Walsh, Lewis Alex v The Queen - [1993] TASSC 91

68/1993

PARTIES:  WALSH, Lewis Alex
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO:  CCA47/1992
DELIVERED:  19 August 1993
HEARING DATES:  30 October, 2 November 1992, 2, 3, 8 March 1993
JUDGMENT OF:  Cox, Crawford, Zeeman JJ

CATCHWORDS:

Criminal Law – Appeal – Unsafe and unsatisfactory verdict – Verdict of guilty of murder quashed and verdict of not guilty on ground of insanity substituted.

Chidiac v R[1991] HCA 4; (1991) 171 CLR 432, Chamberlain v R (No 2)[1984] HCA 7; (1984) 153 CLR 521 and Morris v R[1987] HCA 50; (1987) 163 CLR 454, applied.
R v Matheson(1958) 42 Cr App R 145, R v Shearsmith(1967) Qd R 576, Taylor v R(1978) 22 ALR 599 and Hall (1988) 36 A Crim R 368, considered.

Criminal Law – Criminal liability and capacity – Insanity – Presumption of sanity – Self-defence – Insane beliefs to be disregarded once jury has rejected insanity.

Criminal Law – Criminal liability and capacity – Self-defence – Insane beliefs forming basis of accused's belief as to circumstances – Insanity rejected by jury – Insane beliefs to be disregarded.

Criminal Law – Murder – Self-defence – Insane beliefs forming basis of accused's belief as to circumstances – Insanity rejected by jury – Insane beliefs to be disregarded.

Criminal Code, ss15, 16(1), (2), (3), 46.
Hawkins v R (No 2) Serial No 41/1993, applied.

REPRESENTATION:

Counsel:
             Appellant:  A G Melick & R Browne
             Respondent:  M A Stoddart & J N Perks
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: A68/1993
Number of Paragraphs: 45

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
CRAWFORD J
ZEEMAN J
19 August 1993

ORDERS OF THE COURT:

Appeal allowed.

Verdict of guilty of murder quashed and the following verdict substituted:

"The accused (appellant) committed the act charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law."

Order that the appellant be dealt with as a mentally disordered person who has become subject to the criminal process.

Direct the Registrar to notify the Attorney-General of the Court's orders.

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
19 August 1993

I agree with the reasons for judgment prepared by Crawford J and with the orders he proposes.

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
19 August 1993

At about midnight at the end of 28 March 1991 the appellant killed Peter Graeme Bail by deliberately discharging a shotgun at his chest from fairly close range, some evidence suggesting about three metres. He was convicted of murder and has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] TASSC 91
Decision Date: 19 August 1993

CaseChat Overview and Summary

The Court of Criminal Appeal was asked to consider an appeal by the appellant, Lewis Alex Walsh, against a conviction for murder. The appellant had shot and killed Peter Graeme Bail, with whom he had spent the evening, and claimed to have acted in self-defence, believing that Bail was an enemy soldier attacking him. The appeal focused on two primary grounds: whether the trial judge misdirected the jury on the application of the insanity defence, and whether the jury's guilty verdict was unsafe and unsatisfactory. The Court found that while the trial judge's direction on the insanity defence was partially erroneous, the overall verdict of guilty was unreasonable and should be overturned. The Court concluded that the evidence supported a finding of insanity due to post-traumatic stress disorder, and thus the verdict of guilty of murder was quashed, and a verdict of not guilty by reason of insanity was substituted. The Court ordered that the appellant be dealt with as a mentally disordered person and notified the Attorney-General of the decision.

Orders