The Queen v Jeffrey

[1991] TASSC 38

Serial No 7/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              The Queen v Jeffrey [1991] TASSC 38; A7/1991

PARTIES:  THE QUEEN
  v
  JEFFREY

FILE NO/S:  151/1990
DELIVERED ON:  20 February  1991
JUDGMENT OF:  Underwood J

Judgment Number:  A7/1991
Number of paragraphs:  29

Serial No 7/1991
List "A"
File No 151/1990

THE QUEEN v JEFFREY

REASONS FOR JUDGMENT  UNDERWOOD J

(Ruling on Voir Dire)  20 February 1991

1. The accused was indicted for the crime of murder. Upon his arraignment he pleaded not guilty, thereby putting in issue the existence of each of the elements which constitute the crime charged or its statutory alternatives. The Crown case, based entirely on circumstantial evidence, is that the accused murdered his father at Baker's Beach near Latrobe in the late afternoon of Wednesday 8 November 1989. The sanity of the accused at the time of the commission of the actus reus was not put in issue by the plea of not guilty. It did not then become an issue because of the provisions of the Code, s15 which provide:

"Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question, until the contrary is proved."

1. In this respect, there is no divergence between the common law and the Code. At the commencement of the trial, learned senior counsel for the accused made it clear that it would be no part of the case for the defence that the accused was not of sound mind at any material time. As the sanity of the accused, at the time it is alleged he committed the crime, is not an issue, it follows, that evidence, probative of that issue alone, is inadmissible on the grounds of relevance. Such evidence will remain inadmissible until the sanity of the accused at the material time is made an issue by the defence. See R. v Dickie [1984] 3 All ER 173; R. v Joyce [1970] SASR 184; R. v Smith (1911) 6 Cr App R 19.

1. The contrary view was expressed by Denning LJ in Bratty v The Attorney–General for Northern Ireland [1963] AC 386 at411:

"The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large."

1. However, that expression of opinion has since been doubted. In R. v Price [1963] 2 QB 1 Lawton J at 7, acknowledged that in the United Kingdom the common law might have been altered by the introduction of the defence of diminished responsibility by the Homicide Act 1957 and referred to Bratty but said:

"Prosecutors prosecute. They do not ask juries to return a verdict of acquittal. A trial in England is concerned with the proof of a charge; it is not an inquisition. In their advice in the House of Lords in M'Naughten's case the judges said: 'that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved.' Then the judges set out their famous direction as to what insanity is. If insanity is a defence, it seems to me it is for the defendant and his advisers to decide whether to put it forward. The law already provides for the position where a man is so insane that he is not capable of instructing his legal advisers. If the Crown raises an issue which M'Naughten's case referred to as a defence and the jury find the defendant guilty but insane, he cannot challenge that verdict in any higher court. When the Homicide Act, 1957, gave the defendant in this class of case the right to plead diminished responsibility Parliament did not go on to say that the Crown should have the right to raise the issue of insanity."

See also Dickie (supra). In R. v Joyce (supra) the South Australian court drew attention to the significance of the statutory defence of diminished responsibility, not open in that State, and held that (p.88) "the Crown cannot ... 'give in evidence' the accused's insanity when the question of his state of mind is not raised by the defence; it cannot do so because it is irrelevant to the prosecution case". This was held to be the position in Victoria by the Full Court in R. v Jeffrey [1967] VR 467. In R. v Damic (1982) 6 A Crim R 35 Street CJ said (obiter dicta) at 38 that "it was not, of course, the province of the Crown to take an initiative in this regard [setting up mental illness as a defence]". See also R. v Meddings [1966] VR 306; R. v Cottle [1958] NZLR 999; R. v Tsigos [1964–5] NSWR 1607; Mental Disorder and Criminal Law in Australia and New Zealand at138 – 139.

1. The right of the Crown to introduce evidence that the accused was insane at the time of the act charged was considered by a Canadian appellate court for the first time in R. v Simpson (1977) 35 CCC (2d) 337 at 356 and following. The court noted the English rule that there is no such right until the defence raise the issue of insanity. After reviewing the bases underlying the English rule, the Ontario Court of Appeal decided to part from it observing at 360:

"It is true, of course, that the accused is presumed to be sane until the contrary is proved. The presumption of sanity is, however, an evidentiary or procedural rule and does not resolve the basic issue. A rule which permits strong evidence of insanity to be withheld from the court at the option of the accused and thereby permit the conviction of a person who lacks capacity to commit the offence serves no genuine interest of society or the accused. Such a result not only does not accord with the requirements of justice, but is fundamentally wrong and in conflict with the basic principles of a criminal law which, in general, predicates liability upon fault".

1. However, the court did make the following observation at 361 which, in my view, is apposite, in a different context, to the evidence received on the voir dire and referred to later:

"On the other hand, the prosecution, clearly, ought not to be entitled to bolster a weak case that the accused committed the act by weak evidence that the accused was insane, where the admission of such evidence might deprive the accused of a fair trial on the issue whether he committed the act by leading the jury to conclude that he is the sort of person likely to have committed the act charged."

1. The court concluded that, although the Crown had the right to introduce evidence of insanity, a trial judge ought to exclude it in the exercise of his or her discretion until other evidence had been adduced which would warrant a jury being satisfied to the appropriate degree, of the existence of all the elements of the crime charged.

1. I think that at the present time the common law of Australia is that the prosecution has no right to introduce evidence probative only of the issue of insanity until that matter is put in issue by the defence. I hold accordingly, although there is considerable obvious merit in the Canadian position as expounded in Simpson (supra). See also Howard's Criminal Law (5th edn) 473.

1. The Code, s381(1) requires a direction on insanity to be given if "it is given in evidence or appears from the evidence" that the accused was insane at the material time. The section is silent with respect to the right to raise the issue. Sub–section (3) provides as follows:

"The onus of proving the insanity of any such person shall be upon the defence, but the same may be established upon the evidence of the prosecution."

1. I do not understand the last part of the sub–section to affect the operation of s15 and entitle the Crown to adduce evidence on the issue of insanity following the entry of a plea of not guilty. I understand the sub–section to be a reference to evidence for the prosecution adduced after insanity has become an issue. See Hitchens v The Queen [1962] Tas SR 35.

1. However, evidence which tends to prove insanity may be relevant to some other matter which is in issue. If in proper form, such relevant evidence is admissible and can be led by the prosecution unless it is excluded in the exercise of the discretion of the trial judge.

1. The following passage appears in Wigmore on Evidence (Vol.1) 300:

"When an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity."

See also Cross on Evidence (3rd. Australian edn) 79. The reference in Wigmore to the jury improperly considering it must, in the present circumstances, be read down in the light of the statutory direction in the Code, s381(1).

1. On this basis, the Crown sought to adduce certain evidence which, if accepted, was capable of tending to prove that the accused was insane at the material time submitting that it was relevant to another issue and accordingly it was immaterial that the defence had not raised the defence of insanity. I heard this evidence on the voir dire. Shortly stated, that evidence comprised direct evidence that five days after the Crown alleged that the accused killed the deceased, and two days after the body was discovered, the accused was seen in the primates' enclosure at the Melbourne Zoo. The witnesses deposed that the accused was attacking an adult female gorilla in the enclosure by kicking her with his bare feet. He was described as adopting the stance of a gorilla, having a fixed stare as if he had been taking drugs and saying that he had to kill her or words to that effect. After the gorilla had been taken to safety and the accused led away, he was interviewed by a police officer in Melbourne. To this police officer the accused said, with reference to the events at the Zoo, that "he had to kill her" because "it sends me messages"; "it's the gorilla in the mist". He also told the police officer that both his mother and father were dead although the former was not the case. After the police officer made some enquiries, presumably by telephone, he asked the accused why he did not say that his father had been murdered a few days ago and the accused replied "what's to tell, we weren't that together". During this conversation the accused and the police officer were in a Melbourne hospital where the accused was given some treatment for a cut hand. The police officer then arranged for a tape recorder to be sent to the hospital and on its arrival resumed questioning the accused. This account was recorded but the reproduction of sound is poor. The accused was questioned at length about any involvement he might have had in his father's death. The accused said that the last time he saw his father alone was on Thursday 9 November 1989 in the vegetable patch at his father's home at Baker's Beach. Evidence was given on the trial that the accused visited his father on the preceding day, Wednesday 8 November and the Crown case is that the deceased was murdered in the late afternoon of that day. The body was discovered in the vegetable patch three days later. In all, the police officer asked the accused a total of 64 questions during the interview. The accused repeatedly denied any knowledge of or involvement in his father's death.

1. At this stage, it is appropriate to interpolate that the medical evidence given on the trial was that the deceased had died from asphyxia caused by the collapse of his chest consequent upon a total of 33 fractures of the ribs bilaterally and the sternum inflicted with a blunt object. The injuries were, in the opinion of the pathologist, consistent with having been inflicted with an elbow, foot, fist or knee.

1. Following the tape recorded conversation with the police officer at the Melbourne hospital, the accused was examined by a medical practitioner and, in accordance with the relevant Victorian legislation placed under compulsory detention and removed to the Mont Park Psychiatric Unit. There he was examined initially by Dr Cockram, Psychiatric Registrar and later by Dr Shan, a Consultant Psychiatrist. Both these medical practitioners gave evidence. Dr Cockram's evidence was confined to matters of fact. She expressed no expert medical opinion. Dr Shan's evidence comprised both matters of fact and expert opinion.

1. Dr Cockram spoke to the accused on the afternoon of 13 November 1989. He appeared to her to be orientated and with a good memory but was clearly thought disordered and occasionally suffered from thought blocks. She explained thought disorder by saying that the accused expressed himself with poor syntax, poor sentence construction and with gaps but, as a medical practitioner "you can work your way through that". She said that he did respond to her questions appropriately but in a disjointed and often ungrammatical way. By way of illustration she said that the accused told her "I'm a no brain pain computer". She understood that expression to mean that he had a thought disorder and she understood that the accused was telling her that he was having trouble with his thinking. The accused told Dr Cockram that he had come to Melbourne about two weeks earlier to try and sort out where the controlling force was coming from. He said he flew over by plane for the weekend but "couldn't sort it all out" and so went back. He also told her that the preceding night he caught the ferry across from Tasmania to sort things out and find out how the force has been controlling him. She said that he told her he went to the Zoo and jumped in the cage and tried to assault the male gorilla. She noted injuries to his hand. She said that he told her things which gave her the impression that he had not yet quite sorted out why the gorilla was controlling him in the way he said that it was.

1. Dr Shan interviewed the accused at 7pm on 13 November 1989 in the presence of Dr Cockram. He confessed to having little memory of the relevant events and relied upon notes he made shortly after the interview. A typed version of those notes was tendered in evidence on the voir dire. It is convenient to set out the following portion of the exhibit:

"Thin, fair haired man dressed in hospital pyjamas, found watching T.V news calmly. Heavily tattooed. Co–operative at interview.

Affect mildly blunted. No evidence of suspicion or guarded affect towards staff.

Proceeded to answer questions and describe events. Admits to attacking gorilla. Believes that gorilla had been controlling his thoughts and introducing thoughts and pain into his mind for many years. Before he had not worked it out but approximately 18 months ago he had worked out that it was the gorilla. Did not have any explanation as to why gorilla had selected him and expressed the belief that others too, could be controlled by a gorilla in this way.

Stated specifically that he believed that gorilla had a device, electronic, that it used by turning dials (indicated size of device with fingers).

Stated that he had travelled to Melbourne in order to kill the gorilla. Thought this would end the matter.

Discussed father – noted to become more tense, hands became tremulous when talking of father. Stated that he had talked to father and 'left him', and the police questioned him later about his death. Asked how he died, replied 'he did not suffer, it was quick'.

Asked leading questions, patient indicated that he believed father and gorilla were 'good mates', and agreed that they could have been working together against him. Patient was not asked directly if he had killed father, due to agitation.

Denies any recent drug abuse. Admits to previous poly–drug abuse (months).

Opinion – patient suffering from psychotic symptoms. Onset possibly months. Type – paranoid schizophrenia."

1. To the above, can be added an additional piece of evidence given by Dr Cockram that the accused told Dr Shan that he went to visit his father the day he died and when he left he was alright. Dr Cockram agreed that she had learnt from enquiries she had made of others that the deceased had died on Wednesday 8 November 1989.

1. With respect to the evidence of statements made by the accused to the police officer, Senior Constable Dorman, the Crown's submission was that some are admissible as an exception to the hearsay rule in that they constitute admissions and, as such, are admissible to prove their truth. This submission was not seriously challenged by learned senior counsel for the accused. It is correct. It is unnecessary to detail the admissible statements given in answer to questions put by the police officer. It is sufficient to say that none amount to an unqualified admission that the accused caused his father's death but some are capable of being construed as an admission that he was with his father on the day he died although, the accused said that he last saw his father on Thursday (9 November 1989). This answer is inconsistent with an answer given in one of several prior conversations with Tasmanian police officers. Many of the answers given by the accused are exculpatory in that more than once, he expressly denied any involvement in his father's death. Subject to consideration of the exclusion of all or any part of Senior Constable Dorman's evidence in the exercise of a trial judges' discretion, to which I will turn shortly, I rule that all his evidence is admissible. See R. v Williamson [1972] 2 NSWR 281 at 294 – 296; R. v Herbert (1982) 6 A Crim R 1; R. v Cox (1986) 24 A Crim R 434.

1. With respect to the direct evidence given by employees of the Melbourne Zoo of the accused's actions and words in the primate enclosure, the learned Director of Public Prosecutions rightly conceded that, unless the evidence of the medical practitioners is admitted, that evidence is not probative of any issue and consequently irrelevant.

1. With respect to the evidence from the medical practitioners the Crown's submission was:

1That the accused's statement "he did not suffer, it was quick", when asked how his father died and the statement that he had visited his father on the day he died were admissible as exceptions to the hearsay rule, viz, inculpatory admissions.

2That the foregoing statements and the other evidence that he has said that his father and the gorilla were "good mates" and that they could have been working together against him was circumstantial evidence of motive to kill the deceased and that it was the accused who did so.

1. The last submission was developed in this way. The expert opinion of Dr Shan was that the accused was suffering from the mental illness of paranoid schizophrenia. He said that its manifestation was a delusion that the gorilla was tormenting the accused by controlling his thoughts via a small electronic device planted in the accused's head. He said that the accused believed he had to kill the gorilla to end this torment. The Crown's submission was that the psychiatric opinion evidence and the evidence of the events at the Zoo tended to prove that the accused's belief in the delusion was real, deep seated and held to the extent that the accused was prepared to kill the gorilla to end the torment. That is true but the admissibility of that evidence depends upon the validity of the primary submission that the existence of the delusion and the steps the accused took to eradicate the torment are evidence of motive to kill his father. Central to the Crown's submission is the evidence that the accused believed that the gorilla and his father were "good mates" and could have been working together against him. The argument is, as I understand it, that the accused's animus towards the gorilla had reached such a degree that he was attacking it with the intention of killing it to stop the tormenting control it was exercising over him; that five days earlier the accused's father had died a violent death; that the accused believed the gorilla and his father were mates and could be working together against him and therefore it was likely it was the accused who did the violence to the deceased and that his motivation for killing the gorilla was also motivation for killing the gorilla's "good mate".

1. Circumstantial evidence of motive for the commission of a crime is clearly admissible. See Plomp v The Queen (1963) 110 CLR 234; Wilson v the Queen (1970) 123 CLR 334; Alister & Ors v The Queen (1983) 50 ALR 41. In most instances, the motive evidence is of animus from the accused to the victim of the crime or of a reason for the commission of the crime. In this case, there is ample evidence of animus towards the gorilla and reason for wishing to cause the death of the gorilla. But, there is no evidence of animus towards the deceased or reason for killing him other than the fact that the gorilla and the deceased were believed by the accused to be good mates and could be working together. In my opinion that is not evidence upon which a jury could reasonably infer either that it was the accused who killed the deceased or that he was motivated to do so. Motivation to kill A does not transfer to B because A and B were good mates and could have been working together. Accordingly, I rule that the evidence of the events at the Zoo, the psychiatric opinion evidence and that of the accused describing his father and the gorilla as "good mates" is inadmissible.

1. However, the evidence of the accused's statements to Drs Shan and Cockram that he visited his father the day he died and that the deceased "did not suffer, it was quick" are admissible as inculpatory admissions.

1. It is now necessary to consider whether I ought to exclude any or all of the admissible evidence in the exercise of a trial judge's discretion. It is of course, trite law, that relevant to this issue is whether the prejudicial value of the admissible evidence outweighs its probative value and whether it would be unfair to the accused to admit the evidence. With respect to the evidence of Senior Constable Dorman it is clear from the ruling I have made concerning the psychiatric evidence that all references to the gorilla and its effect on the accused should be excluded. Apart from that, I see no basis upon which my discretion should be activated in favour of the accused.

1. With respect to the evidence given by the medical practitioners I should first refer to their cross–examination. Both Dr Shan and Dr Cockram conceded that, at the time of questioning, the accused was in compulsory detention under the provisions of the Mental Health Act (Victoria). Neither warned the accused that he was not obliged to answer any questions but, in the circumstances, nothing appears to turn upon that. Dr Cockram said that the accused appeared to suffer from thought blocks; that is, from time to time there would be an interruption in his thought process followed sometimes by a divergence onto another, unrelated topic. She said however that he appeared to have a good recall of historical events although his speech was disjointed and often grammatically incorrect. Both medical witnesses were certain that the expression "good mates" was coined and expressed by the accused and the expression "he did not suffer, it was quick" was expressed by the accused. Apart from that, their evidence was to the effect that the admissions attributed to him and the reference to the link between his father and the gorilla were not a verbatim account of what he said. Dr Shan referred to some of his answers as being "an impression" he received from words said by the accused. Some of the answers were given in response to leading questions. Dr Shan conceded that the accused's reference to a link between his father and the gorilla was in response to a leading question and his answer might have been no more than acceptance that such a link was a possibility.

1. With respect to the admission that the accused visited his father on the day of his death there is ample other evidence in the Crown case that he did make this visit. With respect to the statement "he did not suffer, it was quick" there is evidence that the accused then knew of the manner of his father's death and thus, it does not follow that that statement is only consistent with the accused being present at the time of death.

1. If I am wrong in holding that the evidence relied upon to establish motive and/or identity is inadmissible, I am clearly of the view that such evidence should be excluded in the exercise of my discretion on the basis that its probative value is so slight given the cross–examination of the medical practitioners and its prejudicial value very high. The Crown case against the accused is, as mentioned at the beginning of these reasons, circumstantial. In short, the Crown relies upon the proposition that it can establish the time of death and that the accused was there at the time of death. The Crown papers include some forensic evidence relating to the finding of blood on the accused's clothes that could have come from the deceased and some, albeit weak evidence that the accused had a financial motive for killing the deceased. There is no direct evidence that the accused killed his father. For reasons expressed earlier evidence of insanity is inadmissible as part of the case for the Crown but, if the evidence of conversations with the medical practitioners concerning a connection between his father and the gorilla is admitted there is a grave risk that the jury will make improper use of that evidence. The risk is that the jury will give undue weight to the admissions to the medical practitioners and insufficient weight to the other admissible evidence. It is highly likely that they will infer that, if the accused was being interviewed by psychiatrists, he was mentally ill and even if there is no evidence of what occurred in the primates' enclosure it is likely that, given the cause of death, the deceased was killed by a mentally disordered person and hence the accused must be guilty.

1. For these reasons I rule that all the evidence given by the employees of the Melbourne Zoo and the medical practitioners on the voir dire is either inadmissible or will be excluded in the exercise of my discretion.