constituent part of a crime was not admissible." (Freckelton and Selby Expert Evidence, para. 8.190.)
Examples are the Victorian decision in Darrington and McGauley [1980] V.R. 353, and Haidley and Alford [1984] V.R. 229. It seems to me probable, although not certain, that the repeated references to "mental disease" in the reasons given in Hawkins were intended to confine the doctrine there espoused to instances in which the accused is mentally ill, in the ordinary sense; this does not appear to be such a case. I can find nothing in Hawkins to suggest that an opinion would have been admissible that, given his defective personality, the appellant was too drunk to have the intention charged.
Other Grounds
Ground 4 complained of the judge not having discharged the jury when they were told, by the appellant, that he had just got out of gaol. This contention has no substance, but it is desirable, because of its relevance to the case as a whole, to quote part of what the primary judge said about the conduct of the appellant at the trial:
" . . . conduct has been quite calculated and quite intelligently based. He has, with some systematic procedure, endeavoured to bring about a series of events which had potential to cause a mistrial. He has, for example, insisted upon bringing out to the jury out of context the fact that he had been in gaol, notwithstanding that he was aware that that fact would not be brought out by the prosecution and was being suppressed for his own benefit. He has at times, until he saw it would do him no good, refused to attend the courtroom and offered violence to those who sought to bring him to the courtroom. He has dispensed with the services of his legal advisors and perhaps there are other matters as well.
In my view, he has not been subject in any way which has significantly affected the course of the trial to an episode of the sort described by the medical practitioners. On the contrary, it seems to me that he has conducted the trial with some facility." (288)
It was argued, under ground 5, that the judge should have made a better response to the following endearing submission:
"I’ve got no legal rep here? What fair? Hey judge, you’re a wanker, why don’t you turn the fucking sound off, you fucking dog. Ever heard that before? I’ve said it fucking at least half a dozen times." (128)
It is enough to say that I am not prepared to accept that the appellant’s reasons for dissatisfaction with his various legal representatives were sound or that the accusations he has made against them were true. Mr Irwin, for the appellant, advanced no argument on these points, but seemed to say that once the appellant’s then current counsel had been dismissed, as he was during this trial, the judge had an obligation to get him another lawyer. The trial judge was not obliged, in the circumstances of the present case, to do as Mr Irwin has submitted.
Fitness for Trial
Then there is ground 6B, which was that the appellant was obliged to continue with his trial, after an application for a mis-trial was refused, "on the basis that I was unfit to conduct my trial for medical reasons". In argument, Mr Irwin elaborated on this submission by suggesting, in effect, that once medical evidence raised doubt about the appellant’s fitness to be tried, the case should have been adjourned so that the matter could be investigated.
It was said that the trial judge erred in not proceeding as required by s. 613 of the Criminal Code, a clear issue as to the appellant’s fitness to plead having arisen. In further, written, submissions delivered to this Court in May 1997, Mr Irwin argued that despite the provisions of s. 43A(1) of the Mental Health Act 1974, the judge was obliged to have the question of fitness for trial determined by the jury because, first, a determination of unfitness for trial under s. 33(1) of the Mental Health Act (which I will not set out) involves different factual considerations from those which apply under s. 613 of the Code, and secondly, the Tribunal’s decision is final and conclusive only as to fitness for trial at the time the decision is made. If the latter proposition is right, then the finality and conclusiveness must come to an end immediately the Tribunal’s decision is given.
As to the second point, counsel submitted, correctly, that a person who is fit for trial at one time may become unfit at another. But I have found no evidence suggesting that the appellant’s fitness to be tried deteriorated between the date of the Tribunal’s decision on that question in February 1996, and the trial before Fryberg J in April 1996. No medical evidence was called or tendered to that effect; nor is the submission made on behalf of the appellant, insofar as it implies that there might have been such a deterioration, helped by the circumstance that the first trial, before Thomas J, was aborted because of the appellant’s behaviour on that occasion. It will be recalled that the reference to the Mental Health Tribunal, in consequence of which the Tribunal found the appellant to be fit for trial, was made in consequence of the difficulties which arose at the first trial.
The relationship between the two regimes dealing with determination of fitness for trial requires analysis. Section 613(1) of the Code says that:
"If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence . . . "
then the jury is to "find whether the person is so capable or no". As the appellant contends, the question for the jury’s determination, as set out in the part of section 613(1) which I have quoted, is not the same as that which has to be resolved by the Tribunal under s. 33(1) of the Mental Health Act, when the Tribunal determines whether a person is "fit for trial". Its task is defined in s. 28A of that Act:
"’fit for trial’ means, in relation to a person, fit to plead at the person’s trial and to instruct counsel and to endure the person’s trial, with serious adverse consequences to the person’s mental condition being unlikely".
The problem is the relationship between these two sets of provisions: what is the effect, if any, of a finding of fitness or unfitness for trial, made under the Mental Health Act 1974, on the possibility of the District or Supreme Court’s exercise of a similar jurisdiction under s. 613(1) of the Code?
A related problem could arise with respect to s. 645(1) of the Code, which reads
as follows:
"If on the trial of any person charged with an indictable offence it is alleged or appears that the person is not of sound mind, the jury are to be required to consider the matter, and if the jury find that the person is not of sound mind, the finding is to be recorded, and thereupon the court is required to order the person to be kept in strict custody, in such place and in such manner as the court thinks fit, until the person is dealt with under the Mental Health Act 1974".
Again, the question whether a person is of "sound mind" for the purposes of s. 645 is not the same as the question whether he is "fit for trial" within the definition in s. 28A of the Mental Health Act. The problem of the relationship between these Code provisions and the related provisions of the Mental Health Act was, it appears, present to the minds of those who prepared the legislation: see Vol. 295 Q.P.D. at pp. 73 and 350. But the way in which the provisions mesh with each other is not comprehensively defined either in the Act or in the Code. In particular, there is in the statute no express answer to the question which arises in the present case: while a finding of fitness for trial made by the Tribunal under s. 33 of the Mental Health Act stands, may a finding in a contrary sense be made under s. 613(1) of the Code? It is in my view only necessary to consider whether such a contrary finding is open where there is nothing to suggest that the accused’s mental condition has altered in any relevant way since the Tribunal’s finding was made; that is the present case.
It is true that, for the purposes of the operation of the doctrine of issue estoppel, a judicial finding as to a person’s mental state on one date does not necessarily preclude the making of a contrary finding as to another date; an analogy is the status of being a gipsy, which is an issue in Mills v. Cooper [1967] 2 Q.B. 459. But a finding on the question of fitness for trial is not intended by the provisions of the Mental Health Act to have effect only on the date on which it was made - in this case, on 9 February 1996, by de Jersey J. Such a finding has continuing operation, under s. 34 of the Mental Health Act as a basis upon which the accused may be detained subject to the provisions of that section. It will be noted that s. 34 contemplates that if there is a finding that a person is not fit for trial the Mental Health Tribunal must order that the person so found "be detained as a restricted patient", but a Patient Review Tribunal must periodically review the person’s mental condition under s. 34(2). If the latter Tribunal finds that the person is fit for trial, the proceedings against him may be continued; if it finds, 12 months after the finding of unfitness for trial, that the person is unlikely to be fit within a reasonable time there may be an order for discontinuance: s. 34(3)(a), or the question of continuance may be deferred, under s. 34(3)(b). This scheme is plainly based on the assumption that the effect of a finding of unfitness has continuing force, for the purposes of the criminal proceedings, subject to the review function of a Patient Review Tribunal.
I note s. 28 of the Mental Health Act:
"Unless otherwise indicated or provided, this Part shall be read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code".
This provision does not appear to me to assist, for present purposes; the question remains whether it is "indicated or provided" in the relevant sections of Part 4 of the Mental Health Act that s. 613(1) may be availed of to reverse the effect of a finding of fitness or a finding of unfitness to be tried, made by the Tribunal under the Mental Health Act. It is also to be noted that s. 38 of the Mental Health Act refers in its sidenote to ss. 613 and 645 of the Code, as being applicable; the text of s. 38, however, appears to pick up the language of the latter but not that of the former section. Again, s. 38 does not appear to answer the question I have posed. That section can be given effect on the basis that the court’s functions under ss. 613 and 645 continue subject to the overriding effect of any subsisting finding of the Tribunal on the question of fitness for trial. A similar observation applies to s. 28E(4) of the Mental Health Act, which in paras. (a)(i) and (ii) contemplates that evidence compulsorily obtained in proceedings before the Tribunal may be admissible in determining questions arising under ss. 613 and 645 of the Code.
A provision which comes closer to suggesting an answer is s. 43A of the Mental Health Act, subs. (1) and (2) of which are as follows:
"(1) Except as is provided by this section, the decisions of the Mental Health Tribunal under this Part shall be final and conclusive and shall not be questioned in any proceeding whatever.
(2) A finding by the Mental Health Tribunal - (a) that a person was not suffering from unsoundness of mind at the time of commission of an alleged offence; or (b) that a person was not suffering from diminished responsibility at the time of commission of an alleged offence; shall not preclude that person from raising the person’s mental condition at the material time as an issue upon the person’s trial and if the person does so raise that issue those findings shall not be admissible in evidence upon the person’s trial."
Since the Tribunal has, relevantly, three functions, the two mentioned in s. 43A(2) and in addition the function of finding whether or not the accused is fit for trial (see s. 33(1)), the omission of any reference to the third function is significant. The implication is that a finding of fitness for trial, unlike the findings mentioned in paras. (a) and (b) of s. 43A(2), has a preclusive effect. This implication gains strength from the emphatic language of s. 43A(1), which does not merely prevent an overturning of findings of the Tribunal other than in the way contemplated by s. 43A (that is, by appeal to the Court of Appeal), but makes the Tribunal’s decisions unable to be "questioned" in any other way. The present is not a case in which an attempt is being made by the Crown to exclude the jurisdiction of the Supreme Court; the issue is whether a decision to a certain effect by a judge of the Supreme Court, subject to an appeal to the Court of Appeal, is "questioned" by a decision of the District Court or the Supreme Court in a substantially contrary sense, exercising jurisdiction under the Code.
It is of course only necessary to decide that point so far as it arises in the instant case, where the ground on which, it is argued, the Court should have acted under s. 613 of the Code is the same as that dealt with by the Tribunal, namely that the mental condition of the accused rendered him unfit for trial. My conclusion is that in such a case as this, there being no evidence of change in the appellant’s mental condition since the Tribunal’s finding, a court would if it empanelled a jury for the purposes of considering the question mentioned in s. 613(1) of the Code be entering upon a questioning of the Tribunal’s decision; that is impermissible.
Conclusions on the Appeal Against Conviction
The two principal grounds, in my opinion, are whether the judge should have looked into the question of calling Dr Fama and whether his Honour was obliged to act as contemplated by s. 613 of the Code. On the former point, it is my conclusion that such an opinion as Dr Fama seemed prepared to give on the question of intention would not have been admissible and that had he been called, his reports and the material referred to in them showed that a decision not to call Dr Fama was quite a rational one, from the appellant’s point of view. As to the second point, I have concluded for the reasons set out above that the subsisting finding, in February 1996, precluded the Court from questioning the Mental Health Tribunal’s conclusion as to fitness for trial by empanelling a jury under s. 613(1) of the Code. That makes it unnecessary to consider another point which was briefly discussed at the hearing, namely whether s. 613(1) applies other than at the time indicated in the opening words of the subsection.
I would dismiss the appeal against conviction.
Sentence
The judge imposed an indefinite sentence on the appellant. A question arose below as to the interpretation of the relevant provisions and that was argued and decided. I do not propose to set the provisions out here; they are contained in Part 10 of the Penalties and Sentences Act 1992. The critical point for present purposes is that the Court is given a discretion to impose an indefinite sentence on an offender convicted of a "violent offence" if "the offender is a serious danger to the community". The judge held, correctly, that the offence of which the appellant had been committed was a "violent offence" within the meaning of the relevant section. His Honour recorded that it was submitted on behalf of the appellant that the question of danger to the community should be tested by asking whether he would be a danger when released. Following Victorian authority, and having regard to considerations which the judge mentioned, his Honour reached the conclusion that the correct approach was to "have regard to the present position and not to try to guess what would be the position at a time many years from now". His Honour held that the statutory conditions were satisfied, then made some remarks relevant to the seriousness of the offence and imposed an indefinite sentence.
It is in my view a matter of concern that the primary judge did not, having determined that the statutory pre-conditions were satisfied, expressly direct attention to the question whether, that being so, an exercise of discretion against the appellant was appropriate. There must be two stages in the process: first, determining whether the circumstances proved are such as to give the Court power to impose an indefinite sentence and, secondly, considering whether it should in all the circumstances do so. It may well be that the judge’s discussion of the circumstances of the offence was intended to deal with the second point, but that is by no means clear.
To return to the legal point his Honour discussed, reliance was placed on the decision of the Victorian Court of Appeal in Carr [1996] 1 V.R. 385 dealing with a provision whose form does not appear to be distinguishable, in relevant respects, from the counterpart in Part 10 of the Penalties and Sentences Act 1992. The Victorian Court of Appeal held that the primary question the sentencing judge had to determine was "whether the prisoner was at the time of sentencing a serious danger to the community". The Court referred to the difficulty of predicting future dangerousness.
It is my opinion that the primary question is dangerousness at the time of sentencing; but it seems to me evident that dangerousness at later points in time is made relevant by s. 163(4)(d). Under that paragraph the Court must have regard, in determining whether the offender is a serious danger to the community, to -
" . . . the risk of serious physical harm to members of the community if an
indefinite sentence were not imposed . . . "
The hypothesis that there is no indefinite sentence does not direct the Court’s consideration to the possibility that no custodial sentence at all is imposed; since a very serious offence must be in issue, it appears that, as in the present case, if there is no indefinite sentence there will be a sentence of determinate length - the sentence referred to in s. 163(2). Therefore, in deciding whether the offender is a serious danger to the community the court must have regard to the risk of serious physical harm to members of the community if a determinate sentence of the appropriate length were imposed, instead of an indefinite sentence.
If such a sentence were imposed, the offender might be released on parole at the half-way point or later, or might serve the full term. Of course, there are other possibilities, such as a release to work. It is my opinion that s. 163(4)(d) compels the conclusion that in determining whether the offender "is" a serious danger the Court has to consider among other matters what danger would be presented to the community if there were, rather than an indefinite sentence, a determinate one; this is a difficult task, because the Court cannot know whether the offender will be released before the end of the determinate sentence hypothesised, and if so, when.
If the offender is regarded as a serious danger to the community at the time when he becomes eligible for parole under a determinate sentence he would not, other than in error, then be released on parole. But the possibility of an offender who is still regarded as a serious danger earning remissions, so as to obtain release earlier than the end of the determinate sentence, cannot be ignored.
In my view, the result of para. (d) (with its ancillary provision, para. (e)) of s. 163(4) is that the Court must consider the danger at the precise time of sentencing but also, and at least as importantly, look to the future; if it does not, the Court cannot carry out the mandatory requirement of para. (d) and that of para. (e). What the Court has to do, then, is to look at the present danger and also consider the extent of the risk of serious physical harm to people, if there is a determinate sentence instead of an indeterminate one.
In the present case the judge fixed the nominal sentence at 18 years, so that if the appellant obtained no earlier release he would under such a sentence leave prison in the year 2014, at the age of 45. One does not find in the reasons of the sentencing judge any explicit consideration of the matter - to my mind, an important matter - which para. (d) of s. 163(4) requires to be considered.
It is my respectful opinion, then, that the sentencing process miscarried, for the reason just mentioned and for the additional reason discussed above, that the judge does not appear to have given explicit consideration to the question whether if the statutory conditions were satisfied, the discretion given by s. 163(1) should or should not be exercised against the appellant.
It is necessary for this Court itself to consider what the appropriate sentence might be. There is a quantity of material, apart from that having to do with the circumstances of the offence, relevant to the issue. It is my opinion that the summary of that evidence contained in the respondent’s written outline is reasonably accurate. I do not propose to set it out in full, but will epitomise it, with some comments.
The stabbing occurred at a "gay bar". The appellant engaged in conversation with the complainant and companions of the complainant. The complainant bought a round of drinks. After punching jocularly at the chest of one of those present, the appellant suddenly attacked the complainant with a knife, slashing his arm and stabbing him in the stomach and causing serious injury. The complainant fled but was pursued by the appellant, who called out to him to come back.
Having left the bar, the appellant later returned, to retrieve the sheath of his knife. He was escorted from the hotel by people who presumably did not know what he had done; it appears that the stabbing happened so quickly that people in the vicinity were unaware of it. As I have mentioned, when interviewed by the police the appellant claimed not to remember the incident. It appears that this has been accepted, without question, by Dr Fama; it is impossible to prove whether or not the appellant remembered having done what he did, but I note that according to the account of events in the record, the appellant was able to converse with others in a friendly way shortly before the stabbing, and I also note that a claimed lack of memory seems not uncommon on such occasions as these.
The psychiatric evidence showed, as I have mentioned, an abnormal personality and some brain damage. There was also a history of considerable consumption of alcohol. There was no dispute between the psychiatrists that at the time of sentence the appellant was dangerous. Dr Fama was more optimistic than Dr Mulholland about the prospect of improvement, Dr Fama expressing the view that in a period from 6 to 13 years the appellant might be no longer a serious danger. At a later point in his evidence, Dr Fama somewhat strengthened this opinion. He was asked to consider that, if there were no indefinite sentence, the appellant would probably not be out of prison for at least 6 years and "probably much more than that"; Dr Fama’s response to this was that:
"I believe the risk would be greatly diminished and I probably assess it at that time as only a slight risk. That is provided, of course, that he has made satisfactory progress in the prison."
It is argued for the appellant that Dr Fama’s opinion should be preferred to the more pessimistic view taken by Dr Mulholland, who said, as his "considered view", that the appellant "would eventually engage in dangerous behaviour towards the community".
Dr Mulholland thought that the appellant needed to be "placed in a benign institution more or less indefinitely" . Referring to that opinion, Dr Fama said in his report that the appellant -
" . . . is at present in as benign an institution as can suitably be arranged. Whether that becomes an indefinite detention will involve the difficult problem of weighing this unfortunate man’s legal rights and perceived needs against the interests of the general community."
The community might perhaps prefer the weighing to which Dr Fama refers to be conducted with heavy emphasis upon protection of the community against danger, rather than on the interests of the appellant. I can, however, see no adequate basis on which this Court could reject the appellant’s submission that the sentencing process should be done on the basis of Dr Fama’s opinion rather than that of Dr Mulholland. The latter may well turn out to be right. But having regard to the heavy onus placed on the Crown by the statute, there is no real justification for rejecting Dr Fama’s view of the matter; his Honour did not do so - at least, not explicitly. On that basis, it appears to me that the Court should set aside the sentence imposed below and in lieu impose a determinate sentence. The nominal sentence mentioned by the primary judge is submitted by the appellant to be excessive and I agree with that view.
Addendum
Since writing the above I have had the advantage of seeing a substituted draft prepared by the majority. I adhere to the view that there were dangers for the appellant in the medical opinions, so far as his chances of acquittal were concerned. I cannot agree that the judge acted unfairly in failing to take steps to get before the jury one, some or all of the medical opinions to which reference is made in the majority’s reasons.
I should add that I quite agree with the majority view that it is not the case that, once an accused is found fit for trial by the Mental Health Tribunal, he must be tried on that basis irrespective of the reality of the position. But I cannot agree with what I understand to be the majority’s view that the legislative intention in enacting that, subject to the statutory exceptions, a Tribunal finding of fitness for trial is to be "final, conclusive and shall not be questioned in any proceeding whatever" is to confine its conclusiveness to the instant at which it is pronounced; to put this another way, I cannot accept that the words I have quoted are mere surplusage. To reiterate, my view is that an accused may at his trial challenge a Tribunal’s finding of fitness, made earlier, on the basis that there has been a degeneration from fitness to unfitness since the finding was made; there was no evidence to suggest that here.
Conclusion
I would dismiss the appeal against conviction, grant the application for leave to appeal against sentence, set aside the sentence imposed below and in lieu impose a sentence of 12 years imprisonment. I would include in the Court’s orders the matters referred to in s. 161(3) of the Penalties and Sentences Act 1992.
JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND LEE J.
Judgment delivered 12 August 1997
The appellant has appealed against his conviction of attempted murder on 24 April 1996, and has applied for leave to appeal against the indefinite sentence which was imposed on him on 1 August 1996.
On Tuesday, 16 April 1996, the appellant was arraigned on two counts; that, on or about 13 May 1994 he attempted unlawfully to kill Mark Andrew Woodall, or, in the alternative, he caused grievous bodily harm to Woodall with intent to do grievous bodily harm. The appellant pleaded not guilty to each charge, accompanied by expressions of dissatisfaction with the situation in which he found himself and his legal representation, stated in vulgar and abusive terms. It is unnecessary to make further reference to the latter charge, since the appellant was convicted of the more serious offence of attempted murder.
When the appellant’s trial had come on for hearing almost a year earlier, on 26 April 1995, it had been adjourned because the appellant was not fit to plead. Briefly stated, on that occasion the appellant, his parents and his then (different) legal representatives were present in the courtroom prior to the commencement of the hearing and the appellant was swearing, yelling abuse and making threats. He was removed to a cell outside the court room, where his tirade continued and, according to his then solicitor, he threatened to kill the solicitor and the trial judge. Although dismissed, his legal representatives remained and participated in the ensuing hearing on his behalf.
The judge who presided on that occasion said that he had been informed of the “problem in relation to Mr Wilson’s condition to stand trial today”, and adjourned the trial to the following day to obtain a report from the Government Medical Officer, who considered that the appellant was “suffering from a episode of manic depression and ... not fit to plead”. A recent statement by the doctor - which has been put before us without objection - is as follows:
“On my arrival at 11.23 am the Bailiff told me the prisoner who had been appearing in Court was using vile language and had physically violent. I immediately interviewed WILSON who stated that he came to the Court that day from the Arthur Gorrie Remand and Reception Centre, where he was being treated for depression with Prozac, one twice a day. He said that he had a history of depression for some years and spent 2 weeks in the Rosemount Psychiatric Hospital in 1994, and had been followed up there every 2-3 weeks since. He said he saw a Psychiatrist, Dr Roper, the previous day and told him he was ready to go off his block again.
He said that he was only told at 5.45am that day that he would be appearing in Court. He stated that he was not happy with his solicitor and wanted to kill him, and that he would go off the handle if sent back to Court. He complained that he had been in prison a year and had been told nothing, and had not been consulted by his counsel re pleading, and was walking in blind behind his statements.”
After the appellant had again been medically examined on the afternoon of 26 April 1995 at the prison where he was being held, the trial did not resume. Instead, the appellant’s medical condition was referred to the Mental Health Tribunal, which on 9 February 1996 found that the appellant was fit for trial.1
It was not disputed on the present appeal that the prosecution established beyond doubt that, on the date of the alleged offence, the appellant stabbed Woodall in the stomach. According to the medical evidence, not a lot of force was required to cause Woodall’s injuries. Woodall initially felt no pain, and when he was taken to the emergency department of the Royal Brisbane Hospital, the doctor who examined and operated on him described him as “awake and alert” and “stable”. Woodall had two lacerations, “one across his abdomen and the other involved the left arm”. The doctor said that the wound to the abdominal cavity was about 5 cm in length, “actually extended into the peritoneal cavity or the gut cavity itself”, and that the bowel was protruding from the abdominal cavity. The bowel was perforated in two places causing four holes, and there was “brisk bleeding from the misenteric which is the arteries that run to the bowel were actually affected. At that stage to control both because they were leaking gut fluid into the peritoneal cavity and to control the bleeding, we had to resect or take out a section of the bowel”. Elsewhere, the blood was described as “spurting”. By way of elaboration, the doctor said that Woodall’s wound ran horizontally from “just to the right of his navel ... extending to the level of the navel” and was “in the lower abdominal region and ... penetrated through the actual skin and the fatty layers and the muscle peritoneum and actually entered the bowel itself”. Further, “[i]n that region there are three muscle layers”. In speaking of the resultant leakage, the doctor said that it could lead to infection, which would cause spasm and later adhesions of the bowel, and major shock, and would be life threatening.
The prosecution case concerning the stabbing can be briefly summarised.
The bar at which the appellant met Woodall had recently been refurbished as a bar for homosexuals, although it seems that the appellant might not have been aware of that fact. He told police he went there to meet a mate. Earlier in the night, at about 9.00 p.m., he was seen in another bar, downstairs in the same hotel, in an agitated condition, shouting out about “poofters” and statements such as “This is my bar and you bunch of fucking poofters can get out”. Brown, a security doorman said the appellant arrived at about 10.00 p.m. Another security officer told the appellant on entry to the bar that it was a “gay bar” because he did not look like a homosexual. This was the practice because the bar had recently been opened as a bar for homosexuals. Brown saw no sign of aggression at that time, but formed the view, from the appellant’s gait and speech, that he was affected by alcohol.2 Woodall and Keefe, an associate of Woodall, who gave evidence of a conversation with the appellant, also said that initially he was not aggressive. Woodall said that he inquired about the appellant’s sexuality - if he was gay, and was told “bisexual” and that "he liked it both ways". He said the appellant asked him for intercourse; when given, this evidence caused the appellant to become agitated. There was additional evidence from Woodall and Keefe that Woodall refused the appellant’s request for intercourse, after which the appellant was slapping and touching Keefe. Woodall warned Keefe not to go with the appellant because “he is bad news”. The appellant was only 2 feet away at the time. He became upset and abusive, there was pushing and shoving, and the appellant stabbed Woodall, who ran from the bar with the appellant pursuing him. Woodall said that at the time the appellant had a strange look on his face, in the nature of a smirk. He was terrified by that look. He also said that he was cut on his arm. In the process of pursuing Woodall, the appellant collided with a wall or a stairway. Brown had observed him while he was chasing Woodall outside; he had a pocket knife in his hand, was flushed and upset and breathing heavily, and was swearing and calling out “come back you bloody bastard” or “gutless bastard”. The appellant returned inside. After a conversation with security staff in which he initially denied but later admitted that he had a knife, the appellant was escorted from the premises.
The appellant prepared his own grounds of appeal, but Mr Irwin of counsel represented him in this Court. Additional matters were raised in argument, and the Court sought and obtained further submissions after the hearing. This judgment is concerned only with matters which merit discussion. Those matters are difficult and troubling, even in retrospect. The trial judge had an unenviable task.
Intention to kill
The appellant stabbed Woodall, and his guilt or innocence of attempted murder depended on intention at that time. It was necessary for the prosecution evidence to satisfy the jury beyond reasonable doubt3 that the appellant intended to kill Woodall when he stabbed him.4 The appellant’s intention was required to be inferred by the jury from his actions and statements and any other material evidence.5 He could not properly be convicted of attempted murder unless the only rational inference available to the jury was that he intended to kill Woodall.6 Some other intent, for example an intent to cause bodily harm or grievous bodily harm, would not suffice.
It is desirable to say something more of Cutter, in which judgment was handed down by the High
Court earlier this year.
While drunk and resisting arrest, Cutter produced a knife and stabbed a constable in the throat. When later interviewed, he stated that he had been “just angry”, that he “wanted to scare them to let them know to leave me alone”, and that he had stabbed the policeman who happened to be closest. By majority, Brennan C.J., Dawson and Gummow JJ., McHugh and Kirby JJ. dissenting, the High Court held that Cutter had been wrongly convicted of attempted murder. At 641, Brennan C.J. and Dawson J. said:
“The finding as to the consumption of alcoholic liquor is relevant to the existence of the specific intent that must be found before the offence of attempting unlawfully to kill is established.”
Reference was then made to s. 28 of the Criminal Code (W.A.) which is relevantly identical with s. 28 of the Code in this State. The judgment then went on:
“Intoxication is relevant to the question whether an accused had the relevant specific intent in fact whether or not it establishes that he had lost the capacity to form an intent [R. v. Crump [1966] Qd.R. 340]. The common law is no different [See Viro v. The Queen (1978) 141 C.L.R. 88 at 112].”
After referring to the need for the prosecution to establish that an intention to kill was the only rational inference in the circumstances, their Honours continued at 642:
“... although the deliberation of the stabbing motion with the knife towards the upper portion of [the constable’s] body is a fact which can and does support an inference of an intent to kill, and although the likelihood of inflicting a fatal wound or the probability of death resulting from such a deliberate stabbing might be obvious to a reasonable person taking an objective view of what happened, the surrounding circumstances must be considered before excluding the possibility that [Cutter] inflicted the wound without an actual intent to kill [the constable]. A result of the stabbing that would be ‘obvious to any person’ or ‘common knowledge’ or ‘obviously probable’ might not have been appreciated by the appellant, much less desired, having regard to his state of mind at the time.
[Cutter’s] anger, his partial intoxication and the highly tense circumstances of his arrest certainly bear testimony to a state of mind that was passionately antipathetic to the police. His outrage at being forcibly manhandled into the van followed by the attempt to extract him from the van suggest an intention to resist the force being applied to him with whatever means he had at his disposal and to surprise his captors by the production and wielding of the knife. But the emotion of the occasion, heightened by the consumption of alcohol, the physical force that was being used both by [Cutter] and the police in and before the attempt to remove the appellant from the van and the manner in which he struck at [the] Constable ... as soon as he leant in the door of the van raise the possibility that the appellant, in resisting his removal from the van, stabbed [the] Constable ... blindly in the portion of his body closest to him intending to resist the police and to wound [the] Constable ... but not necessarily intending to kill him. It is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force.
The circumstances in the present case cannot ... exclude the possibility that [the constable] was stabbed in anger and with aggression but not with an intent to take his life. ...”
In a short judgment, Gummow J. stated at 642-643 that:
“... the circumstances were such as not to exclude the possibility that the appellant stabbed [the] Constable ... in anger but without an intent to take his life.”
It is no part of the appellant’s case in this Court that he was insane within the meaning of s. 27 of the Criminal Code at the time when he stabbed Woodall, i.e., he was not “in such a state of mental disease or natural mental infirmity as to deprive [him] of capacity to understand what [he was] doing, or of capacity to control [his] actions, or of capacity to know that [he]ought not to do the act ...,7 and his mind was not materially “affected by delusions”.8 Further, diminished responsibility9 is not available in respect of an offence of attempted murder.10 However, the appellant submitted that his mental condition at the time of the stabbing was material to the issue on which his guilt or innocence depended, namely, whether or not he intended to kill Woodall. While it has been held that an insane or abnormal mind can form an intention to kill,11 it of course does not follow that mental disorder is necessarily irrelevant to whether a particular intention existed at a particular time. A person’s intention is an aspect of his or her state of mind, and the connexion between a person’s mental condition and his or her state of mind is self- evident.
Even intentional intoxication, whether complete or partial, may be regarded for the purpose of ascertaining whether an intention which is an element of an offence existed.12 The relevance of intoxication to intention is that intoxication affects, or at least can affect, the state of a person’s mind.13 Broadly speaking, if a person’s mind is disordered by some other cause, that should similarly be potentially material to his or her intention.
The prosecution submission to this Court appeared to be that medical evidence concerning the appellant’s psychiatric history and mental condition prior to, at the time of, or after the stabbing was inadmissible in relation to the appellant’s intent when he stabbed Woodall unless the evidence was of an “abnormality amounting to a mental disease”. It is not clear whether “mental disease” was confined to mental disease which had an effect which would satisfy s. 27 of the Code14 or whether “abnormality amounting to mental disease” encompassed, for example, “such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair [the appellant’s] capacity to understand what [he] was doing ...”.15 The foundation for either proposition did not emerge. The Court of Criminal Appeal has recognised that “[t]here are many forms and degrees of mental illness due to a variety of causes and such illnesses may be temporary or of a long-standing or permanent nature”,16 and, when separated from a limiting context such as s. 304A of the Code, “abnormality of the mind” has been accepted as a wide- ranging concept. The Privy Council has stated that “abnormality of mind” is not restricted to the generally recognised types of insanity,17 and the English Court of Appeal has said that abnormality of mind is “wide enough to cover the mind’s activities in all its aspects ...”.18 A depressive reaction19 has been recognised as an abnormality of mind for the purpose of s. 304A of the Code, and alcoholism20 and stress21 have been accepted as possible causes of mental abnormality. Indeed, alcoholism can produce “mental disease” amounting to insanity for the purpose of s. 27 of the Code.22 It has also been held that stress can interact with or operate upon an abnormality of mind arising from some other cause to produce a criterion for diminished responsibility for the purposes of s. 304A of the Code.23 Although an expert is not permitted to usurp the jury’s function,24 medical evidence is admissible to establish such an abnormality of mind.25 Indeed, this Court has held that if medical evidence is unchallenged and there is no other evidence relating to abnormality of mind, a jury verdict which is contrary to the medical evidence cannot be sustained.26
Neither logic nor principle supports a different approach to the admission of evidence for the determination of intention from that adopted for the determination of the states of mind predicated in ss. 27 and 304A of the Code.27
In Hawkins, a case decided on the Tasmanian Criminal Code, the appeal to the High Court turned on “the admissibility of ... medical evidence on the issue of the existence of the specific intent necessary to proof of murder”.28 The Court29 held that in sub-s. 13(1), which excludes criminal responsibility for an act “unless it is voluntary and intentional”, the intention referred to “is no more than an element in voluntariness”, and that the sub-section has a similar operation to s. 23 of the Criminal Code in this State.30 The Court next noticed the interaction between sub-ss. 13(1) and 16(1), the latter provision excluding criminal responsibility on the basis of insanity, and said:31
“An application of s. 13(1) or of s. 16(1) equally precludes criminal responsibility for an act done by an alleged offender but the onus of proving a willed act is on the prosecution while the onus of proving insanity is on the defence ... . In these circumstances, it is not surprising that ... counsel for the defence have sought to use evidence of mental abnormality to raise a reasonable doubt about the voluntariness of the accused’s act independently of and distinct from a defence of insanity. Apart from the reversal of the ultimate onus of proving insanity effected by s. 381 of the Code, ss. 13 and 16 operate by absolving the doer of an incriminated act from criminal responsibility for that act. ... Where there are two available avenues of complete excuse for an incriminated act, one placing the onus of proof on the prosecution, the other placing the onus on the defence, it is not surprising that great difficulties in theory and practice have arisen ... . One basis for distinguishing between the two avenues of excuse is to confine the relevance of mental disease to the defence of insanity, denying its relevance to the issue of voluntariness. ... The solution requires ... the determination by the court of the character of any mental abnormality the existence of which is proved or raised by the evidence. Where evidence of a mental abnormality is relied on by the defence and the issue is criminal responsibility for the incriminated act, it is necessary to characterise the abnormality in order to determine whether the connexion, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of voluntariness or as a question of insanity. ...”
After reference to R. v. Falconer,32 the Court continued:33
“It follows that, if the only evidence tendered to raise the question of the voluntariness of the incriminated act is evidence of a mental abnormality amounting to a ‘mental disease’ under s. 16 ..., the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by pars (a) and (b) of s. 16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.”
Throughout the last paragraph, “mental disease” is used as that term is understood in s. 16, as is confirmed by the following discussion of Williams v. R.34
What has been said to this point provides an essential context for an understanding of the point on which the appeal in Hawkins turned. The conclusion of the Tasmanian Court of Criminal Appeal which the High Court rejected in allowing the appeal appears in the following passage:35
“In the present case, the issue upon which the defence sought to tender evidence of the appellant’s mental abnormality was neither voluntariness nor insanity. The defence accepted criminal responsibility for the act of discharging the gun but sought to contest the intent with which the gun was discharged. A majority of the Court of Criminal Appeal ... held that evidence of mental abnormality ... was irrelevant to the issue of intent.”
Later,36 the Court said:
“... 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 ... 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.”
The Court discussed a number of authorities at pp. 513 -514 and again at pp. 515-517. In the course of doing so, it said at p. 515:
“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.”
The reference to “mental abnormality” in that paragraph makes plain that the Court was referring to more than “mental disease” which satisfied sub-ss. 16(1)(a) and (b) of the Tasmanian Criminal Code.
That can also be seen from the approval on p. 514 of the view of Burt C.J. in Schultz v. R.37 and of the majority decision of the Court of Appeals for the District of Columbia in United States v. Brawner.38 In the Western Australian case, the Chief Justice said:
“... Once it be acknowledged ... 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, ... , 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."
In the American case, the majority of the court said:
“Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility."
Approval was also given39 to the following extract from a judgment of the appeal Division of the
Supreme Court of Nova Scotia in R. v. Baltzer:40
“In order to determine whether the appellant had the specific intent to commit murder the crucial problem for the jury is to determine what was in the mind of the accused. In order to determine what was in his mind, evidence of his whole
personality and background including evidence of any mental illness or disorder that he may have suffered from at the material time, is relevant and must of necessity, be examined so that the jury can consider such evidence together with all the other evidence in determining whether the Crown has established beyond a reasonable doubt that the accused did have the specific intent required, this apart altogether from the issue or defence of insanity." (emphasis added)
So far as presently material, the Court concluded:41
“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.”
The appellant’s mental condition at the time when he stabbed Woodall was material to the issue of whether or not he intended to kill Woodall. Medical evidence relevant to the determination of his mental condition at that time was admissible, and it was for the jury to assess that evidence, together with other evidence relevant to his intention, for example his actions and statements, and to decide whether the prosecution had established that the only rational inference was that the appellant intended to kill Woodall.
Mental condition at trial
The appellant’s mental condition during the trial42 at which he was convicted of attempted murder was also potentially material. As has been stated, about a year earlier the Government Medical Officer considered him unfit to plead and subsequently, a little over two months prior to his trial, he had been held fit for trial43 by the Mental Health Tribunal. That involved a determination that he was fit to plead at his trial and to instruct counsel and to endure his trial, with serious adverse consequences to his mental condition being unlikely.44 Subject to a statutory right of appeal,45 that decision was “final and conclusive” and exempt from questioning “in any proceeding whatever”.46 When the Tribunal finds that a person is fit for trial, provision is made by the Mental Health Act47 for an order that “proceedings be continued according to law against the person in respect of the charge”.
A finding that a person is fit for trial is, of necessity, only a finding concerning the person’s fitness for trial at that time. Mental illness “may be temporary or of a long-standing or permanent nature”.48 A later contention at a subsequent trial, perhaps after a considerable period, that the person is no longer fit for trial need not involve a challenge to an earlier finding of fitness. Nor need a later contention, at trial, that the person is incapable of understanding the proceedings and unable to make a proper defence49 or of unsound mind.50 However, sub-s. 43A(1) of the Mental Health Act would require that the correctness of the Tribunal’s determination be accepted, i.e., that it be accepted that the person charged was fit for trial at the time of the Tribunal’s finding, when such later contentions are decided. Further, the presumption of soundness of mind51 must be given effect.
While this approach limits the efficacy of a determination by the Tribunal that an accused is fit for trial, it seems to us preferable to the alternative conclusion that, once found fit for trial by the Tribunal, an accused person must be tried on that basis irrespective of the reality of the position. Although sub-ss. 43A(2) and 43B(2) might implicitly suggest the contrary, there are a number of indications in the statutory context which support the view which we prefer. When the Tribunal determines that a person is fit for trial, the proceedings must “be otherwise continued according to law”,52 and, unless indicated or provided the material Part53 of the Mental Health Act is required to be “read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code”,54 including of course, ss. 613 and 645 of the Code.55 Reference is made to those Code sections elsewhere in Part 4 of the Mental Health Act56 in terms which are literally wide enough to envisage their continued operation notwithstanding that the Tribunal has earlier made a decision that an accused is fit for trial, and the language of ss. 29(1)(a) of the Mental Health Act likewise is broad enough to permit a further reference to the Tribunal by a trial judge notwithstanding an earlier determination by the Tribunal that an accused person is fit for trial. Similar comment could be made of a number of other Mental Health Act provisions.57 Finally, the approach which we prefer seems preferable in principle. It is unlikely that Parliament intended that the trial of an accused person who is incapable of understanding the proceedings at his or her trial and unable to make a proper defence,58 or who is of unsound mind during the trial,59 should continue because at some earlier time, perhaps a considerable period earlier, the Mental Health Tribunal found the accused fit for trial. Such a conclusion would conflict with the “cardinal principle of our law that no man can be tried for a crime unless he is in a position to defend himself and that includes his being in a mental condition to defend himself ...”.60 It is “the court’s duty to determine the accused’s fitness to be tried even though neither the prosecution nor the defence sought such an enquiry”.61 It is also unlikely that it was intended that an accused could lose the right to have a jury decide the issues referred to in ss. 61362 and 645 of the Code by a determination of the Mental Health Tribunal which might have followed a reference to the Tribunal by a person other than the accused. Provisions related to criminal liability should not be construed so as to produce a manifestly unreasonable, or unjust result unless that is the manifest legislative intent.63 The Mental Health Act “provides for a process of determining criminal responsibility or fitness for trial as an aid to and without interfering with the due processes of the criminal law”.64
In any event, as the appellant correctly noted in the course of the trial, the circumstance that he
| 57 | For example, ss. 28D and 29A. |
| 58 | Code, s. 613. |
| 59 | Code, s. 645. |
| 60 | Enright, p. 573. |
| 61 | Enright, p. 572. |
| 62 | See Ngatayi v. R. (1980) 147 C.L.R. 1; Kesavarajah v. R. (1994) 181 C.L.R. 230. |
| 63 | Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627, 630; MacAlister v. R. (1990) 169 C.L.R. 324, 330. |
| 64 | Enright, p. 573. |
was fit for trial did not mean that he was capable of adequately conducting his own defence.
The course of the trial
| (a) | Conviction |
No evidence concerning the appellant’s mental history or other expert evidence which might have assisted the jury to determine his intention when he stabbed Woodall was called. It is necessary to describe the course of the trial.
Mr Irwin had been briefed to represent the appellant at his trial, which was to commence on Monday, 15 April 1996, although, as earlier stated, the appellant was not arraigned until the following day (Tuesday, 16 April). According to statements then made by the appellant, he had been told “months” earlier of his trial date but did not meet his new solicitor65 until Friday, 12 April. He was then told that Mr Irwin would be brought to see him, but that did not occur. At about 6.20 a.m. on 16 April, he was directed by a prison officer to get ready because “he was going to court”. Although the appellant had been in custody since he stabbed Woodall nearly two years earlier, he first met his new counsel, Mr Alcorn, and his instructing solicitor in the cells underneath the Court building for a short time prior to the commencement of his trial. Mr Alcorn informed the trial judge that he had been instructed on the previous Friday (12 April), that he collected his brief on the following Sunday (14 April) and made attempts to see the appellant then, but had been unable to do so until that morning (Tuesday, 16 April).
As the trial judge said, he could understand the appellant’s anger when he was brought into court on 16 April 1996. The appellant made it apparent that he did not want to be legally represented by those to whom the matter had very recently been committed by the Legal Aid Office (Queensland), who, he complained, “had not read over the paperwork”. He wanted someone to “chase my paperwork down from the psychiatrist that I have been seeing for years”. He said:
“... Creek. I got fucking taken to Rosemount Psych Hospital. Booked in there for a week, put on this special drug. He’s my doctor. I want to speak to him. I’ve been trying to get paperwork - ra, ra, ra. To no avail. I’m not doing nothing.”
I’d like to speak to me psych first before I do anything - before I answer anything.
His attitude appears from the following passage:
“I just don’t want them, dead set. Big boss. I don’t want them. Dead set.
...
If I go down on it, dead set, and if I’m happy with the people who are
representing me and if I go down, well, who have I got to blame? Myself. But if
I go down and I’m not happy with the people representing me, who can I blame?
Not meself. Them. Do you see it? Straightforward.”
There was a discussion concerning the fact that the appellant was in handcuffs, and the trial judge said that ordinarily he would not have him in handcuffs and asked him whether he minded having the handcuffs on. The following exchange occurred:
“Accused: No, it’s sweet. Well, I’m not going - the only way I’m going to go off is verbally because I promised them there and I promised the two officers, right, and I fucking promised someone up in the correctional centre in Townsville I’m not going to go off physically. Verbally, I will.
His Honour: All right. If you are not going to go off physically it might be a
good idea if you don’t have to wear the handcuffs.
Accused: No. Well, just to make - just in case something happens it would be
best if I do have them on.
His Honour: But I think what you’ve got to realise is that sometimes wearing
handcuffs can make a bad impression on the jury, you see.
...
Accused: All the time - I’ve just got out of gaol. I’m going to tell you, you
fucking poofters. I just got out of gaol for armed robbery. I’ve got tattoos all
over me. I’m wearing a white Powers T-shirt. What’s the big deal about me,
handcuffs, me swearing? Can’t make it any worse. You’re kidding?
...
His Honour: No, it is a matter for you entirely in the end. You can give the
instructions for your own defence, but they are people who have had a lot of
experience.
Accused: No kidding?
His Honour: Who did give you advice ---
Accused: No kidding. Over the last two years all the advice I’ve been getting is
fucked. Fuck you.
His Honour: You don’t like it? Well ---
Accused: I’m not the only one who likes it but I’m the only one who has got a bit
of heart to play up.
His Honour: Playing up doesn’t really get you anywhere.
Accused: No, it doesn’t, but it might get the truth out.
His Honour: It may or may not do that.
Accused: Go on, boss. I expect better words from you.
His Honour: All right. Well, don’t get too excited about that. ...”
Further discussion ensued between the trial judge and the appellant, and, although expressed in unacceptable language, his complaints were not obviously without substance.
There was further discussion between the trial judge and the appellant and then the trial judge and the appellant’s counsel and then once again between the trial judge and the appellant, who again made his position clear, as the following extract from the transcript indicates:
“Accused: No, fuck off. I just want to fucking get left alone. I want to dose me medication. I want to see me fucking shrink. That’s it. Otherwise, fuck youself, cunt. If you can’t get it through your fucking head, dead set. You’re supposed to be there to help give me - help everyone else. Well, how about helping me?
...
His Honour: ... Now, Mr Wilson, what I’m proposing to do - what I’m proposing
to do is to give you time to get other solicitors. Are you listening to me? I’m
going to give you time to see your psychiatrist to get other solicitors and to get
another barrister. That time should be well spent by you. Do you understand
that?
Accused: I know that.
His Honour: The question I want you to answer if you can is how long do you
want to do those things?
...
Accused: Well, now, the last two years I’ve accomplished nothing to this date, so
how the fuck can I tell you how long it is going to take to get decent legal
representation with people that I’m happy for? Come on. It takes me two years
to get to this stage and you’re asking me that question.
His Honour: The answer is, you don’t know.
Accused: Correct.”
Again, there was discussion between the trial judge and the appellant and then the trial judge and the appellant’s counsel, during the course of which his Honour said that “... the question is whether it can be adjourned to a date later in the present sittings and the answer probably is it can’t be. Do you have anything to say on that question?”
“Mr Alcorn: No, your Honour. I think clearly Mr Wilson is unhappy with me so
that perhaps I shouldn’t say anything at this stage.
Accused: No. Well, why don’t you hear me out? You can go on, right? Sweet. I
just don’t want to be present at me trial. Quite simple. ...
His Honour: Well ---
Accused: That would save a lot of things if I wasn’t present. What I don’t know
can’t hurt me. I still don’t remember nothing about doing the crime, so who cares
if I don’t know something else. Simple.
His Honour: Are you perfectly happy with that solution?
Accused: I am perfectly - I’d rather be back at the gaol drinking coffee and
having a cigarette.
His Honour: There is, however, still the problem that you’re not confident in your
legal ---
Accused: Doesn’t matter. I haven’t been confident for two years. Dead set.
...
Accused: Who am I going to get? If you let me out for half an hour I’ll rob a
bank and then I might be able to pay for legal representation. But I can’t. I just
got to cop it sweet from Legal Aid.
His Honour: Are you confident, Mr Alcorn, you’ve had sufficient time to prepare
the matter?
Mr Alcorn: Your Honour, I had been but in the circumstances I’m not confident
that whatever I do will be satisfactory to my client and ---
His Honour: One can never achieve ---
Accused: . No. As long as you get that copper into trouble, it’s sweet. I don’t
care.
His Honour: All right. They are fairly clear instructions I would have thought.
Accused: I told him that downstairs and he didn’t want to have a bar of it.
His Honour: Okay.”
Despite counsel's statement that he had been confident that he had had sufficient time to prepare, neither he nor the appellant had consulted with any psychiatrist, and counsel had only spoken to the appellant for a short time that morning. It is inappropriate to interrupt the narrative at this point to refer to the appellant’s medical history, and we intend no criticism of the appellant’s trial counsel, who plainly had a difficult brief. However, in our opinion he was clearly wrong in his opinion that he had had sufficient time to prepare. He had not, and he was not sufficiently prepared.
The prosecutor then intervened to “have an input into the question of an adjournment ... and advance reasons against an adjournment”; he said that “one witness who was an eyewitness has since died of AIDS-related causes. The complainant also has the same disease and my understanding is the prognosis is a short one”.
In the course of those statements by the prosecutor, the trial judge said that “it seems Mr Wilson’s got a clear idea of his own welfare and a clear perception of what he wants and I don’t particularly see any reason why I shouldn’t allow what he wants”, and a little later he said, “... what I’ll do is, Mr Wilson, I am moved to agree to your suggestion”. The following then occurred:
No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. ...”
The prosecutor could also have been reminded that, in Apostilides,93 the High Court in a joint judgment94 recognised that, although it is the prosecutor’s responsibility to decide whether a person will be called as a witness for the prosecution, a decision by a prosecutor not to call a person as a witness could, when viewed against the conduct of the trial taken as a whole, give rise to a miscarriage of justice. Two passages in that case merit repetition. At pp. 575-576, it was stated:
94
“We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.”
Then, at p. 577-578, the Court said:
“In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn [(1983) 152 C.L.R. 657] was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.”
If the prosecutor persisted in what the trial judge considered was an unfair tactic, his Honour could have revisited the appellant’s application for a mistrial, discharged the jury and remanded the accused for retrial.95
No doubt the trial judge was justifiably anxious to avoid such a course, which involved a number of competing considerations96 and obvious objections, at least some of which had earlier been enunciated by the prosecutor. However, the paramount consideration was fairness to the appellant.
The only other course was for the trial judge to involve himself in the function of calling evidence.97 That course is permissible only “in the most exceptional circumstances”.98 In his written submissions to this Court, Mr Irwin identified 16 circumstances which make this case exceptional.99 We do not consider it necessary to discuss those matters individually.
(i) During the trial judge's ruling on this application, the appellant made the outburst during which he advanced towards the bench (R.285/1-10), as a result of which he was restrained in the dock for the remainder of the day in a body belt, extra handcuffs and ankle chains. He subsequently lay down in the dock with the leg irons visible to the jury (R.285/18-21, 450/50-451/37).
(j) After the rejection of the application and the calling of further Crown witnesses who were not effectively cross-examined by the appellant, the Crown case was closed. The appellant then elected not to give evidence and declined to make any submission to the jury (R.303). (k) Notwithstanding the appellant's previously expressed intention to call Dr Fama, he specifically declined to call Dr Fama, although Dr Fama was present (R.303/1-20). (l) Dr Fama later gave evidence on the sentence proceedings that he noticed that the appellant was `very tense, aggrieved, angry' on that date, and that he was told by the appellant that he didn't call him ̀ because he was exhausted. He couldn't face any more of the whole business.' (R.499/5-12). (m) Dr Fama stated in a report (dated 4 July 1996) that he `might have assisted his case concerning lack of intent to kill or to cause grievous bodily harm'. (R., C.A.333/96 (Doc.XLIV). (n) In the earlier report (dated 12 October 1995) Dr Fama had said `I would further suggest that Robert's psychiatric disabilities should preclude his conviction for an offence of specific intent'. (R., C.A.333/96 (Doc.XXXVII). (o) As the trial judge identified to the jury in his summing up the issues to be determined included whether the appellant was capable of forming the intent to kill, and if he was, did he in fact form that intent. (p) In the course of the summing up the trial judge adverted to the question of whether the appellant was capable of forming an intention to kill, with reference to his statements about wanting to see his doctor and wanting medication and directed:- `You could not conclude from them that he has any condition medical or otherwise which would prevent the formation of the necessary intent. He chose this morning not to call any medical evidence and you should not draw any inference from his behaviour in court two years after the event of what his condition might have been on the night in question.' (R.338/45-339/15). (emphasis added)
Some of the reasons for the “extreme reluctance” which a trial judge should feel towards calling witnesses which were identified by Dawson J. in Whitehorn and adopted by the High Court in Apostilides might have been avoided in this case if the trial judge had initially called Dr Fama in the absence of the jury. That course would have presented its own problems, particularly if the appellant continued to be uncooperative. However, it would have enabled the prosecutor to cross-examine Dr Fama, and the trial judge to decide, after hearing Dr Fama’s evidence, whether it was admissible and whether he, or perhaps some additional or other witness, should have been called in the trial in the interests of the appellant. Such a course would also have permitted the prosecutor and the appellant to reconsider their position in the light of the evidence which it was known Dr Fama would give. No doubt, if Dr Fama was to give evidence, the prosecutor could have been allowed to reopen his case to call other expert evidence if he had wished to do so.
Although the High Court granted special leave to appeal in Apostilides and its view of the law differed from the basis on which the Victorian Court of Criminal Appeal had allowed an appeal against conviction,100 the appeal to the High Court was dismissed. The essential reason for that course emphasised that the critical issue is whether there has been a miscarriage of justice.101 In our opinion, the course of the trial, and the jury’s verdict which necessarily involved a conclusion that the appellant intended to kill Woodall when he stabbed him, lead to the conclusion that a miscarriage occurred in this case. The jury was left to decide the appellant’s guilt or innocence without a body of available evidence which was relevant to an essential element of the offence with which he was charged and which the prosecution had to prove beyond reasonable doubt: namely, whether, when he stabbed Woodall, he intended to kill him. The appellant’s psychiatric condition, involving intermittent loss of self-control, was directly relevant to that issue.102 Whatever the reason for the position which was reached, the case should not, in our opinion, have been sent for the jury’s decision on the basis only of the prosecution evidence and the trial judge’s summing-up, if that could reasonably have been avoided.
The appeal should be allowed, the appellant’s conviction quashed and a new trial ordered unless the prosecution elects to have a verdict of guilty of grievous bodily harm substituted.103 In that event, the appellant should be resentenced by the trial judge.
Mental Health Act 1974, sub-s. 33(1)(c).
Another security officer who gave evidence, Machong, agreed in his evidence that, at the committal hearing, he had described the appellant as affected by alcohol, not walking straight, swaying from side to side, with slurred speech and eyes slightly closed. In his evidence at the trial, Machong’s evidence was that the appellant was moderately affected by alcohol.
Thomas v. R. (1960) 102 C.L.R. 584.
Cutter v. R. (1997) 71 A.L.J.R. 638.
Hawkins v. R. (1994) 179 C.L.R. 500, 513.
Cutter at 641-642 per Brennan and Dawson JJ., 642-643 per Gummow J.
Code, sub-s. s 27(1); see also s. 26.
Code, sub-s. 27(2): see also s. 26.
Code, s. 304A.
cf. McGhee v. R. (1995) 183 C.L.R. 82.
R. v. Matheson (1958) 42 Cr.App.R. 145.
Code, sub-ss. 23(2), 28(3).
Cf. R. v. Kusu [1981] Qd.R. 136; R. v. Crump [1966] Qd.R. 340.
In practice, often referred to as “unsoundness of mind” or “insanity”: Re Bromage [1991] 1 Qd.R. 1, 5.
Code, sub-s. 304A(1).
R. v. Enright [1990] 1 Qd.R. 563, 572; see also the discussion there of the expression “mentally ill”.
Rose v. R. [1961] A.C. 496.
R. v. Byrne [1960] 2 Q.B. 396, 403.
R. v. Ford [1972] Q.W.N. 5.
R. v. Tandy [1989] 1 W.L.R. 350.
R. v. Whitworth [1989] 1 Qd.R. 437.
Dearnley v. R. [1947] St.R.Qd. 51, 61; Bromage at 9, 11. At p. 9, the Court of Criminal Appeal said that “... the circumstance that a mental condition is the product of external factors is not enough to deprive it of the status of a ‘mental disease’ within the meaning of s. 27 of the Code”.
| 23 | Whitworth: see, for example, 439, 440, 443-444, 447-448, 449, 451ff; see also Bromage and contrast R. v. Nielsen [1990] 2 Qd.R. 578. | ||||||
| 24 | R. v. Darrington and McGauley [1980] V.R. 353; R. v. Nelson [1982] Qd.R. 636; R. v. Weightman (1991) 92 Cr.App.R. 291. | ||||||
| 25 | See, for example, Whitworth at 438; Bromage at 6; Schultz. v. R. [1982] W.A.R. 171; Gordon v. R. (1982) 41 A.L.R. 64; R. v. Barry [1984] 1 Qd.R. 74; R. v. Laurie [1987] 2 Qd.R. 762; R. v. Barnes (C.A. 421 of 1994, unreported, 15 February 1995); R. v. Welsh (N.S.W. C.C.A. 60688 of 1995, unreported, 6 November 1996). | ||||||
| 26 | R. v. de Voss (C.A. 229 of 1995, unreported, 24 November 1995). | ||||||
| 27 | See, for example, Crump. | ||||||
| 28 | See p. 506. | ||||||
| 29 | Mason C.J., Brennan, Deane, Dawson and Gaudron JJ. | ||||||
| 30 | pp. 508-509; cf. Bromage at p. 5. | ||||||
| 31 | pp. 509-510. | ||||||
| 32 | (1990) 171 C.L.R. 30. | ||||||
| 33 | p. 510. | ||||||
| 34 | [1978] Tas.S.R. 98. | ||||||
| 35 | p. 511. | ||||||
| 36 | pp. 512-513. | ||||||
| 37 | [1982] W.A.R. 171, at p. 173. | ||||||
| 38 | (1972) 471 F.2d. 969, at p. 999. | ||||||
| 39 | p. 516. | ||||||
| 40 | (1974) 27 C.C.C. (2d) 18, at p. 141. | ||||||
| 41 | p. 517. | ||||||
| 42 | The trial includes the sentencing proceeding. | ||||||
| 43 | Mental Health Act, sub-s. 33(1)(c). | ||||||
| 44 | Mental Health Act 1974, s. 28A. | ||||||
| 45 | Mental Health Act, sub-s. 43A(3); Bromage; Attorney-General v. Farrah [1997] 1 Qd.R. 460. | ||||||
| 46 | Mental Health Act, sub-s. 43A(1). | ||||||
| 47 | Sub-s. 33(3). | ||||||
| 48 | Enright at p. 572. Intervening circumstances might also affect fitness for trial; e.g. a head injury and brain damage. | ||||||
| 49 | Criminal Code, s. 613. | ||||||
| 50 | Criminal Code, s. 645. | ||||||
| 51 | Criminal Code, s. 26. | ||||||
| 52 | Mental Health Act, sub-s. 33(3). | ||||||
| 53 | Part 4. | ||||||
| 54 | Mental Health Act, s. 28. | ||||||
| 55 | It is not clear that the Tribunal which the decision is empowered to make under sub-s. 33(1)(c) of the Mental Health Act coincides with and exhausts the jury decisions under s. 613 and 645 of the Code. | ||||||
| 56 | See s. 38. | ||||||
| 65 | Terry Fisher & Co., as agent for the Legal Aid Office (Qld.). The appellant’s previous solicitor was Peter Russo & Assoc. | ||||||
| 66 | Section 617 of the Code. | ||||||
| 67 | Prior to the first prosecution witness giving evidence, statements were made by the trial judge which indicated that he has a copy of the Mental Health Tribunal file, presumably pursuant to a ruling by the Mental Health Tribunal under r. 8 of its Rules. For example, his Honour observed to the prosecutor that “in the course of listening to his witness list, [his Honour did not] detect the name of any ... person giving psychiatric evidence”, and, a little later, the following exchange occurred: | ||||||
| “HIS HONOUR: Is there likely to be any issue as to voluntariness as well? MR CLARK: I have seen nothing on the material which would raise voluntariness and I assume Your Honour is referring to voluntariness of the act as opposed to the record of interview? HIS HONOUR: Correct. MR CLARK: Yes. HIS HONOUR: I am concerned about a passage, which may not go into evidence for all I know what you gentlemen intend to do, but there was a passage in some of the material before the Mental Health Tribunal in a letter from Doctor Farmer [sic] which bore upon - or might have been thought to bear upon the question. MR CLARK: I can understand Your Honour’s concern and perhaps I should say that I have spoken to my learned friend and he at this stage intends to take a certain course with his own case and Doctor Farmer [sic] is included in that.” | |||||||
| 68 | Three days prior to the appellant stabbing Woodall. | ||||||
| 69 | This report indicated that Dr Fama had considered the prior medical reports and the depositions at the committal hearing relating to the charge of attempted murder of which the appellant was convicted. | ||||||
| 70 | There was considerable other evidence concerning the appellant’s state of sobriety or intoxication when he | ||||||
| 71 | Again, we have no wish to criticise counsel engaged in an extremely difficult trial. It is unclear to us why the prosecutor did not call evidence of the appellant’s psychiatric history. However, it has earlier been noted that the Director of Public Prosecutions apparently has a narrower view than ours of the expert evidence which is material to intention when that is an element of an offence. | ||||||
| 72 | In evidence later given in the sentencing proceedings, Dr Fama said that he was present in court during this period and considered that there had been “a pretty full loss of control”. | ||||||
| 73 | This qualification is not intended to convey that the expert evidence would have been inadmissible, or available only for limited purposes, without the appellant’s evidence. Reference has earlier been made (fn 25) to a number of cases, including Barnes and Welsh. | ||||||
| 74 | In his report Dr Fama expressed the opinion that, irrespective of any ingestion of alcohol, the appellant’s “psychiatric disabilities should preclude his conviction for an offence of specific intent”. | ||||||
| 75 | That was done, and Dr Fama was present when the prosecution case closed on 24 April. | ||||||
| 76 | See R. v. Files [1983] 2 Qd.R. 153; R. v. Pateman [1984] 1 Qd.R. 312; de Voss. | ||||||
| 77 | Compare, for example, his Honour’s remarks on 24 April 1996 after the appellant had leapt from the dock | ||||||
| 79 | Including his dismissal of his legal representatives. | ||||||
| 80 | The distinction is noted in MacKenzie v. R. (1996) 71 A.L.J.R. 91; 141 A.L.R. 70; see also R. v. Gordon (C.A. 69 of 1997, unreported, 20 June 1997). | ||||||
| 81 | See M. v. R. (1994) 181 C.L.R. 487. Compare R. v. Hanias (1976) 14 S.A.S.R. 137, 142-143, 148-149; R. v. Bicanin (1976) 15 S.A.S.R. 20; see also McInnis v. R. (1979) 143 C.L.R. 575, 582-583 per Mason J., 590 per Murphy J. | ||||||
| 82 | See Bulejcik v. R. (1996) 185 C.L.R. 375; Crofts v. R. (1996) 186 C.L.R. 427. | ||||||
| 83 | See R. v. Woodward [1944] K.B. 118; Vescio v. The King (1948) XCII C.C.C. 161. The position might be different in the case of a person suffering from a mental disability: R. v. Varley [1973] 2 N.S.W.L.R. 427, 431; Faretta v. California (1975) 45 L.Ed 2d Sup Court R. 562. Different considerations might also apply once counsel has begun to conduct the case: R. v. Lyons (1978) 68 Cr.App.R. 104; R. v. Wati [1993] 3 N.Z.L.R. 475. | ||||||
| 84 | (1992) 177 C.L.R. 292. See also New South Wales v. Cannellis (1994) 181 C.L.R. 309; Craig v. South Australia (1995) 184 C.L.R. 163. | ||||||
| 85 | See R. v. Te Whiu [1965] N.Z.L.R. 420; cf. Legal Services Commission of New South Wales v. Stephens [1981] 2 N.S.W.L.R. 697. | ||||||
| 86 | See, for example, R. v. Wilson (C.A. 355 of 1994, unreported, 14 November 1994); R. v. McEndoo (1980) 5 A.Crim.R. 52, 57; R. v. Snowdon (C.A. 271 of 1995, unreported, 4 June 1996, per Lee J., dissenting), where his Honour referred to R. v. Morgan [1978] 1 W.L.R. 735, 740; R. v. Bracewell (1979) 68 Cr.App.R. 44; R. v. Ross (1987) 29 A.Crim.R. 77. See also MacKenzie. | ||||||
| 87 | Love v. R. (1983) 49 A.L.R. 382. See also MacPherson v. R. (1981) 147 C.L.R. 512, 524-525, 534; R. v. Lucas [1973] V.R. 693; Foster v. R. (1982) 38 A.L.R. 599. | ||||||
| 88 | To assist the appellant, expert evidence had to have any necessary evidentiary foundation and raise a doubt with respect to his intent at the time when he stabbed Woodall: cf. R. v. Foy [1960] Qd.R. 225. | ||||||
| 89 | Richardson v. R. (1974) 131 C.L.R. 116; R. v. Apostilides (1984) 154 C.L.R. 563. See also Wakeley v. R. 1990) 64 A.L.J.R. 321; Maxwell v. R. (1996) 184 C.L.R. 501; R. v. Smith (C.A. 566 of 1996, unreported, 9 May 1997). | ||||||
| 90 | (1983) 152 C.L.R. 657. | ||||||
| 91 | 664. | ||||||
| 92 | pp. 674-675. | ||||||
| 93 | at p. 575. | ||||||
| 95 | Criminal Code, ss. 592, 593, 626 (since repealed); Lucas at 698; Foley (1984) 13 A.Crim.R. 29,32. | ||||||
| 96 | cf. Queensland v. J.L. Holdings Pty Ltd (1997) 141 A.L.R. 353. | ||||||
| 97 | His Honour might have attempted to persuade the appellant to change his mind and call Dr Fama, perhaps after adjourning the trial for a period to allow Dr Fama and/or a representative of the Legal Aid Office (Qld) to counsel the appellant and to enable him to regain control of himself. Perhaps his Honour considered that such a course would be futile. | ||||||
| 98 | Apostilides at 575; see also the reference at 576-577 to the statement of Dawson J. in Whitehorn at 682- 683. See also R. v. Damic [1982] 2 N.S.W.L.R. 750; R. v. O’Brien (1996) 66 S.A.S.R. 396; R. v. Griffis (1996) 67 S.A.S.R. 170; Smith (C.A. 566 of 1996). | ||||||
| 99 |
|
(i) that the appellant suffered a `disability which he had for several years, that is, an explosive tendency to abrupt passage into violent rage in which he loses control of his actions . . .' (R.84/52-55).
(ii) that he was satisfied that these rages were genuine (R.85/35-36).
(iii) that restraint administered in advance (e.g. handcuffs) . . . will make him more inclined to outbursts and he would not be rational enough to be able to give instructions to his legal advisers at that time (R.86/10-20).
(d) On Day 4 (22 April 1996) the appellant's legal advisers finally withdrew, (having been dismissed on 19 April 1996). The appellant thereafter represented himself. (e) Immediately after the withdrawal of the appellant's legal representatives the trial judge referred to Dr Fama's report and told the appellant that he was concerned `you should have that because it would be, on one view of matters, some people might think, in your interests to have it and perhaps call Dr Fama'. The appellant responded that he was going to call Dr Fama. The trial judge ensured that the Crown Prosecutor provided the report to him (and indeed all of the Mental Health Tribunal file) (R.146/1-40). As indicated elsewhere in these reasons, this did not occur at the earliest until after lunch on 22 April 1996 (R.146). The receipt of this material appears to have been confirmed by the appellant from his remarks on 23 April 1996 (R.265).
(f) At the end of Day 4, there was a discussion as to what witnesses the appellant wanted called. During this discussion the appellant told the trial judge that he wanted Dr Fama, so that he could call Dr Fama to give evidence (R.248/30). (g) On Day 5 (23 April 1996) in which there was an exchange between the appellant and the trial judge about pleading guilty, the appellant said that the only person he wanted to call was Dr Fama (R.268/30). Before the court adjourned on that day the appellant again said that he wanted Dr Fama called as a witness (R.278/22; 279/18). The trial judge responded:- `You will get a chance to call him yourself if you wish'. (R.279/24-25).
(h)
On Day 6, (24 April 1996) the appellant asked the trial judge to direct a mistrial for reasons including that he wanted `to be given time to start all over again from scratch with a proper legal counsel because . . . I'm fit for trial but I'm not fit to represent myself'. (R.284/30).
| 100 | (1983) 11 A.Crim.R. 381. |
| 101 | p. 578. |
| 102 | cp. Hawkins at p. 515; approving R. v. More [1963] S.C.R. 522. |
| 103 | Such a verdict was open on the indictment (see s. 579 of the Code), and should be entered if for any reason the prosecution is not in a position to retry the appellant; for example, because of difficulties with witnesses. See sub-s. 668F(2) of the Code. |
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