The Queen v Peter John Gibson
[2006] ACTSC 114
THE QUEEN v PETER JOHN GIBSON
[2006] ACTSC 114 (24 November 2006)
TRIAL BY JUDGE ALONE – Assault and recklessly inflict grievous bodily harm – part of ear bitten off.
MENTAL STATE DEFENCES – Sane automatism – evidence of mental illness – special verdicts of not guilty by reason of mental impairment.
Supreme Court Act 1933, s 68A
Criminal Procedure Act 1986 (NSW), s 33
Crimes Act 1900, s 321, 322, 324
Fleming v The Queen (1998) 197 CLR 250
R v Massey [2000] ACTSC 107
R v Tran [2003] ACTSC 53
R v Collins [2004] ACTSC 48
R v Blevins (1988) 48 SASR 65
R v Kaufusi [2005] NSWCCA 434
Ryan v The Queen (1967) 121 CLR 205
The Queen v Falconer (1990)171 CLR 30
R v Milloy [1993] 1 Qd R 298
Bratty v Attorney-General (Northern Ireland) [1963] AC 386
R v Radford (1985) 42 SASR 266
No. SCC 106 of 2006
Judge: Connolly J
Supreme Court of the ACT
Date: 24 November 2006
IN THE SUPREME COURT OF THE )
) No. SCC 106 of 2006
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PETER JOHN GIBSON
ORDER
Judge: Connolly J
Date: 24 November 2006
Place: Canberra
THE COURT ORDERS THAT:
In relation to count 1 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did assault Kathleen Mary Gimson, there be entered a verdict of not guilty by reason of mental impairment.
In relation to count 2 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did recklessly inflict grievous bodily harm on Deborah Anne Gimson, there be entered a verdict of not guilty by reason of mental impairment.
In relation to count 3 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did assault Trent Madders, there be entered a verdict of not guilty by reason of mental impairment.
Peter John Gibson submit to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to make a mental health order.
The accused, Peter John Gibson, stands charged that he did on 26 September 2004 at Canberra assault Kathleen Mary Gimson, that he did on the same day recklessly inflict grievous bodily harm on Deborah Anne Gimson, and that he did on the same day assault Trent Madders. He pleaded not guilty to the charges. He had, in accordance with the provisions of s 68A of the Supreme Court Act 1933 (the Supreme Court Act) elected to be tried by judge alone. The procedures to be followed in a trial by judge alone are set out in s 68C which relevantly provides:
68CVerdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge, and the findings of fact on which the judge relied.
An accused person may elect to be tried by judge alone in several States, as well as in the Australian Capital Territory, but not for an offence under Commonwealth law, because of the effect of s 80 of the Constitution. The third count on this indictment relates to an assault allegedly committed on Trent Madders, who was an Acting Sergeant in the Australian Federal Police. In respect of this act the accused was originally charged, on a joint indictment of 27 June 2006, with the offence of intentionally causing harm to a public official, which is a Commonwealth offence, and may not be tried by judge alone. On the morning allocated for this trial this difficulty came to light. The Crown indicated that it would file a fresh indictment, with the third count to be a charge of common assault. The accused, through his counsel, indicated that he wished the matter to proceed, and filed a fresh election to be tried by judge alone. I then indicated that I would in effect allocate the time allotted to the original trial to the trial on these fresh charges, and the matter proceeded.
The High Court has set out the appropriate procedure to be followed by a judge conducting a trial by judge alone. Fleming v The Queen (1998) 197 CLR 250 concerned a trial pursuant to the equivalent provisions in New South Wales, being s 33 of the Criminal Procedure Act 1986 (NSW). The Court held that a judge who conducted such a trial had to set out the principles of law applied, and the findings of fact on which he or she relied. A bare statement of the principles of law that the judge had applied and the findings of fact that the judge had made, were not sufficient. The reasoning process linking them had to be exposed, and the findings and ultimately the verdict had to be justified.
In the Australian Capital Territory there have now been a number of decisions which guide me in my approach. In R v Massey [2000] ACTSC 107, Einfeld J concluded that the obligations imposed by s 68C of the Supreme Court Act were essentially the same as those identified in Fleming. His Honour held that it was the obligation of the Court to state each and every legal principle that it applied in reaching its findings as to the accused’s innocence or guilt. He noted that this obligation was not limited to responding to and addressing the parties’ submissions on the proper legal principles to be applied, but extended to seeing whether any further legal principles, warnings or directions were relevant. This approach has been followed in subsequent trials by judge alone.
In R v Tran [2003] ACTSC 53 Gray J said at [4]:
I direct myself in accordance with the law in relation to all of the matters to which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find all the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.
It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
This statement was endorsed by Weinberg J in R v Collins [2004] ACTSC 48, and with respect I would also endorse it.
The Prosecution Case
The prosecution case is that on Sunday, 26 September 2004 the accused was at home at his house in Ainslie with his wife, Kathleen Gimson, their infant son Gerad Gibson, and the accused’s sister-in-law, Deborah Gimson, who was visiting them from Queensland to see their new baby. During the day, Kathleen Gimson noticed that the accused was exhibiting unusual behaviour such as asking strange questions that evidenced his lack or orientation to his environment, pacing around the house, asking that his wife and sister-in-law not leave the house, and telling them to make sure that he did not leave either. The accused had not slept for at least two prior nights. Kathleen Gimson had never seen her husband display this type of behaviour before, and discussed with her sister the need for the accused to see his doctor the next day.
Sometime between 7 pm and 9 pm that night the accused went to bed. Kathleen Gimson went to bed with the accused at about 9.30 pm. At about 10.30 pm the accused screamed “I can’t take this anymore” and then threw himself on the floor. Kathleen Gimson thought that he was having a fit and attempted to assist by sitting astride him and ensuring that he did not swallow his tongue. The accused then calmed down and said “I’m feeling OK”. Kathleen Gimson then got off the accused and he walked out of the bedroom through the laundry and out into the back garden of the house. Kathleen Gimson followed the accused through the house. When she got to the laundry she noticed that he was coming back into the house. The accused grabbed Kathleen Gimson around the neck and then attempted to put his fingers into her mouth, causing her to fall to the ground. This is said to constitute the first count on the indictment.
Kathleen Gimson then started to struggle with the accused and tried to push him off her. The accused suddenly stopped struggling with Kathleen and screamed “Ring Gordon, ring Gordon”. Gordon was a family friend who had visited earlier that day.
The accused then grabbed the family dog and started to bite its hindquarter. He then attempted to bite the dog’s head, and a struggle ensued between the defendant and Kathleen Gimson, who pulled the accused off the dog. The accused continued to say “Ring Gordon, ring Gordon”. Deborah Gimson entered the laundry during this incident and noticed the accused was on top of the dog and trying to bite it. Kathleen asked her sister to “Ring Gordon”, saying that she really meant for her to call help.
The accused left the laundry. Kathleen went to check on their son who was in the living room, and Deborah went to the main bedroom to look for the telephone. When Deborah was in the bedroom the accused entered the room. He paced around the room and kept saying “Ring Gordon”. Deborah spoke to him to try to keep him calm and asked him to help find Gordon’s number. The accused came towards her and put his hands around her neck and pulled her down on to the bed. Deborah lay on the bed in a curled up position. The accused then bit and chewed on her left ear. Deborah yelled “get off me”. Kathleen ran into the bedroom. She saw Deborah lying on the bed and the accused lying sideways on the bed. Kathleen saw the accused grab Deborah and bite her on the left ear. The bite removed a section of Deborah’s ear about 4 cm by 2 cm. Police were unable to locate the section of ear that was bitten off. This is said to constitute the second count on the indictment.
Kathleen pulled the accused off Deborah and saw blood. Kathleen yelled at Deborah to run and get the baby and ring the police. Kathleen then lay on top of the accused and he appeared to go limp. After a period of time the accused and Kathleen got up and left the bedroom. Kathleen then stopped the accused from leaving the house and the accused and Kathleen ended up on the floor in the baby’s room.
At around 11.30 pm Sergeant Trent Madders attended the accused’s house and saw Deborah run into the house. He heard Kathleen scream from inside the house and then saw Deborah run outside. He entered the house. The accused and Kathleen were struggling on the floor of the hallway. Sergeant Madders, who was in uniform, identified himself as a police officer and asked Kathleen to get off the accused. Kathleen said that if she got off the accused he would attack Sergeant Madders. Sergeant Madders again told Kathleen to get off the accused. She complied, and the accused punched Sergeant Madders in the face, striking his upper lip and left cheekbone. The accused then kicked Sergeant Madders’ left leg causing him to fall against the wall and then onto the ground. This is said to constitute the third count on the indictment.
Sergeant Madders sprayed capsicum spray into the accused’s face, which incapacitated the accused. Sergeant Madders told Kathleen to leave the house. He then handcuffed the accused. Two other police officers arrived. They said the accused was talking and yelling incoherently. He was placed in a caged police vehicle, and conveyed to the City Watch House, and then to Canberra Hospital for a Mental Health Assessment.
The injury to Deborah Gimson’s ear was treated and stabilised at Canberra Hospital, where she was told that she would require a series of procedures to reconstruct the ear. As she was resident in Brisbane, she elected to have this treatment performed in Brisbane. She has undergone five operations under general anaesthetic to surgically reconstruct the ear.
The issues at the trial
The real issue at the trial went to whether the conduct of the accused was voluntary. He was taken from the City Watch House to the Canberra Hospital where he was admitted to the Psychiatric Unit, and was subject to an involuntary treatment order for one week. It is the defence case that his actions were involuntary, and amounted to sane automatism. The prosecution acknowledged that there was sufficient evidence, both from the accounts of the witnesses of his conduct on the night, and the medical records from the Canberra Hospital, to raise the question of voluntary conduct, and that it would be open on the evidence to return a special verdict of not guilty by reason of mental impairment. The prosecution argued that there was no evidence to support a verdict of not guilty by reason of sane automatism.
There was also an issue raised by the defence as to whether the accused’s conduct in biting off part of Deborah Gimson’s ear amounted to grievous bodily harm. It seems to me appropriate to address this issue first.
The conduct
There was no dispute at the trial that the conduct of the accused, if voluntary or willed, would amount to an assault on Kathleen Gimson and Trent Madders, and I would so direct myself and so find. The action of placing his hands around Kathleen’s neck and placing his fingers in her mouth, clearly would amount to an assault on her. The action of punching and kicking Trent Madders would clearly amount to an assault on him.
The direction that I would give to a jury would be that an assault at law comprises four elements, being:
· A striking, touching or application of force or threat of striking, touching or application of force.
· That it be without consent
· That it be intentional.
· That it be without lawful excuse.
I would be satisfied beyond reasonable doubt as to the first, second and fourth aspects of this definition.
In relation to the biting off of part of Deborah Gimson’s ear, I would be satisfied that this was an assault in that it satisfied the first, second and fourth aspects of the definition of assault. The offence here charged is recklessly inflict grievous bodily harm. I would direct the jury that the conventional expression “grievous bodily harm” means “really serious harm”. I would be mindful in directing the jury to avoid further gloss on this definition, bearing in mind the remarks of King CJ in R v Blevins (1988) 48 SASR 65 at 68 that:
... it is desirable that the jury should be directed by using the expression “grievous bodily harm” and that generally speaking it is unnecessary and even undesirable to offer an explanation. If explanation is thought to be necessary, it should be confined to the expression “really serious bodily harm”.
I would also direct the jury’s attention to the statutory definition contained in the dictionary to the Crimes Act 1900 (the Crimes Act) that provides that:
grievous bodily harm to a person includes-
(a) any permanent or serious disfiguring of the person;
The evidence in relation to the biting off of a portion of Deborah Gimson’s ear comprises a series of photographs – the first series being taken at the scene by Constable Viney (Exhibit D), a second series taken between 29 September 2004 and 25 May 2006, showing the various stages of reconstruction from the original open but cleaned wound (Exhibit E), and a third series taken on 21 or 22 September 2006 showing the final reconstructed left ear and the right ear (Exhibit F). There is also a statement from the Senior Registrar, Plastic Surgery, at the Canberra Hospital who saw Deborah Gimson on the night of the attack. Her notes were recorded in handwriting (Exhibit B) and counsel were in agreement that they read:
About 1400 hours on 27.9.2004 at The Canberra Hospital, I examined Ms Gimson, Deborah. Based wholly or substantially on the above knowledge. I am of the opinion that Ms Gimson was allegedly assaulted. (Human Bite) on her left ear. On clinical examination I found defect of left ear. (Part of helix and anthelix missing (4x2 cm) and multiple bite marks extended on the anthelix of left ear. Wound was cleaned/dressed. Antibiotics were give (intravenous and course of oral antibiotic). Ms Gimson expresses her wish to have further treatment by specialist, Brisbane Queensland.
There is also a report from Dr Ingram, her treating plastic surgeon (Exhbit C). This states:
Mrs Gimson was referred to see me on the 28th September 2004 following a sub-total amputation of her left ear. She informed me that her ear had been bitten off by her brother, who she had been visiting in Canberra several days prior to her first consultation with me. Immediately following the injury she had presented to a hospital in Canberra where first aid had been rendered but no formal reconstructive procedure had taken place.
Mrs Gimson underwent an initial procedure under my care on the 28th September to debride a wound to her left ear and cover exposed ear cartilage with mastoid skin. Following healing of this wound, arrangements were made to reconstruct her ear in a staged manner. Subsequently Mrs Gimson has undergone several procedures to reconstruct her left ear. The first of these took place on the 17th November 2004 when a costal cartilage graft was inserted beneath mastoid skin. Mrs Gimson underwent a subsequent stage on the 8th March 2005 when the reconstructed ear was separated from the mastoid and a full thickness skin graft was placed in the space between the new ear and the mastoid process. Mrs Gimson underwent a subsequent procedure on the 22nd June 2005 to improve the shape and appearance of her reconstructed ear by slightly modifying the cartilage graft and releasing some contractures with Z-plasties. Mrs Gimson underwent a final reconstructive procedure on the 9th November 2005 to further reshape cartilage graft and correct a postauricular contracture.
Deborah now has a very acceptable left auricular reconstruction, however the new ear is a little thick, stiff and insensate. Deborah also complains of mild cold intolerance. At this time however we have no plans for further reconstructive efforts.
In cross-examination, Deborah Gimson acknowledged that she normally wore her hair over her ear. It was put to her that the cosmetic repair had been very successful, and she said that:
It’s been successful in that it’s given me a replicated version of it, I would say that.
She agreed that it was the work of a skilled surgeon. She agreed that she had had the ear repaired and was getting on with her life.
I would have left the question of whether the injury to the ear amounted to grievous bodily harm to the jury. I am mindful of R v Kaufusi [2005] NSWCCA 434 where the biting off of part of an ear was the basis of a charge of inflict grievous bodily harm. As a judge alone, I would then be satisfied beyond reasonable doubt that the biting off of a 4 cm by 2 cm section of the left ear did amount to a really serious injury and that, although there has been a reconstruction of the ear, there is still obvious scarring and there has been a permanent disfigurement. I am satisfied that the conduct, subject to voluntariness, amounted to infliction of grievous bodily harm.
It follows that I am satisfied, to the requisite standard, that the Crown has proven the physical elements of both the common assaults and of the recklessly inflict actual bodily harm. The real issue is whether the conduct of the accused was voluntary.
Was the conduct voluntary - Mental state defences
It is of course fundamental to our law that the prosecution must prove, not merely that the accused performed the physical acts which constitute the offence, but that the accused did so consciously and willingly. As Barwick CJ said of the offence of murder in Ryan v The Queen (1967) 121 CLR 205 at 213:
It is basic, in my opinion, that the “act” of the accused, of which one or more of the various elements of the crime of murder as defined must be predicated must be a “willed”, a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended.
It is of course impossible to retrospectively look into the mind of every accused person and, accordingly, there is a well-established presumption that the act of an accused is voluntary. As Mason CJ, Brennan and McHugh JJ said in The Queen v Falconer (1990)171 CLR 30 at 40-41:
The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions.
It was made clear from the pre-trial directions hearings in this matter that the defence would raise the issue of sane automatism as the defence to these charges. Sane automatism arises where an accused’s acts were involuntary, not because of mental disease or natural mental infirmity, but because of the operations of events upon a sound mind: (per Dean and Dawson JJ in Falconer at 61). There is thus a distinction between involuntary actions as a result of mental impairment and automatism. The Crown is entitled to rely on the presumption that a person is of sound mind, and a verdict of not guilty by reason of mental impairment can only be returned where there is evidence to establish, on the balance of probabilities, that there was mental impairment in the requisite sense. As Dean and Dawson JJ said in Falconer (at 63):
But if on the evidence an accused’s acts may have been involuntary as a result of the operation of events upon a sound mind - as a result of sane automatism - then a reasonable doubt about the voluntariness of those acts will be sufficient to entitle him to acquittal.
The defence of sane automatism is an alternative and inconsistent defence to that of mental incapacity. As de Jersey J (as he then was) noted in R v Milloy [1993] 1 Qd R 298 (at 302):
... defence of automatism is open only if the condition is not the result of unsoundness of mind, or as it is put, only if it is non-insane automatism ...
Where the conduct is explained by mental illness, the appropriate verdict may be that of not guilty by reason of mental incapacity. As Lord Denning noted in Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 410:
... if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a defence of automatism. Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean that he would be let at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others.
King CJ in R v Radford (1985) 42 SASR 266 at 273 stated the law in similar terms in saying:
If the conduct which would otherwise be criminal is involuntary, the accused is entitled to acquittal unless the involuntariness results from disease of the mind. If it results from disease of the mind, the accused is guilty unless the evidence proves on the balance of probabilities that the conduct resulted from a defect of reason caused by the disease of the mind in consequence of which the accused did not understand the nature and quality of his actions or did not know that they were wrong.
Where the defence raises automatism, the defence bears an evidential burden only, and it is for the Crown to negate automatism beyond reasonable doubt.
In this case, the defence chose to lead no evidence, submitting that there was sufficient evidence lead in the Crown case to raise the question of automatism. This arises from the evidence of the victims and the attending police.
It is apparent from the facts as opened in the Crown case that the accused’s behaviour on this night was bizarre in the extreme. His wife gave evidence that during the afternoon he had been acting in such a way that “led me to believe that he wasn’t really in connection with what was happening around him” (T 22). She said that he woke up screaming and threw himself on the floor, and she put her fingers in his mouth, thinking he was having a fit. He then seemed to “come back to the situation” before leaving the room and going out of the house (T 23). He then came back in “and appeared to be very stressed and grabbed me around the mouth or the face” when the assault occurred. She described the bizarre nature of the attack on the dog, and said that his eyes were glazed at the time. She said that while she was restraining him, after the biting of her sister’s ear, he would relax for periods, and then again become agitated. She was obviously concerned that he might harm himself or others.
Deborah Gimson said that on the day before the incident and during the day of the incident the accused was behaving unusually by way of inappropriately breaking into conversations. She observed him wiping a table down with unusually drawn out and exaggerated movements (T 50). She observed that her sister would have to say to him, “Peter come back” and he would then return to a more normal state.
She also observed the attack on the dog, where he was biting and pulling at the dog’s hair (T 51). She then ran to the bedroom to find the telephone, and this is where the attack on her took place. In cross-examination she agreed that the accused’s behaviour had become more out of character and more bizarre as the day wore on (T 60). She described his face as she was trying to calm him in the bedroom before he attacked her. It is worth setting this part of the cross-examination out in full (T 62-63):
You were trying to placate him I think by talking to him? --- Yes.
And at that stage it appeared to you that he was effectively out of control, isn’t that so? --- He was very calm, had very - yes I would say that, yes.
It’s an interesting answer, when you say he was very calm, do you mean that he was emotionless as he approached you? --- Yes, emotionless, calm, and a very - the eyes were very piercing.
Glazed, fixed? --- I’d say fixed.
Not saying anything to you to indicate any disordered thought or any wish to harm you? --- The eyes were very vacant, very fixed but - I had a sense of danger - I was just asking him how can - help me, help me ring – to help me find this number.
Precisely because you did have a foreboding of danger I think? --- Yes.
Is that a fair thing to suggest? --- Yes.
And your observations of this fixed vacant look is that about the time when he seized you around the neck and threw you onto the bed? --- Yes.
Sergeant Madders, who was the first police officer at the scene, said that his observation was that the accused “didn’t appear rational in any way or drug-affected or alcohol- affected in any way” (T 71). He said that he was talking or yelling in an “incoherent” manner (T 71). After disabling him with capsicum spray, the accused was taken to the City Watch House where, in accordance with normal procedure, he was offered decontamination by way of a flush to the eyes, which he declined. Sergeant Madders said that this was unusual because the spray is painful and the decontamination would assist in removing the pain. He said that he decided that the accused needed psychiatric assessment (T 72).
The other material which the defence relies upon to raise sane automatism is the hospital notes concerning his subsequent admission to the Canberra Hospital psychiatric unit. This material contains a number of provisional diagnoses. There is a discharge diagnosis of:
?Brief Psychotic Disorder with stressors
Cluster B Personality Disorder (Narcissistic/Histrionic)
Cannabis Abuse
This discharge summary indicates a previous admission to Calvary Hospital 10 years earlier with a Brief Reactive Psychosis. It indicates that he was discharged to the care of his general practitioner and a psychiatrist and was on the medication Diazepam.
There are earlier reports from 1998, where Dr Rosenman indicates treatment for an affective psychosis, with:
a good history of a bipolar illness in which at least two episodes of elevation have been converted into psychosis, probably by the use of marijuana.
This diagnosis was in response to a request for a consultation by his general practitioner, Dr Hogg, who set out a history of an acute psychotic breakdown in June 1993 requiring hospitalisation, and a mid-May 1994 episode where he did not require hospitalisation. She speaks of “his complex psychiatric problems”.
I accept that the accused merely has an evidential burden to raise the possibility of sane automatism, and that it is then for the Crown to refute this beyond reasonable doubt. In this case the accused has chosen to call no evidence, and points instead only to elements of the Crown case going to his bizarre behaviour and the hospital notes. The hospital notes, to my mind, point only to a recurrence of a pre-existing psychiatric condition, rather than sane automatism. This is supported by his wife’s evidence that, since his discharge and since she resumed living with him some months after discharge he has continued to receive psychiatric treatment and medication.
There has been considerable discussion in the authorities in relation to the type of material that would normally be before the court where sane automatism is to be raised. In Falconer Deane and Dawson JJ said at 61:
The onus of proving guilt remains with the prosecution and that onus is not discharged if an accused is able to raise a reasonable doubt. Of course, common experience teaches us that a person’s will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstances that an accused’s acts occurred independently of the exercise of his will or to raise a doubt whether that was so. It is sometimes said in that situation that the accused is required to rebut an evidentiary presumption or to discharge an evidentiary burden of proof, but it is merely a requirement that there be evidence to displace ordinary human experience. And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised. Moreover, those conditions which will admit of involuntariness that is not the product of disease or natural mental infirmity will be quite confined. The few suggested instances would seem to include: sleepwalking in some circumstances, some cases of epilepsy, concussion, hypoglycaemia and dissociative states.
Their Honours concluded at 63 that:
It follows that, in a case where an issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt.
This further reinforces in my mind the need for positive medical evidence in support of the hypothesis of sane automatism.
The desirability of there being some medical evidence supporting a hypothesis of sane automatism was, it seems to me, acknowledged by Mason CJ, Brennan J and McHugh JJ in Falconer where they cited with approval (at 41) the remarks of Lord Denning in Bratty v Attorney General (Northern Ireland) where his Lordship said:
In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity.
In Falconer Gaudron J said at 83 that:
In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state.
There is simply no such evidence in this case.
Counsel for the Crown indicated in her submissions that, if this was a trial by jury, the Crown would submit that there was insufficient evidence of sane automatism even to go to the jury. Certainly, it is a very unusual case in which an accused seeking to raise this defence chooses to call no evidence at all. However, I would allow the matter to go to a jury, but would direct the jury along the lines of the law as I understand it to be from the above extracts from Falconer. Accordingly, I am satisfied that the Crown has established beyond reasonable doubt that the accused’s actions were not the result of sane automatism. The only material giving rise to the hypothesis is lay opinion as to his glazed or fixed eyes, incoherent speech and bizarre behaviour. This material, while I accept it as true, seems to me, is quite ambivalent as to whether the admittedly bizarre behaviour is a consequence of sane automatism or mental illness. Given the evidence that the accused was immediately admitted to the psychiatric unit, subject to an involuntary detention order and diagnosed with a mental illness, and that the hospital notes indicate earlier presentations and hospitalisations, I am satisfied beyond reasonable doubt that the Crown has refuted sane automatism as a defence.
Having considered all of the evidence and rejected the hypothesis of sane automatism, I am left with the question of the accused’s state of mind at the time of these offences. I am in the position described by Deane and Dawson JJ in Falconer as follows (at 63):
If, however, the prosecution disproves sane automatism and the evidence raises the question of insane automatism, the jury will have to ask themselves whether, on the balance of probabilities, the evidence establishes insanity… That will, as we have said, embrace insane automatism. If the evidence does establish insanity, an accused will be entitled to an acquittal, but the jury will be required to say that the acquittal is on account of unsoundness of mind. If the prosecution does disprove sane automatism and if insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict.
The same point was made by Gaudron J at 86 where her Honour noted that there will be practical difficulties in a trial where the evidence raises both a hypothesis that an act was done involuntarily by a healthy mind (automatism) and evidence that the accused had a disease of the mind. Her Honour said:
... even if involuntariness and insanity are raised as separate and distinct issues, there is no need to modify the ordinary rules as to the onus and standard of proof applicable to each of those issues. As between those issues, the jury should be directed to consider first whether the prosecution has proved its case beyond reasonable doubt by negativing the possibility that the accused was acting involuntarily as a result of some mental state which is or may be experienced by a healthy mind. It should then be directed that, if the first question is answered against the accused (and assuming that the other elements of the offence are established beyond reasonable doubt), it should consider whether there should be a verdict of not guilty by reason of unsoundness of mind. And, of course, it will be necessary to explain that the defence of insanity or unsoundness of mind need only be proved on the balance of probabilities but that the accused bears the onus of proving it.
In most trials it will be the defence that seeks to raise the issue of insanity and it will be the defence that brings the evidence. In this trial, counsel for the defence made it clear that it was the defence of automatism on which he sought to rely. However, it seems to me that it is for the Court, if issues going to insanity are raised, to deal with the matter. Counsel for the Crown, in her opening and closing submissions, made the concession that the medical material in this case, taken with the lay reports of the bizarre behaviour of the accused, would mean that it would be open for a jury to find, on the balance of probabilities, that the accused at the time of the conduct was, by reason of his mental state, not criminally responsible for the conduct.
It seems to me that the concessions by the Crown were quite proper. The material in the hospital records (Exhibit G) satisfies me, on the balance of probabilities, that the accused, at the time of this conduct, was suffering from a psychotic disorder such that he was not responsible for his actions.
In the Australian Capital Territory, the Crimes Act has made some modifications to the common law in relation to the procedure to be followed in relation to a finding of not guilty by reason of mental incapacity. Division 13.3 provides for a special verdict of not guilty by reason of mental impairment, and I understand this to correspond to the common law concept of not guilty by reason of insanity, as explained in Falconer.
There is a special provision in s 321 of the Crimes Act, not applicable in this trial, which provides that where an accused pleads expressly that he or she is not guilty by reason of mental impairment, and where the Court considers the verdict appropriate, and the Crown agrees to the entering of the verdict, the Supreme Court must enter that verdict. This special procedure is clearly contemplated for an abbreviated procedure in the absence of a jury. I do not understand s 321 to have the effect that this is the only circumstance in which such a verdict may be entered, and indeed s 322 of the Crimes Act provides:
Explanation to jury
If, on the trial by jury of an accused charged with an indictable offence, evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment, the court shall explain to the jury the verdicts that may be returned at the trial and the legal and practical consequences of those verdicts.
I take it from this that it is not only open to me to proceed to consider this question, but that it is indeed a requirement, even in the absence of evidence from the accused, and in the absence of the accused expressly making the plea. I should add that I do not understand the various dicta in Falconer referring to the accused person raising the defence of not guilty by reason of insanity to preclude the possibility of the matter going to the jury in the absence of an express plea at common law, but s 322 makes it clear that, if evidence raises the issue, the jury should be instructed. In a trial by judge alone, it follows that I am required, in the face of the material referred to above, and the very proper concessions made by the Crown, to consider the matter, and I have, after considering this material, made the finding that the accused is not guilty of the offences charged by reason of mental impairment.
I therefore direct that a verdict be entered in respect of each count on the indictment of not guilty by reason of mental impairment.
Disposition following a verdict of not guilty by reason of mental impairment.
At common law, the consequence of a verdict of not guilty by reason of insanity was indefinite detention at the Governor’s pleasure. This has, to the benefit of the entire community, been modified by statute in all Australian jurisdictions. In the Australian Capital Territory, there are two provisions going to disposition, depending on whether the offences are “serious” or “non-serious”. A serious offence is defined as “an indictable offence involving actual or threatened violence” (Crimes Act, s 300). I am satisfied that the offences of assault and recklessly inflict grievous bodily harm are serious offences.
The relevant provision where a verdict of not guilty because of mental impairment is entered is s 324 of the Crimes Act, which provides:
Supreme Court orders following special verdict of not guilty because of mental impairment – serious offence
(1) If an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court shall order that the accused be detained in custody until the tribunal orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.
(2)If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.
This section has the effect that the default position is that, following a special verdict of not guilty because of mental impairment, the accused should be detained in a secure environment until the Mental Health Tribunal has had the opportunity to review the matter and determine otherwise. Depending on the circumstances of the individual, this might be a matter of months or years, if they are a continuing threat to themselves or the community. There is provision, however, for the Supreme Court to avoid detention and to order that the person submit to the jurisdiction of the Tribunal, which may make orders concerning their ongoing treatment in the community. In doing so, the Court must consider the criteria for detention set out in s 308 of the Crimes Act, which sets out criteria for detention for a person with a mental impairment. It provides that:
Criteria for detention
... in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:
(a)the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future;
(b)whether or not, if released -
(i)the accused’s health and safety is likely to be substantially impaired; or
(ii)the accused is likely to be a danger to the community;
(c)the nature and circumstances of the offence with which the accused is charged;
(d)the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;
(e)any recommendation made by the tribunal as to how the accused should be dealt with.
In submissions at the conclusion of the trial, I raised with counsel the question of how I should proceed should I make a finding of not guilty by reason of mental impairment. I indicated that I would take into account the following matters pursuant to s 308.
In relation to the nature of the impairment, I consider that the accused had an episode of psychosis in which he was frankly violent. This involved not only these offences, but also, according to the hospital notes, an incident the next day while in the psychiatric unit when he attacked a patient. I am however satisfied that this period was brief and that the involuntary detention order made by the tribunal was able to be lifted after one week, and the accused was able to be discharged into the community, where he has remained, under care and medication, ever since. Subject to this continuing, there is no threat apparent. The first criterion favours release.
I am satisfied that the accused is neither a threat to himself nor the community if released. The second criterion favours release.
These were disturbing offences of violence, which must have been very traumatic for the victims, primarily Deborah Gimson, and also for Kathleen Gimson. I must take this into account. I have heard evidence from both of them, however, that there has been no recurrence. He continues to reside with his wife and child and is engaged in full-time and quite challenging employment in a major Commonwealth Government Department. He is under the care of a psychiatrist, and takes appropriate medication. On balance, the third criterion favours release.
The fourth criterion, on its face, favours release.
In relation to the fifth criterion, the Mental Health Tribunal did make an order for involuntary detention immediately after these offences, but it lifted this order after one week. This seems to favour release.
I am therefore satisfied that, having regard to the criteria in s 308, it is more appropriate that he submit to the jurisdiction of the Mental Health Tribunal which may or may not consider it appropriate to make a formal order concerning his future treatment. Counsel for the Crown and the accused indicated in submissions that they would not wish to demur from this outcome, although of course there may be an issue before the Tribunal as to the nature and extent of any order.
I therefore make the following orders:
(1)In relation to count 1 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did assault Kathleen Mary Gimson, there be entered a verdict of not guilty by reason of mental impairment.
(2)In relation to count 2 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did recklessly inflict grievous bodily harm on Deborah Anne Gimson, there be entered a verdict of not guilty by reason of mental impairment.
(3)In relation to count 3 of the indictment of 6 November 2006 that alleges that Peter John Gibson on 26 September 2004 at Canberra did assault Trent Madders, there be entered a verdict of not guilty by reason of mental impairment.
(4)I order that Peter John Gibson submit to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to make a mental health order.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 24 November 2006
Counsel for the Prosecution: Ms M Jones
Solicitor for the Prosecution: ACT Director of Public Prosecutions
Counsel for the Defence: Mr J Pappas
Solicitor for the Defence: Sheila Foliaki-Singh & Associates
Dates of hearing: 6 and 7 November 2006
Date of judgment: 24 November 2006
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