R v Wilson
[1997] QCA 244
•12 August 1997
IN THE COURT OF APPEAL
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.
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 was 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]
[1]Mental Health Act 1974, sub-s. 33(1)(c).
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.
[2]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.
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 doubt[3] 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.
[3]Thomas v. R. (1960) 102 C.L.R. 584.
[4]Cutter v. R. (1997) 71 A.L.J.R. 638.
[5]Hawkins v. R. (1994) 179 C.L.R. 500, 513.
[6]Cutter at pp. 641-642 per Brennan and Dawson JJ., 642-643 per Gummow J.
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 p. 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 p. 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 pp. 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 responsibility[9] 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.
[7]Code, sub-s. s 27(1); see also s. 26.
[8]Code, sub-s. 27(2): see also s. 26.
[9]Code, s. 304A.
[10]cf. McGhee v. R. (1995) 183 C.L.R. 82.
[11]R. v. Matheson (1958) 42 Cr.App.R. 145.
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.
[12]Code, sub-ss. 23(2), 28(3).
[13]Cf. R. v. Kusu [1981] Qd.R. 136; R. v. Crump [1966] Qd.R. 340.
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 Code[14] 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 reaction[19] has been recognised as an abnormality of mind for the purpose of s. 304A of the Code, and alcoholism[20] and stress[21] 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]
[14]In practice, often referred to as “unsoundness of mind” or “insanity”: Re Bromage [1991] 1 Qd.R. 1, 5.
[15]Code, sub-s. 304A(1).
[16]R. v. Enright [1990] 1 Qd.R. 563, 572; see also the discussion there of the expression “mentally ill”.
[17]Rose v. R. [1961] A.C. 496.
[18]R. v. Byrne [1960] 2 Q.B. 396, 403.
[19]R. v. Ford [1972] Q.W.N. 5.
[20]R. v. Tandy [1989] 1 W.L.R. 350.
[21]R. v. Whitworth [1989] 1 Qd.R. 437.
[22]Dearnley v. R. [1947] St.R.Qd. 51, 61; Bromage at pp. 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, pp. 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 p. 438; Bromage at p. 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).
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]
[27]See, for example, Crump.
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 Court[29] 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]
[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.
“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]
[32](1990) 171 C.L.R. 30.
[33]p. 510.
“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]
[34][1978] Tas.S.R. 98.
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]
[35]p. 511.
“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:
[36]pp. 512-513.
“... 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:
[37][1982] W.A.R. 171, at p. 173.
[38](1972) 471 F.2d. 969, at p. 999.
“... 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 given[39] to the following extract from a judgment of the appeal Division of the Supreme Court of Nova Scotia in R. v. Baltzer:[40]
[39]p. 516.
[40](1974) 27 C.C.C. (2d) 18, at p. 141.
“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]
[41]p. 517.
“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 trial[42] 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 trial[43] 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 Act[47] for an order that “proceedings be continued according to law against the person in respect of the charge”.
[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 (C.A. 4804 of 1996, unreported, 13 August 1996).
[46]Mental Health Act, sub-s. 43A(1).
[47]Sub-s. 33(3).
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 defence[49] 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 mind[51] must be given effect.
[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.
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 Part[53] 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 Act[56] 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. 613[62] 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]
[52]Mental Health Act, sub-s. 33(3).
[53]Part 4.
[54]Mental Health Act, s. 28.
[55]It is not clear that the decision 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.
[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) 30 A.L.R. 27; 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.
In any event, as the appellant correctly noted in the course of the trial, the circumstance that he 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 solicitor[65] 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).
[65]Terry Fisher & Co., as agent for the Legal Aid Office (Qld.). The appellant’s previous solicitor was Peter Russo & Assoc.
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:
“...
I’d like to speak to me psych first before I do anything - before I answer anything. Dead set. He’s the psych I’ve been seeing for years when I got out of Etna 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.”
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:
“Accused: Thank you.
His Honour: I think I would like you to be here to begin with and then once we’ve empanelled the jury ---Accused: Dead set, Judge. One way or the other. Not here - totally not here or here. That’s it. Dead set.
His Honour: You wouldn’t like to be here so we can explain to the jury that you would rather wait outside?
Accused: No, no. Sweet, mate, sweet.
His Honour: All right. Well I’ll adjourn until quarter to twelve. That will enable the matter of the medication if it is necessary to be taken up and for you to have a chat to your parents and it will also allow counsel to confer on the proposal that Mr Wilson has advanced for him not to be present during the trial. That is the inclination that I have at the present time and I’ll hear you both when I come back at a quarter to twelve on that question.”
When the court resumed shortly before 12.30 p.m. that day, the appellant was present and, as previously stated, was arraigned and pleaded not guilty. In the brief period before the indictment was read, the appellant asked questions which appear meaningless until it is appreciated that there was a proposal to adjourn the matter that day to Thursday, 18 April. The transcript records the following:
“His Honour: Arraign the accused.
Accused: Hang, hang on, do I have to face the same Judge next Thursday? Come on, answer the question.
His Honour: Just listen for the moment.
Accused: I plead not guilty on everything. Do I have to see you next Thursday?
His Honour: You get you chance to say that in a moment. Just listen.
Accused: Fuck.”
After the pleas were taken, the appellant’s counsel, Mr Alcorn, said:
“Your Honour, as best as I can get my instructions at the moment, Mr Wilson is happy for me to continue acting for him. His main concern, of course, is that he see Doctor O’Regan again and I have asked my instructing solicitors to get in touch with Dr O’Regan immediately to see my client to provide an updated report and check his medication. I will then propose, your Honour, to ask that the Court adjourn the matter until Thursday so that I can sit down with whoever is instructing me and with Mr Wilson and go through each and every one of his concerns and problems. I’ve tried to explain that to Mr Wilson. I think he is prepared to accept that.”
There was little further intervention from the appellant until the trial judge stated that the court was adjourned until 10 o’clock on Thursday, 18 April, when the accused said:
“Save time and effort: do I still have to face you on Thursday, Judge?
His Honour: That’s right.
Accused: Well, I will be playing up then too, sweet.
His Honour: I look forward to it.
Accused: Fuck you. Fuck. Go home, mum, dead set.”
These matters have been set out at some length, because what occurred on the first morning of the trial provides essential context to later events. From the outset, the appellant was extremely angry at the late stage at which his then legal representatives had become involved in his defence and the absence of assistance from one or more psychiatrists familiar with his problems.
Before referring to what occurred on Thursday, 18 April, it is convenient to record some evidence given by a psychiatrist, Dr Fama, in the absence of the jury shortly before 11 a.m. on Friday, 19 April, on the question of whether the appellant should be present in court during the trial.[66] At that time, the appellant was still legally represented.
[66]Section 617 of the Code.
“MR ALCORN: Thank you, Doctor. Your full name is Peter Fama?-- Yes, Peter Gaetano Fama.
Qualifications, please?-- Yes, I’m a qualified medical practitioner and also registered as a specialist psychiatrist by the Medical Board of Queensland. I’m currently the Director of the John Oxley Memorial Hospital and also visiting psychiatrist to the Arthur Gorrie Correctional Centre.
In that last capacity have you had contact with Robert Anthony Wilson?-- Yes, I examined him on several occasions last year, in July, August, September and, finally, in October for a full assessment.
Have you seen him here this morning in Court?-- I saw him this morning at 9 o’clock this morning in the cells.
In the cells. Could you just tell the Court, please, your assessment of him this morning?-- Yes, he appeared much the same as he had appeared to me previously; that is, at interview in a quiet room with one person. He was quite co-operative though obviously tense on sensitive matters but he was quite rational, alert and co-operative this morning. However, I knew what had happened in this Court with his outbursts of rage and in discussing that with him, he felt that he would continue to be prone to such outbursts upon what he regards as provocation, anything adverse happening to him, any slurs cast against him, any allegations made against him which he believed were not true would throw him into what he believed was an uncontrollable rage. I accept that that has happened. The problems I originally saw him for, in fact, this offence with which he is accused, of course, arose out of that disability which he has had for several years, that is, an explosive tendency to abrupt passage into extreme rage in which he loses control of his actions.
It might be helpful, doctor, if you could perhaps give His Honour some idea of the background that causes this condition?-- Yes. Robert has a background of personality instability dating back from early teenage. He had certain problems then and spent some time in the Sir Leslie Wilson Youth Centre. He subsequently had a rather erratic lifestyle. Matters were much aggravated in 1991, I think it was, by a head injury which he sustained when a gang invaded the house in which he was in and he received a severe blow to the head which caused a skull fracture, hospitalisation and unconsciousness and the need for resuscitation. By the history we have obtained, it seems that the incident greatly aggravated his already existing personality problems. Secondly, it made him more prone, I believe, to the effects of alcohol which, unfortunately, he is dependent upon. In fact, he has an alcohol dependent syndrome. He gets into trouble with liquor very easily.
HIS HONOUR: You are not suggesting he is getting alcohol in the cells, are you?-- No, not at all, but this was related, of course, to the alleged offence.
I know but we are not concerned with that at the moment. We are concerned with whether he can brought [sic] up to Court today?-- Sure. He is not getting alcohol at the moment.
Is this alcohol syndrome affecting him today?-- No.
Yes, go on.
MR ALCORN: Perhaps it might be helpful to indicate what the likely effect of coming into Court today and continuing with the trial might be?-- If he comes to Court again today, based on his history, it won’t need very much to set him off again into another rage so that he can’t really effectively communicate with anyone except to yell and abuse them.
HIS HONOUR: Doctor, are you satisfied that these rages are genuine?-- Oh, yes, yes.
I must say that we had an episode before lunch yesterday which impressed me as being quite a long way from genuine?-- Yes. I believe these things are genuine, yes. I think he has a lack of control.
What effect does this lack of control have apart from producing loud and sustained outbursts of bad language and shouting?-- Well, it can and has produced violence.
To whom?-- Well, to the victim the subject of this charge, for example.
If he were brought to Court today by such force as the prison officers might see necessary to bring him up here with would there be any risk of violence to Court officers?-- There might be a struggle. I think he could be contained physically.
How much of a struggle? I don’t really want to put Court people at risk or to cause that sort of difficulty?-- I haven’t seen Robert in the course of one of these outbursts myself personally. I’m basing what I say on his history. I think he would be controllable with appropriate staff, after all, he has not been drinking; he hasn’t got a weapon and the staff are trained in the - correctional staff and police are trained in dealing with people in this situation.
As far as restraint is concerned would that include the requirement to handcuff him?-- Yes, I should think so.
In that condition how would he be likely to behave in the courtroom?-- Well, as I have said, I think he would be sensitive. He’s always tense in any situation of threat which he would see as this Court, of course, a situation of threat. He’s always tense. Restraint administered in advance, even if necessary, will make him the more inclined to outbursts.
If he is having these outbursts is he rational enough to be able to give instructions to his legal advisors?-- No, not at that time.
How frequently are these outbursts likely to be?-- I think the Court can judge that better than I because they have seen this man in the course of his trial.
We got through to nearly lunch time yesterday?-- Yes, yes. It’s up to the judgment of the Court, I suggest, as to what material is yet to be produced in evidence that may have this effect upon him.
What concerns me though is not just the material that may be produced that may have the effect but also what aggravation the effect of being physically dragged up here and restrained by handcuffs and forced to sit here against his will might have?-- Yes. Well, that is a risk. He doesn’t want to come back to Court. He told me that this morning.
I know that. He doesn’t want to, that is really not sufficient?-- I think it’s sufficient in this man for him to be at risk of losing control again.
Yes, Mr Alcorn.
MR ALCORN: I have nothing further. If my friend has some questions of the doctor.
HIS HONOUR: Mr Clark?
MR CLARK: No, I have nothing arising out of that.” (emphasis added)
This Court has been informed that, in the period between the adjournment of the appellant’s trial the subject of this appeal at 12.35 p.m. on 16 April 1996 to its resumption at 10.05 a.m. on 18 April, “it was not possible to make any arrangements for the Appellant to be examined by his psychiatrists ...”, which was the very purpose of the adjournment. Nor, for that matter, was any psychiatrist who had treated the appellant interviewed at any time by his legal representatives prior to his conviction. As will appear later, he had an extensive medical history, had been treated by a number of psychiatrists over many years, and, at the time of trial, was taking the prescribed drug, Prozac. His behaviour during the trial fluctuated in response to his medication, or lack of it.
When the hearing recommenced on Thursday, 18 April, the appellant was present with his legal representatives. The jury was empanelled, and the prosecution case was opened.[67] During the course of the opening in the absence of the jury, the appellant’s counsel informed the trial judge that the appellant was becoming disturbed and agitated and wanted to absent himself, but that was not permitted.
[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:
The complainant, Woodall, was the first prosecution witness. He described a chance meeting with the appellant at an hotel, followed by a friendly conversation and then the appellant stabbing him without warning. Issues related to sexuality arose in cross-examination, and the appellant became highly agitated and interjected. His statements included “... I hate fucking faggots. Why aren’t you telling the truth, cunt, what I did? So I just got out of gaol ... I just got out of gaol, ladies and gentlemen.” During this outburst he said "where's my psychiatrist"? After that outburst, the trial was adjourned until 2.30 p.m.
When the hearing resumed at approximately 3.00 p.m., the prosecutor informed the trial judge in the absence of the jury that the appellant had refused to return to the court room and had indicated that he would physically resist attempts to bring him there. The prosecutor then applied for the trial to proceed in the absence of the appellant pursuant to sub-s. 617(2) of the Criminal Code, the application was not opposed by the appellant’s legal representatives, and the trial judge ordered that the appellant be excluded from the court after evidence was given by a prison officer to prove the appellant’s attitude.
When the jury returned at 3.20 p.m., the trial judge informed them that he had excluded the appellant from the court and instructed them that no adverse conclusion could be drawn against the appellant from that circumstance. The trial then continued for the rest of the day in the appellant’s absence, but he continued to be legally represented.
Again in the absence of the jury, on the morning of Friday, 19 April 1996, the appellant’s counsel informed the trial judge that the appellant still refused to attend, and it was then that the evidence set out above was given by Dr Fama. After hearing submissions, including a statement by the appellant’s counsel that he obtained more coherent instructions from the appellant in his cell than in court, the trial judge said that he was satisfied by the evidence of Dr Fama and what he had been told from the Bar table “that it is impracticable for the trial to continue with the accused present.” However, his Honour said that, in the interests of justice and fairness, “I can much more comfortably make the direction that the trial proceed in his absence if, in fact, he is in a position of being able to observe what happens and to give instructions to his solicitor.” Counsel for the appellant informed the trial judge that that was what the appellant wanted, arrangements were made for a telephone link to the appellant to be established, and the trial judge continued the order under sub-s. 617(2) of the Code which he had made the previous day. The jury returned at 11.58 a.m. and the trial proceeded until 12.59 p.m. Further prosecution evidence was adduced in that period, and the witnesses were cross-examined by the appellant’s counsel. Up to that point, the telephone link had not been established.
After the luncheon adjournment, the telephone link with the appellant had been installed and his picture could be seen in court but he could not hear the evidence because the microphone on the witness stand was not working properly.
When the trial had continued for about 15 minutes, the appellant withdrew his instructions to his legal representatives, and, after a further adjournment, the appellant confirmed to the trial judge that he had dismissed his lawyers and they were given leave to withdraw.
The trial then continued with two-way communication by telephone between the court and the appellant, who insulted the trial judge but also indicated that he wanted other legal representation. An order was then made that had the effect that the appellant was permitted to hear the evidence but his statements were not to be heard, although his ability to be heard was later restored so that he could cross-examine a witness, Gillinder, a doorman at the hotel. The appellant then said that he wanted to be present for that purpose, and his ability to be heard was again discontinued; Gillinder was recalled later in the trial for cross-examination.
The appellant was able to cross-examine the next witness, Brown, another doorman, apparently by the telephone link, although the record is not entirely clear. Before the adjournment that day until the following Monday, 22 April, the trial judge told the appellant that he would be permitted to ask questions in court if he did not make the continuation of the trial impractical by his conduct.
When the trial resumed, Mr Alcorn of counsel was present, uncertain as to whether or not he was to act for the appellant, who was also in court. The appellant received some advice from Mr Alcorn, who withdrew again after a short adjournment, and did not participate further in the trial.
Prior to the jury returning, the following discussion occurred:
“HIS HONOUR: Mr Clark, one of the matters which I have thought about over the weekend is the question of Mr Wilson and his access to documents. I presume that he has been given all the documents by his legal advisors which they had but I understand that among those documents there is a particular report by Doctor Fama which, on one view the matter, could be of considerable assistance to the defence.
MR CLARK: As I understand, he has that report. Perhaps that could be confirmed now before the jury is brought in.
HIS HONOUR: Mr Wilson, there is a report by Doctor Fama. I’m concerned that 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 that doctor.
ACCUSED: I was going to call Doctor Fama anyway, Your Honour.
HIS HONOUR: As long as you are aware of that then, that’s fine. What’s the report dated?
MR CLARK: That’s 12 October 1995.
ACCUSED: I haven’t got it anyway.
HIS HONOUR: You haven’t got it?
ACCUSED: No.
HIS HONOUR: I will ask the Prosecutor to have a copy made and given to you. It’s not something you need immediately but no doubt you can have it as soon as a copy is made.
MR CLARK: It occurs to me, in the circumstances, that it might be useful if he had the entire file that was before the Mental Health Tribunal. That includes not only Doctor Fama but Doctor Mulholland and various reports that Doctor Fama’s evidence would be based on.
HIS HONOUR: Do you have a copy of those?
MR CLARK: During lunchtime I will make a copy of the entire file and have that handed over to the accused.
HIS HONOUR: Very well. That should be satisfactory, Mr Wilson. Are you ready to continue?
ACCUSED: Yeah, I just need to find one more thing, Your Honour, and then I’m sweet. No, it doesn’t matter, never mind.
HIS HONOUR: Bring back the jury.”
Two points should be noted.
(a) The Mental Health Tribunal file contained the following medical reports:
1.Psychiatric report by Dr Persley apparently prepared for the Royal Children's Hospital dated 27 April 1982;
2.Medical report by Dr James Foley, medical director, dated 26 May 1982;
3.Lengthy psychological report by M. Marriott dated 1 June 1982, whilst the appellant was in the Wilston Youth Hospital;
4.A psychiatric report by B.J. Hawkins, medical officer, directed to the Wilson Youth Hospital dated 23 June 1982;
5.Psychiatric report by Dr O'Regan, Rosemount Psychiatric Hospital, 29 September 1992;
6.Psychiatric report by Dr O'Regan, 13 October 1992;
7.Psychiatric report by Dr O'Regan, 17 November 1992;
8.Psychiatric report by Dr O'Regan, 1 December 1992;
9.Psychiatric report by Dr O'Regan, 22 March 1994;
10.Psychiatric report by Dr O'Regan 12 April 1994;
11.Psychiatric report by Dr O'Regan, 10 May 1994;[68]
[68]Three days prior to the appellant stabbing Woodall.
12.Psychiatric report of the Royal Brisbane Hospital, Division of Psychiatry by Psychiatry registrar Dr Murphy and consultant psychiatrist Dr Butler, March 1994;
13.Neurological report by Dr Todman, specialist neurologist, Wickham Terrace addressed to Bridge Brideaux Solicitors of Mitchelton dated 25 July 1994;
14.Psychiatric report by Dr Peter Mulholland addressed to the appellant's previous solicitors Peter Russo and Associates dated 5 May 1995;
15.Psychiatric report by Dr Peter Fama dated 12 October 1995 addressed to the Mental Health Tribunal.[69]
[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.
(b)Dr Mulholland also wrote a further report dated 15 April 1996 to the appellant’s previous solicitors, Peter Russo & Associates, but there is nothing to indicate that that report was available to the appellant or those who represented him during part of his trial until after he had been convicted.
After the jury returned, the appellant had the complainant, Gillinder, and a witness, Keefe, recalled for further cross-examination, completed his cross-examination of Brown, and cross-examined a number of other witnesses. During his cross-examination of Brown, the appellant made the statement, “When I’m going to get out of gaol in 25 years time, I’m going to put a bullet through your head.” He was warned by the trial judge that the approach he was adopting “could be damaging your own position”, to which the appellant responded, “I don’t mind if I damage my own position.” Later, in the absence of the jury, the trial judge again sought to warn the appellant about the disadvantage to him in the course he was pursuing, to which the appellant indicated that he wanted to know what really happened. The appellant explained to his Honour and the jury “why I’m not going off and I’ve got me act together”, stating it was because he had asked for his medication and been given a double dose that morning. The appellant said that he could not remember stabbing the complainant and he really just wanted the truth to come out, and that if he had done what was alleged “I’ll cop it on the chin, I’ll do my time”. He added, “If I had been granted proper legal help and done everything by your legal book I would not have played up from day one.” One of the witnesses whom the appellant cross-examined that day was a police officer, Ainsworth, who gave evidence of both his initial discussions with the appellant and a formal interview which he conducted. He said that the appellant appeared to be affected by alcohol and that he was slightly unsteady, and described himself as “half pissed”. He also said that he had drunk probably $100 worth of beer since midday. The appellant said that he could not remember anything about the incident and that he had suffered from memory problems since brain damage in an accident and always experienced memory loss when drinking alcohol. He had received regular psychiatric treatment and had been taking Prozac for some time but had not taken any on the night in question. He denied having any intention to kill.[70]
[70]There was considerable other evidence concerning the appellant’s state of sobriety or intoxication when he stabbed Woodall. While Mr Alcorn was present, he cross-examined two of the witnesses on the issue, but evidence led from a number of other witnesses by the prosecution suggesting that the appellant exhibited no signs of drunkenness went unchallenged. However, there was some evidence that the appellant was affected to varying degrees by alcohol, as is later discussed. Indeed, at the later sentencing proceedings in July 1996, the Crown Prosecutor, Mr Clark, accepted that there was clear evidence of consumption of a fair quantity of alcohol on the night in question in his questions to Dr Fama (r. 474).
Although there is some indication that the appellant might have been upset, day four passed without incident. At the end of the hearing on that day, there was discussion as to which witnesses the appellant wanted to call, and those whom he nominated were subsequently called by the prosecution. The appellant also told the trial judge that he had not had time to read all the transcript, and indicated that he wanted his psychiatrist, Dr Fama, available so that he could call him to give evidence as he had previously indicated. As already indicated, His Honour had expressed concern that the appellant should have access to Dr Fama’s report because of its possible assistance to him and ensured that the prosecutor provided the report to the appellant as well as all other reports.[71]
[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.
Matters did not proceed so smoothly on the following day, Tuesday, 23 April. Not long after the hearing commenced, there was an exchange between the trial judge and the appellant when the appellant indicated that he had difficulty in comprehending court procedure. There was a short adjournment at 10.27 a.m. when the appellant said he could not concentrate and was “hyped up”. When the court resumed in the presence of the jury at 10.47 a.m., the appellant asked what charges he was on and enquired about pleading guilty. The exchange which followed included the appellant stating, “I just want to nod me head to ...”. His Honour interrupted to say that he thought that the appellant should have this discussion with him while the jury was outside, to which the appellant responded, “No, no, I - it doesn’t matter. The jury can go home as far as I’m concerned.” His Honour then asked the jury to wait outside, and as they went the appellant said, “I wanted to nod me head, dead set, plead guilty. Hey, hey, shippo. I can’t even plead guilty to the charges, jury, come on. Hey, what a joke this Court is.”
After the jury had left the court room, there was a further discussion in the course of which the appellant said, “So I plead guilty to GBH with intent then.” The prosecution indicated that it would accept that plea if it was a true plea of guilty, and the following exchange then occurred:
“[APPELLANT]: I nod my head to that, your Honour. Too easy. Though I know I didn’t do it.
HIS HONOUR: Well -
[APPELLANT]: No, no, no, I mean, I don’t want to nod to attempted murder. I’m a shocker. If I wanted to kill him, I would have cut his throat. That’s what I’m pissed off about.”
The trial judge then told the appellant that a plea of guilty could not be accepted if the appellant said that he did not do what was charged, and suggested that the appellant take time to calm down and think about his position. The appellant indicated that he wanted more medication to prevent him from “going off”. He said that on the previous day he had been given four pills before court and did not “go off”, but had only been given two pills on that day, “so I can see meself going off like I did the other day in the future; so I just want to nod me head and get it out of the way before I make any more trouble.”
The hearing was adjourned until the afternoon in order to give the appellant time to think, and his Honour requested that enquiries be made concerning the appellant’s medication and, if there was a problem, that appropriate steps be taken to ensure that the appellant was in the best possible position to exercise his mind properly in relation to the matters in issue. It seems from evidence later given by a correctional officer during the sentencing proceedings after the appellant had been convicted that he had asked the appellant at 9.45 on the morning of the fifth day whether he had taken his medication and was told that he had been brought to court before he had the chance to do so. The correctional officer arranged for medication to be available before 2.30 p.m. but the appellant refused to take it because it was not the medication usually supplied. It was not argued that the appellant was not fit for trial because he had not been given his proper medication whilst in custody.
When the court resumed on the afternoon of the fifth day, the appellant again indicated that he wanted to plead guilty but said, “as far as I’m concerned, I didn’t do it.” The trial judge then refused to accept the plea of guilty, and the jury was brought back and told by his Honour, “I have decided that I will not accept any plea of guilty from the accused in the circumstances in which he puts it forward and the trial will continue, the outcome, of course, still being dependent upon your verdict at the end of it.”
The trial then continued, but the appellant’s behaviour deteriorated. He said that the only person whom he wanted to talk to was Dr Fama. Woodall was called for further cross-examination, and the appellant made insulting remarks to him, including a statement that he hoped the complainant died of AIDS. Other insulting remarks were made to other witnesses. Before the court adjourned at the end of the day, the appellant again said that he wanted Dr Fama called as a witness, and the trial judge indicated that the appellant would have a chance to call him if he wished to do so. The appellant also said, “I tried to plead guilty, You won’t let me. ...”
At the commencement of the hearing on the following day, Wednesday, 24 April, the appellant requested the trial judge to direct a mistrial on the bases that (a) his legal representatives had not followed his instructions; (b) he had bad psychological problems causing him to “go off in court”; and (c) 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.” He referred to the drug Prozac which he had been taking and questioned whether the effect of alcohol on it might have caused him to lose control. His language was offensive and abusive, and, in the course of the trial judge’s refusal of the application, there was an outburst from the appellant, who leapt from the dock and advanced towards the Bench. As a result, the appellant was restrained in the dock for the remainder of the day in a body belt, extra handcuffs and ankle chains. While so restrained, he laid down in the dock with the ankle chains visible to the jury. When the court resumed, the trial judge continued with his ruling, interrupted by further abusive outbursts by the appellant.
Because of the issues involved, it is desirable to set out his Honour’s statement of his reasons.
"HIS HONOUR: The accused has applied for an order that I direct a mistrial. As best I understand his argument, he has applied on the basis that the lawyers who were engaged by him did not during the time that they acted for him follow his instructions and, second, that he has not had the capacity to conduct his trial himself. There is no evidence before me which would support the first allegation. The accused had representation for a relatively short part of the trial and from a reading of the transcript, it appears that those who were acting for him did the things that any properly advised lawyers would do.
The general shape of the defence which the accused wishes to mount has become apparent from the questions which he has asked of witnesses since he dispensed with the services of his legal advisors. It has become apparent because he has not only asked questions of witnesses but, also, has put argumentative propositions to the witnesses, which would have been better put or better saved to be put to the jury at the end of the trial. With the benefit of having heard what he has said, it seems to me that those who were acting for him during the time they were acting did ask the questions which laid the necessary foundation for similar submissions in respect of those witnesses with which they dealt.
...
HIS HONOUR: Gentlemen, if you can handcuff him and put him back in the box after he is handcuffed. The record should be noted that there is a pause due to the fact that the prisoner leapt from the dock and advanced towards the Bench during the course of the outburst, which no doubt has been recorded by the Court reporter."
After an adjournment, the trial judge continued:
"HIS HONOUR: The first basis of the application then in relation to the failure of the then counsel to perform does not, in my opinion, appear to be made out upon the evidence.
" . . . 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 ss. 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 (19 December 1995, 135/95), 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.
“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.”
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