The Queen v Wilson[1997] QCA 423

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.

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.

Hawkins v. R. (1994) 179 C.L.R. 500

Schultz v. R. [1982] W.A.R. 171

R. v. Apostilides (1984) 154 C.L.R. 563

Counsel: Mr M. P. Irwin for the applicant/appellant.

Mrs L. Clare for the respondent.

Solicitors: Legal Aid Queensland for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Dates: 17 and 18 September 1996.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12 August 1997

The circumstances relating to this appeal are set out in the joint reasons of the President and Lee J. which I have read.

The applicant was to stand trial on 24 April 1995 when, owing to apparently irrational and aggressive behaviour culminating in dismissal of his then legal representatives, that trial was aborted.  The question of his fitness for trial was referred to the Mental Health Tribunal and he was on 9 February 1996 held fit to be tried, by de Jersey J.  He came up for trial again in April 1996 and was convicted before Fryberg J.  His behaviour during this trial was at times abusive, erratic and irrational.  The judge’s impression was that the appellant’s conduct during the trial was not caused by inability on the part of the appellant to control himself;  that received some support from evidence given on sentence.  A psychiatrist, Dr Fama, who had not seen all the behaviour which the judge had observed, was asked (472) whether at times there was a full lack of control and at other times "it is mere histrionics and some degree of control at least is retained".  His answer was, "Yes, that’s the impression I have, yes".  Again, when discussing the appellant’s behaviour at the trial Dr Fama talked about the stress involved as leading to increasing histrionics and, in response to the judge’s account of one particular incident, answered:  "One might interpret it as partly contrived, but I would say partly a genuine impairment of control".

In substance, the issues at the trial were two, whether the alleged victim was stabbed by the appellant and with what intent that was done.  It was suggested during the hearing in this Court that only the second issue arose, but that does not appear to me to be necessarily so;  the Crown case, that it was the appellant who stabbed the victim, was not absolutely free from gaps, a condition likely to worsen because the victim and one eyewitness were at material times suffering from AIDS.  The eyewitness died between the first attempt at trial, in 1995, and the 1996 trial; the victim was quite ill from AIDS at the time of the second trial and the appellant expressed the hope that he would die of it;  whether that has occurred has not been the subject of evidence.

Claimed dissatisfaction on the part of persons represented by Legal Aid appears to be a phenomenon which is on the increase;  whether this reflects a deterioration in the quality of such representation, or merely the spread of a notion that claims of that sort have some prospect of success before this Court, it is impossible to say. Certainly this appellant has asserted such dissatisfaction with the lawyers he had in 1995, those who attempted to represent him this year, and some others;  but, for myself, I am by no means willing to proceed on the assumption that the case was not properly prepared, or that his lawyers were remiss in carrying out their professional duties in the ways asserted, during the trial, by the appellant.

Dr Fama

The principal point of the case, apart from the question of sentence, now appears to be whether the judge should have taken it upon himself to investigate the question of whether Dr Fama should have been called. Circumstances might be conceived in which, an accused having dismissed his lawyers, the judge might have a discretion, or even perhaps an obligation, so far to step into the role of counsel for the defence as to cause inquiries to be made as to the availability and suitability of defence witnesses and perhaps even to interview them in court. But I am far from thinking that this was such a case.

The psychiatric evidence from  Drs. Fama and Mulholland was to the effect that the appellant had an antisocial personality disorder coupled with a tendency to alcoholism. As I read their evidence, the principal likely cause of any outbursts of violence on his part would be ingestion of alcohol (474/45, 484/32, 484/38, 524/47). If Dr Fama was prepared to say anything helpful to the appellant about his intention at the time of the stabbing, one would expect that it would be based upon a finding, or assumption, as to the quantity of alcohol taken. Dr Fama seemed uncritically to accept an assertion that the appellant had, before the time of the stabbing, drunk $100.00 worth of beer. But an examination of the evidence shows that a view that, at the time of the stabbing, the appellant was not showing any great sign of being affected by alcohol was well open;  further, shortly prior to the stabbing he was said to be behaving calmly and without anger (33, 34, 37/22, 115/18, 124/39, 134/25). The picture Dr Fama painted of the appellant, both in his written and in his oral evidence, was of a man who was prone to bad tempered outbursts when provoked;  but it is clear that Dr Fama saw the possibility of violent acts by the appellant as being principally associated with the effect of alcohol.

To what extent the appellant was affected by alcohol at the relevant time was a factual issue, and one as to which Dr Fama would not have been entitled to express an opinion. Further, it would seem inconceivable that Dr Fama could have said that at the relevant time the appellant was incapable of forming an intention, e.g. to kill someone. And if the appellant was capable of forming such an intention, how could Dr Fama’s expertise help him to decide whether or not he had in fact done so?  That was, in my opinion, a question of fact for the jury, to be decided in the light of their view as to precisely what, on the various accounts given, was the appellant’s behaviour at the time of the offence. I find it remarkable that Dr Fama should have advised the Mental Health Tribunal, as he did, that the appellant’s psychiatric disabilities "should preclude his conviction for an offence of specific intent" (emphasis added). This is at odds with the plain fact that the appellant was quite capable, in general, of controlling his actions. A written report from Dr Fama of 12 October 1995 said that at the interview the appellant was rational and fully co‑operative in answering questions, had no depressive symptoms, had general knowledge and alertness within the average range, had average short-term memory, had normal calculating ability and regarded his parents in a kindly way.

It is not at all clear what Dr Fama was likely to say, if asked to expand on his suggestion that a finding against the appellant on the issue of intent was precluded by his personality disorder. If Dr Fama’s opinion had been probed by the Crown in cross‑examination, much information about the appellant, of a damaging character, might have been placed before the jury.

Dr Fama’s reports of 12 October 1995 and 4 July 1996, together with the clinical progress notes and other documents relied on in them, revealed the appellant’s poor self‑control;  the appellant’s feeling that he would inevitably re‑offend when released;  that he was a racist and thought the people in Rwanda should be let to die out;  that if he got out on bail he would "blow away at least three people";  that he was thought to have a "severe anti-social personality disorder"; that "to a certain extent" he preferred to be in prison, that he had used, for years, various narcotic drugs;  that he had engaged in past aggressive behaviour and committed multiple criminal offences including armed robbery; and, more generally, that he seemed rather a dangerous person and according to Dr Fama a "pretty hopeless therapeutic prospect in view of his long established dissocial personality . . . and present lack of interest in putting any effort into attempting change". I can see no reason why the jury should not have been invited by the Crown to consider these factors in attempting to assess the validity of Dr Fama’s conclusions about the nature of the appellant’s problems, nor is it evident to me that knowledge of these matters would have enhanced any inclination the jury had to let the appellant go free.

Experience suggests that persons who commit extremely violent acts against strangers, for no sensible reason, are but seldom found on examination to have normal personalities. Simple commonsense would suggest that they commonly have defective personalities. In Hawkins (1994) 179 C.L.R. 500, it was held that under Tasmanian law evidence of mental disease can be adduced in determining whether an act is intentional, but I would be reluctant to extend that doctrine to a point beyond that at which the High Court appears to have stopped - i.e. to a point at which cases of this sort will be fought out on contests of expert opinion, no doubt much complicated by questions concerning the validity of the factual assumptions on which the opinions are based. Before Hawkins:

" . . . the dominant line of authority was that expert evidence on the question of whether a person can form an intention to do an act or a specific intention that is a constituent part of a crime was not admissible." (Freckelton and Selby Expert Evidence, para. 8.190.)

Examples are the Victorian decision in Darrington and McGauley [1980] V.R. 353, and Haidley and Alford [1984] V.R. 229. It seems to me probable, although not certain, that the repeated references to "mental disease" in the reasons given in Hawkins were intended to confine the doctrine there espoused to instances in which the accused is mentally ill, in the ordinary sense;  this does not appear to be such a case. I can find nothing in Hawkins to suggest that an opinion would have been admissible that, given his defective personality, the appellant was too drunk to have the intention charged.

Other Grounds

Ground 4 complained of the judge not having discharged the jury when they were told, by the appellant, that he had just got out of gaol. This contention has no substance, but it is desirable, because of its relevance to the case as a whole, to quote part of what the primary judge said about the conduct of the appellant at the trial:

" . . . conduct has been quite calculated and quite intelligently based. He has, with some systematic procedure, endeavoured to bring about a series of events which had potential to cause a mistrial. He has, for example, insisted upon bringing out to the jury out of context the fact that he had been in gaol, notwithstanding that he was aware that that fact would not be brought out by the prosecution and was being suppressed for his own benefit. He has at times, until he saw it would do him no good, refused to attend the courtroom and offered violence to those who sought to bring him to the courtroom. He has dispensed with the services of his legal advisors and perhaps there are other matters as well.

In my view, he has not been subject in any way which has significantly affected the course of the trial to an episode of the sort described by the medical practitioners. On the contrary, it seems to me that he has conducted the trial with some facility." (288)

It was argued, under ground 5, that the judge should have made a better response to the following endearing submission:

"I’ve got no legal rep here?  What fair?  Hey judge, you’re a wanker, why don’t you turn the fucking sound off, you fucking dog. Ever heard that before?  I’ve said it fucking at least half a dozen times." (128)

It is enough to say that I am not prepared to accept that the appellant’s reasons for dissatisfaction with his various legal representatives were sound or that the accusations he has made against them were true. Mr Irwin, for the appellant, advanced no argument on these points, but seemed to say that once the appellant’s then current counsel had been dismissed, as he was during this trial, the judge had an obligation to get him another lawyer. The trial judge was not obliged, in the circumstances of the present case, to do as Mr Irwin has submitted.

Fitness for Trial

Then there is ground 6B, which was that the appellant was obliged to continue with his trial, after an application for a mis-trial was refused, "on the basis that I was unfit to conduct my trial for medical reasons". In argument, Mr Irwin elaborated on this submission by suggesting, in effect, that once medical evidence raised doubt about the appellant’s fitness to be tried, the case should have been adjourned so that the matter could be investigated.

It was said that the trial judge erred in not proceeding as required by s. 613 of the Criminal Code, a clear issue as to the appellant’s fitness to plead having arisen. In further, written, submissions delivered to this Court in May 1997, Mr Irwin argued that despite the provisions of s. 43A(1) of the Mental Health Act 1974, the judge was obliged to have the question of fitness for trial determined by the jury because, first, a determination of unfitness for trial under s. 33(1) of the Mental Health Act (which I will not set out) involves different factual considerations from those which apply under s. 613 of the Code, and secondly, the Tribunal’s decision is final and conclusive only as to fitness for trial at the time the decision is made. If the latter proposition is right, then the finality  and conclusiveness must come to an end immediately the Tribunal’s decision is given.

As to the second point, counsel submitted, correctly, that a person who is fit for trial at one time may become unfit at another. But I have found no evidence suggesting that the appellant’s fitness to be tried deteriorated between the date of the Tribunal’s decision on that question in February 1996, and the trial before Fryberg J in April 1996. No medical evidence was called or tendered to that effect;  nor is the submission made on behalf of the appellant, insofar as it implies that there might have been such a deterioration, helped by the circumstance that the first trial, before Thomas J, was aborted because of the appellant’s behaviour on that occasion. It will be recalled that the reference to the Mental Health Tribunal, in consequence of which the Tribunal found the appellant to be fit for trial, was made in consequence of the difficulties which arose at the first trial.

The relationship between the two regimes dealing with determination of fitness for trial requires analysis. Section 613(1) of the Code says that:

"If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence . . . "

then the jury is to "find whether the person is so capable or no". As the appellant contends, the question for the jury’s determination, as set out in the part of section 613(1) which I have quoted, is not the same as that which has to be resolved by the Tribunal under s. 33(1) of the Mental Health Act, when the Tribunal determines whether a person is "fit for trial". Its task is defined in s. 28A of that Act:

"’fit for trial’ means, in relation to a person, fit to plead at the person’s trial and to instruct counsel and to endure the person’s trial, with serious adverse consequences to the person’s mental condition being unlikely".

The problem is the relationship between these two sets of provisions:  what is the effect, if any, of a finding of fitness or unfitness for trial, made under the Mental Health Act 1974, on the possibility of the District or Supreme Court’s exercise of a similar jurisdiction under s. 613(1) of the Code?

A related problem could arise with respect to s. 645(1) of the Code, which reads as follows:

"If on the trial of any person charged with an indictable offence it is alleged or appears that the person is not of sound mind, the jury are to be required to consider the matter, and if the jury find that the person is not of sound mind, the finding is to be recorded, and thereupon the court is required to order the person to be kept in strict custody, in such place and in such manner as the court thinks fit, until the person is dealt with under the Mental Health Act 1974".

Again, the question whether a person is of "sound mind" for the purposes of s. 645 is not the same as the question whether he is "fit for trial" within the definition in s. 28A of the Mental Health Act. The problem of the relationship between these Code provisions and the related provisions of the Mental Health Act was, it appears, present to the minds of those who prepared the legislation:  see Vol. 295 Q.P.D. at pp. 73 and 350. But the way in which the provisions mesh with each other is not comprehensively defined either in the Act or in the Code. In particular, there is in the statute no express answer to the question which arises in the present case:  while a finding of fitness for trial made by the Tribunal under s. 33 of the Mental Health Act stands, may a finding in a contrary sense be made under s. 613(1) of the Code?  It is in my view only necessary to consider whether such a contrary finding is open where there is nothing to suggest that the accused’s mental condition has altered in any relevant way since the Tribunal’s finding was made;  that is the present case.

It is true that, for the purposes of the operation of the doctrine of issue estoppel, a judicial finding as to a person’s mental state on one date does not necessarily preclude the making of a contrary finding as to another date;  an analogy is the status of being a gipsy, which is an issue in Mills v. Cooper [1967] 2 Q.B. 459. But a finding on the question of fitness for trial is not intended by the provisions of the Mental Health Act to have effect only on the date on which it was made - in this case, on 9 February 1996, by de Jersey J. Such a finding has continuing operation, under s. 34 of the Mental Health Act as a basis upon which the accused may be detained subject to the provisions of that section. It will be noted that s. 34 contemplates that if there is a finding that a person is not fit for trial the Mental Health Tribunal must order that the person so found "be detained as a restricted patient", but a Patient Review Tribunal must periodically review the person’s mental condition under s. 34(2). If the latter Tribunal finds that the person is fit for trial, the proceedings against him may be continued;  if it finds, 12 months after the finding of unfitness for trial, that the person is unlikely to be fit within a reasonable time there may be an order for discontinuance:  s. 34(3)(a), or the question of continuance may be deferred, under s. 34(3)(b). This scheme is plainly based on the assumption that the effect of a finding of unfitness has continuing force, for the purposes of the criminal proceedings, subject to the review function of a Patient Review Tribunal.

I note s. 28 of the Mental Health Act:

"Unless otherwise indicated or provided, this Part shall be read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code".

This provision does not appear to me to assist, for present purposes;  the question remains whether it is "indicated or provided" in the relevant sections of Part 4 of the Mental Health Act that s. 613(1) may be availed of to reverse the effect of a finding of fitness or a finding of unfitness to be tried, made by the Tribunal under the Mental Health Act. It is also to be noted that s. 38 of the Mental Health Act refers in its sidenote to ss. 613 and 645 of the Code, as being applicable;  the text of s. 38, however, appears to pick up the language of the latter but not that of the former section. Again, s. 38 does not appear to answer the question I have posed. That section can be given effect on the basis that the court’s functions under ss. 613 and 645 continue subject to the overriding effect of any subsisting finding of the Tribunal on the question of fitness for trial. A similar observation applies to s. 28E(4) of the Mental Health Act, which in paras. (a)(i) and (ii) contemplates that evidence compulsorily obtained in proceedings before the Tribunal may be admissible in determining questions arising under ss. 613 and 645 of the Code.

A provision which comes closer to suggesting an answer is s. 43A of the Mental Health Act, subs. (1) and (2) of which are as follows:

"(1) Except as is provided by this section, the decisions of the Mental Health Tribunal under this Part shall be final and conclusive and shall not be questioned in any proceeding whatever.

2. A finding by the Mental Health Tribunal -

1.  that a person was not suffering from unsoundness of mind at the time of commission of an alleged offence;  or

2.  that a person was not suffering from diminished responsibility at the time of commission of an alleged offence;

shall not preclude that person from raising the person’s mental  condition at the material time as an issue upon the person’s trial and if the person does so raise that issue those findings shall not be admissible in evidence upon the person’s trial."

Since the Tribunal has, relevantly, three functions, the two mentioned in s. 43A(2) and in addition the function of finding whether or not the accused is fit for trial (see s. 33(1)), the omission of any reference to the third function is significant. The implication is that a finding of fitness for trial, unlike the findings mentioned in paras. (a) and (b) of s. 43A(2), has a preclusive effect. This implication gains strength from the emphatic language of s. 43A(1), which does not merely prevent an overturning of findings of the Tribunal other than in the way contemplated by s. 43A (that is, by appeal to the Court of Appeal), but makes the Tribunal’s decisions unable to be "questioned" in any other way. The present is not a case in which an attempt is being made by the Crown to exclude the jurisdiction of the Supreme Court;  the issue is whether a decision to a certain effect by a judge of the Supreme Court, subject to an appeal to the Court of Appeal, is "questioned" by a decision of the District Court or the Supreme Court in a substantially contrary sense, exercising jurisdiction under the Code.

It is of course only necessary to decide that point so far as it arises in the instant case, where the ground on which, it is argued, the Court should have acted under s. 613 of the Code is the same as that dealt with by the Tribunal, namely that the mental condition of the accused rendered him unfit for trial. My conclusion is that in such a case as this, there being no evidence of change in the appellant’s mental condition since the Tribunal’s finding, a court would if it empanelled a jury for the purposes of considering the question mentioned in s. 613(1) of the Code be entering upon a questioning of the Tribunal’s decision;  that is impermissible.

Conclusions on the Appeal Against Conviction

The two principal grounds, in my opinion, are whether the judge should have looked into the question of calling Dr Fama and whether his Honour was obliged to act as contemplated by s. 613 of the Code. On the former point, it is my conclusion that such an opinion as Dr Fama seemed prepared to give on the question of intention would not have been admissible and that had he been called, his reports and the material referred to in them showed that a decision not to call Dr Fama was quite a rational one, from the appellant’s point of view. As to the second point, I have concluded for the reasons set out above that the subsisting finding, in February 1996, precluded the Court from questioning the Mental Health Tribunal’s conclusion as to fitness for trial by empanelling a jury under s. 613(1) of the Code. That makes it unnecessary to consider another point which was briefly discussed at the hearing, namely whether s. 613(1) applies other than at the time indicated in the opening words of the subsection.

I would dismiss the appeal against conviction.

Sentence

The judge imposed an indefinite sentence on the appellant. A question arose below as to the interpretation of the relevant provisions and that was argued and decided. I do not propose to set the provisions out here;  they are contained in Part 10 of the Penalties and Sentences Act 1992. The critical point for present purposes is that the Court is given a discretion to impose an indefinite sentence on an offender convicted of a "violent offence" if "the offender is a serious danger to the community". The judge held, correctly, that the offence of which the appellant had been committed was a "violent offence" within the meaning of the relevant section. His Honour recorded that it was submitted on behalf of the appellant that the question of danger to the community should be tested by asking whether he would be a danger when released. Following Victorian authority, and having regard to considerations which the judge mentioned, his Honour reached the conclusion that the correct approach was to "have regard to the present position and not to try to guess what would be the position at a time many years from now". His Honour held that the statutory conditions were satisfied, then made some remarks relevant to the seriousness of the offence and imposed an indefinite sentence.

It is in my view a matter of concern that the primary judge did not, having determined that the statutory pre-conditions were satisfied, expressly direct attention to the question whether, that being so, an exercise of discretion against the appellant was appropriate. There must be two stages in the process: first, determining whether the circumstances proved are such as to give the Court power to impose an indefinite sentence and, secondly, considering whether it should in all the circumstances do so. It may well be that the judge’s discussion of the circumstances of the offence was intended to deal with the second point, but that is by no means clear.

To return to the legal point his Honour discussed, reliance was placed on the decision of the Victorian Court of Appeal in Carr [1996] 1 V.R. 385 dealing with a provision whose form does not appear to be distinguishable, in relevant respects, from the counterpart in Part 10 of the Penalties and Sentences Act 1992. The Victorian Court of Appeal held that the primary question the sentencing judge had to determine was "whether the prisoner was at the time of sentencing a serious danger to the community". The Court referred to the difficulty of predicting future dangerousness.

It is my opinion that the primary question is dangerousness at the time of sentencing;  but it seems to me evident that dangerousness at later points in time is made relevant by s. 163(4)(d). Under that paragraph the Court must have regard, in determining whether the offender is a serious danger to the community, to -

" . . . the risk of serious physical harm to members of the community if an indefinite sentence were not imposed . . . "  

The hypothesis that there is no indefinite sentence does not direct the Court’s consideration to the possibility that no custodial sentence at all is imposed;  since a very serious offence must be in issue, it appears that, as in the present case, if there is no indefinite sentence there will be a sentence of determinate length - the sentence referred to in s. 163(2). Therefore, in deciding whether the offender is a serious danger to the community the court must have regard to the risk of serious physical harm to members of the community if a determinate sentence of the appropriate length were imposed, instead of an indefinite sentence.

If such a sentence were imposed, the offender might be released on parole at the half-way point or later, or might serve the full term. Of course, there are other possibilities, such as a release to work. It is my opinion that s. 163(4)(d) compels the conclusion that in determining whether the offender "is" a serious danger the Court has to consider among other matters what danger would be presented to the community if there were, rather than an indefinite sentence, a determinate one;  this is a difficult task, because the Court cannot know whether the offender will be released before the end of the determinate sentence hypothesised, and if so, when.

If the offender is regarded as a serious danger to the community at the time when he becomes eligible for parole under a determinate sentence he would not, other than in error, then be released on parole. But the possibility of an offender who is still regarded as a serious danger earning remissions, so as to obtain release earlier than the end of the determinate sentence, cannot be ignored.

In my view, the result of para. (d) (with its ancillary provision, para. (e)) of s. 163(4) is that the Court must consider the danger at the precise time of sentencing but also, and at least as importantly, look to the future;  if it does not, the Court cannot carry out the mandatory requirement of para. (d) and that of para. (e). What the Court has to do, then, is to look at the present danger and also consider the extent of the risk of serious physical harm to people, if there is a determinate sentence instead of an indeterminate one.

In the present case the judge fixed the nominal sentence at 18 years, so that if the appellant obtained no earlier release he would under such a sentence leave prison in the year 2014, at the age of 45. One does not find in the reasons of the sentencing judge any explicit consideration of the matter - to my mind, an important matter - which para. (d) of s. 163(4) requires to be considered.

It is my respectful opinion, then, that the sentencing process miscarried, for the reason just mentioned and for the additional reason discussed above, that the judge does not appear to have given explicit consideration to the question whether if the statutory conditions were satisfied, the discretion given by s. 163(1) should or should not be exercised against the appellant.

It is necessary for this Court itself to consider what the appropriate sentence might be. There is a quantity of material, apart from that having to do with the circumstances of the offence, relevant to the issue. It is my opinion that the summary of that evidence contained in the respondent’s written outline is reasonably accurate. I do not propose to set it out in full, but will epitomise it, with some comments.

The stabbing occurred at a "gay bar". The appellant engaged in conversation with the complainant and companions of the complainant. The complainant bought a round of drinks. After punching jocularly at the chest of one of those present, the appellant suddenly attacked the complainant with a knife, slashing his arm and stabbing him in the stomach and causing serious injury. The complainant fled but was pursued by the appellant, who called out to him to come back.

Having left the bar, the appellant later returned, to retrieve the sheath of his knife. He was escorted from the hotel by people who presumably did not know what he had done;  it appears that the stabbing happened so quickly that people in the vicinity were unaware of it.  As I have mentioned, when interviewed by the police the appellant claimed not to remember the incident. It appears that this has been accepted, without question, by Dr Fama;  it is impossible to prove whether or not the appellant remembered having done what he did, but I note that according to the account of events in the record, the appellant was able to converse with others in a friendly way shortly before the stabbing, and I also note that a claimed lack of memory seems not uncommon on such occasions as these.

The psychiatric evidence showed, as I have mentioned, an abnormal personality and some brain damage. There was also a history of considerable consumption of alcohol. There was no dispute between the psychiatrists that at the time of sentence the appellant was dangerous. Dr Fama was more optimistic than Dr Mulholland about the prospect of improvement, Dr Fama expressing the view that in a period from 6 to 13 years the appellant might be no longer a serious danger. At a later point in his evidence, Dr Fama somewhat strengthened this opinion. He was asked to consider that, if there were no indefinite sentence, the appellant would probably not be out of prison for at least 6 years and "probably much more than that";  Dr Fama’s response to this was that:

"I believe the risk would be greatly diminished and I probably assess it at that time as only a slight risk. That is provided, of course, that he has made satisfactory progress in the prison."

It is argued for the appellant that Dr Fama’s opinion should be preferred to the more pessimistic view taken by Dr Mulholland, who said, as his "considered view", that the appellant "would eventually engage in dangerous behaviour towards the community".

Dr Mulholland thought that the appellant needed to be "placed in a benign institution more or less indefinitely" . Referring to that opinion, Dr Fama said in his report that the appellant -

" . . . is at present in as benign an institution as can suitably be arranged. Whether that becomes an indefinite detention will involve the difficult problem of weighing this unfortunate man’s legal rights and perceived needs against the interests of the general community."  

The community might perhaps prefer the weighing to which Dr Fama refers to be conducted with heavy emphasis upon protection of the community against danger, rather than on the interests of the appellant. I can, however, see no adequate basis on which this Court could reject the appellant’s submission that the sentencing process should be done on the basis of Dr Fama’s opinion rather than that of Dr Mulholland. The latter may well turn out to be right. But having regard to the heavy onus placed on the Crown by the statute, there is no real justification for rejecting Dr Fama’s view of the matter;  his Honour did not do so - at least, not explicitly. On that basis, it appears to me that the Court should set aside the sentence imposed below and in lieu impose a determinate sentence. The nominal sentence mentioned by the primary judge is submitted by the appellant to be excessive and I agree with that view.

Addendum

Since writing the above I have had the advantage of seeing a substituted draft prepared by the majority. I adhere to the view that there were dangers for the appellant in the medical opinions, so far as his chances of acquittal were concerned. I cannot agree that the judge acted unfairly in failing to take steps to get before the jury one, some or all of the medical opinions to which reference is made in the majority’s reasons.

I should add that I quite agree with the majority view that it is not the case that, once an accused is found fit for trial by the Mental Health Tribunal, he must be tried on that basis irrespective of the reality of the position. But I cannot agree with what I understand to be the majority’s view that the legislative intention in enacting that, subject to the statutory exceptions, a Tribunal finding of fitness for trial is to be "final, conclusive and shall not be questioned in any proceeding whatever" is to confine its conclusiveness to the instant at which it is pronounced;  to put this another way, I cannot accept that the words I have quoted are mere surplusage.  To reiterate, my view is that an accused may at his trial challenge a Tribunal’s finding of fitness, made earlier, on the basis that there has been a degeneration from fitness to unfitness since the finding was made;  there was no evidence to suggest that here.

Conclusion

I would dismiss the appeal against conviction, grant the application for leave to appeal against sentence, set aside the sentence imposed below and in lieu impose a sentence of 12 years imprisonment. I would include in the Court’s orders the matters referred to in s. 161(3) of the Penalties and Sentences Act 1992.

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND LEE J.

Judgment delivered 12 August 1997

The appellant has appealed against his conviction of attempted murder on 24 April 1996, and has applied for leave to appeal against the indefinite sentence which was imposed on him on 1 August 1996.

On Tuesday, 16 April 1996, the appellant was arraigned on two counts; that, on or about 13 May 1994 he attempted unlawfully to kill Mark Andrew Woodall, or, in the alternative, he caused grievous bodily harm to Woodall with intent to do grievous bodily harm. The appellant pleaded not guilty to each charge, accompanied by expressions of dissatisfaction with the situation in which he found himself and his legal representation, stated in vulgar and abusive terms. It is unnecessary to make further reference to the latter charge, since the appellant was convicted of the more serious offence of attempted murder.

When the appellant’s trial had come on for hearing almost a year earlier, on 26 April 1995, it had been adjourned because the appellant was not fit to plead. Briefly stated, on that occasion the appellant, his parents and his then (different) legal representatives were present in the courtroom prior to the commencement of the hearing and the appellant was swearing, yelling abuse and making threats. He was removed to a cell outside the court room, where his tirade continued and, according to his then solicitor, he threatened to kill the solicitor and the trial judge. Although dismissed, his legal representatives remained and participated in the ensuing hearing on his behalf.

The judge who presided on that occasion said that he had been informed of the “problem in relation to Mr Wilson’s condition to stand trial today”, and adjourned the trial to the following day to obtain a report from the Government Medical Officer, who considered that the appellant was “suffering from a episode of manic depression and ... not fit to plead”. A recent statement by the doctor - which has been put before us without objection - is as follows:

“On my arrival at 11.23 am the Bailiff told me the prisoner who had been appearing in Court was using vile language and had physically violent. I immediately interviewed WILSON who stated that he came to the Court that day from the Arthur Gorrie Remand and Reception Centre, where he was being treated for depression with Prozac, one twice a day. He said that he had a history of depression for some years and spent 2 weeks in the Rosemount Psychiatric Hospital in 1994, and had been followed up there every 2-3 weeks since. He said he saw a Psychiatrist, Dr Roper, the previous day and told him he was ready to go off his block again.

He said that he was only told at 5.45am that day that he would be appearing in Court. He stated that he was not happy with his solicitor and wanted to kill him, and that he would go off the handle if sent back to Court. He complained that he had been in prison a year and had been told nothing, and had not been consulted by his counsel re pleading, and was walking in blind behind his statements.”

After the appellant had again been medically examined on the afternoon of 26 April 1995 at the prison where he was being held, the trial did not resume. Instead, the appellant’s medical condition was referred to the Mental Health Tribunal, which on 9 February 1996 found that the appellant was fit for trial.^[1]

It was not disputed on the present appeal that the prosecution established beyond doubt that, on the date of the alleged offence, the appellant stabbed Woodall in the stomach. According to the medical evidence, not a lot of force was required to cause Woodall’s injuries. Woodall initially felt no pain, and when he was taken to the emergency department of the Royal Brisbane Hospital, the doctor who examined and operated on him described him as “awake and alert” and “stable”. Woodall had two lacerations, “one across his abdomen and the other involved the left arm”. The doctor said that the wound to the abdominal cavity was about 5 cm in length, “actually extended into the peritoneal cavity or the gut cavity itself”, and that the bowel was protruding from the abdominal cavity. The bowel was perforated in two places causing four holes, and there was “brisk bleeding from the misenteric which is the arteries that run to the bowel were actually affected. At that stage to control both because they were leaking gut fluid into the peritoneal cavity and to control the bleeding, we had to resect or take out a section of the bowel”. Elsewhere, the blood was described as “spurting”. By way of elaboration, the doctor said that Woodall’s wound ran horizontally from “just to the right of his navel ... extending to the level of the navel” and was “in the lower abdominal region and ... penetrated through the actual skin and the fatty layers and the muscle peritoneum and actually entered the bowel itself”. Further, “[i]n that region there are three muscle layers”. In speaking of the resultant leakage, the doctor said that it could lead to infection, which would cause spasm and later adhesions of the bowel, and major shock, and would be life threatening.

The prosecution case concerning the stabbing can be briefly summarised.

The bar at which the appellant met Woodall had recently been refurbished as a bar for homosexuals, although it seems that the appellant might not have been aware of that fact. He told police he went there to meet a mate. Earlier in the night, at about 9.00 p.m., he was seen in another bar, downstairs in the same hotel, in an agitated condition, shouting out about “poofters” and statements such as “This is my bar and you bunch of fucking poofters can get out”. Brown, a security doorman said the appellant arrived at about 10.00 p.m. Another security officer told the appellant on entry to the bar that it was a “gay bar” because he did not look like a homosexual. This was the practice because the bar had recently been opened as a bar for homosexuals. Brown saw no sign of aggression at that time, but formed the view, from the appellant’s gait and speech, that he was affected by alcohol.^[2]  Woodall and Keefe, an associate of Woodall, who gave evidence of a conversation with the appellant, also said that initially he was not aggressive. Woodall said that he inquired about the appellant’s sexuality - if he was gay, and was told “bisexual” and that "he liked it both ways". He said the appellant asked him for intercourse; when given, this evidence caused the appellant to become agitated. There was additional evidence from Woodall and Keefe that Woodall refused the appellant’s request for intercourse, after which the appellant was slapping and touching Keefe. Woodall warned Keefe not to go with the appellant because “he is bad news”. The appellant was only 2 feet away at the time. He became upset and abusive, there was pushing and shoving, and the appellant stabbed Woodall, who ran from the bar with the appellant pursuing him. Woodall said that at the time the appellant had a strange look on his face, in the nature of a smirk. He was terrified by that look. He also said that he was cut on his arm. In the process of pursuing Woodall, the appellant collided with a wall or a stairway. Brown had observed him while he was chasing Woodall outside; he had a pocket knife in his hand, was flushed and upset and breathing heavily, and was swearing and calling out “come back you bloody bastard” or “gutless bastard”. The appellant returned inside. After a conversation with security staff in which he initially denied but later admitted that he had a knife, the appellant was escorted from the premises.

The appellant prepared his own grounds of appeal, but Mr Irwin of counsel represented him in this Court. Additional matters were raised in argument, and the Court sought and obtained further submissions after the hearing. This judgment is concerned only with matters which merit discussion. Those matters are difficult and troubling, even in retrospect. The trial judge had an unenviable task.

Intention to kill 

The appellant stabbed Woodall, and his guilt or innocence of attempted murder depended on intention at that time. It was necessary for the prosecution evidence to satisfy the jury beyond reasonable 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.

It is desirable to say something more of Cutter, in which judgment was handed down by the High Court earlier this year.

While drunk and resisting arrest, Cutter produced a knife and stabbed a constable in the throat. When later interviewed, he stated that he had been “just angry”, that he “wanted to scare them to let them know to leave me alone”, and that he had stabbed the policeman who happened to be closest. By majority, Brennan C.J., Dawson and Gummow JJ., McHugh and Kirby JJ. dissenting, the High Court held that Cutter had been wrongly convicted of attempted murder.

At 641, Brennan C.J. and Dawson J. said:

“The finding as to the consumption of alcoholic liquor is relevant to the existence of the specific intent that must be found before the offence of attempting unlawfully to kill is established.”

Reference was then made to s. 28 of the Criminal Code (W.A.) which is relevantly identical with s. 28 of the Code in this State. The judgment then went on:

“Intoxication is relevant to the question whether an accused had the relevant specific intent in fact whether or not it establishes that he had lost the capacity to form an intent [R. v. Crump [1966] Qd.R. 340]. The common law is no different [See Viro v. The Queen (1978) 141 C.L.R. 88 at 112].”

After referring to the need for the prosecution to establish that an intention to kill was the only rational inference in the circumstances, their Honours continued at 642:

“... although the deliberation of the stabbing motion with the knife towards the upper portion of [the constable’s] body is a fact which can and does support an inference of an intent to kill, and although the likelihood of inflicting a fatal wound or the probability of death resulting from such a deliberate stabbing might be obvious to a reasonable person taking an objective view of what happened, the surrounding circumstances must be considered before excluding the possibility that [Cutter] inflicted the wound without an actual intent to kill [the constable]. A result of the stabbing that would be ‘obvious to any person’ or ‘common knowledge’ or ‘obviously probable’ might not have been appreciated by the appellant, much less desired, having regard to his state of mind at the time.

[Cutter’s] anger, his partial intoxication and the highly tense circumstances of his arrest certainly bear testimony to a state of mind that was passionately antipathetic to the police. His outrage at being forcibly manhandled into the van followed by the attempt to extract him from the van suggest an intention to resist the force being applied to him with whatever means he had at his disposal and to surprise his captors by the production and wielding of the knife. But the emotion of the occasion, heightened by the consumption of alcohol, the physical force that was being used both by [Cutter] and the police in and before the attempt to remove the appellant from the van and the manner in which he struck at [the] Constable ... as soon as he leant in the door of the van raise the possibility that the appellant, in resisting his removal from the van, stabbed [the] Constable ... blindly in the portion of his body closest to him intending to resist the police and to wound [the] Constable ... but not necessarily intending to kill him. It is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force.

The circumstances in the present case cannot ... exclude the possibility that [the constable] was stabbed in anger and with aggression but not with an intent to take his life. ...”

In a short judgment, Gummow J. stated at 642-643 that:

“... the circumstances were such as not to exclude the possibility that the appellant stabbed [the] Constable ... in anger but without an intent to take his life.”

It is no part of the appellant’s case in this Court that he was insane within the meaning of s. 27 of the Criminal Code at the time when he stabbed Woodall, i.e., he was not “in such a state of mental disease or natural mental infirmity as to deprive [him] of capacity to understand what [he was] doing, or of capacity to control [his] actions, or of capacity to know that [he]ought not to do the act ...,^[7] and his mind was not materially “affected by delusions”.^[8]  Further, diminished 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.

Even intentional intoxication, whether complete or partial, may be regarded for the purpose of ascertaining whether an intention which is an element of an offence existed.^[12]  The relevance of intoxication to intention is that intoxication affects, or at least can affect, the state of a person’s mind.^[13]  Broadly speaking, if a person’s mind is disordered by some other cause, that should similarly be potentially material to his or her intention.

The prosecution submission to this Court appeared to be that medical evidence concerning the appellant’s psychiatric history and mental condition prior to, at the time of, or after the stabbing was inadmissible in relation to the appellant’s intent when he stabbed Woodall unless the evidence was of an “abnormality amounting to a mental disease”. It is not clear whether “mental disease” was confined to mental disease which had an effect which would satisfy s. 27 of the 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]

Neither logic nor principle supports a different approach to the admission of evidence for the determination of intention from that adopted for the determination of the states of mind predicated in ss. 27 and 304A of the Code.^[27]

In Hawkins, a case decided on the Tasmanian Criminal Code, the appeal to the High Court turned on “the admissibility of ... medical evidence on the issue of the existence of the specific intent necessary to proof of murder”.^[28]  The 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]

“An application of s. 13(1) or of s. 16(1) equally precludes criminal responsibility for an act done by an alleged offender but the onus of proving a willed act is on the prosecution while the onus of proving insanity is on the defence ... . In these circumstances, it is not surprising that ... counsel for the defence have sought to use evidence of mental abnormality to raise a reasonable doubt about the voluntariness of the accused’s act independently of and distinct from a defence of insanity. Apart from the reversal of the ultimate onus of proving insanity effected by s. 381 of the Code, ss. 13 and 16 operate by absolving the doer of an incriminated act from criminal responsibility for that act. ... Where there are two available avenues of complete excuse for an incriminated act, one placing the onus of proof on the prosecution, the other placing the onus on the defence, it is not surprising that great difficulties in theory and practice have arisen ... . One basis for distinguishing between the two avenues of excuse is to confine the relevance of mental disease to the defence of insanity, denying its relevance to the issue of voluntariness. ... The solution requires ... the determination by the court of the character of any mental abnormality the existence of which is proved or raised by the evidence. Where evidence of a mental abnormality is relied on by the defence and the issue is criminal responsibility for the incriminated act, it is necessary to characterise the abnormality in order to determine whether the connexion, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of voluntariness or as a question of insanity. ...”

After reference to R. v. Falconer,^[32] the Court continued:^[33]

“It follows that, if the only evidence tendered to raise the question of the voluntariness of the incriminated act is evidence of a mental abnormality amounting to a ‘mental disease’ under s. 16 ..., the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of  mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by pars (a) and (b) of s. 16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.”

Throughout the last paragraph, “mental disease” is used as that term is understood in s. 16, as is confirmed by the following discussion of Williams v. R.^[34]

What has been said to this point provides an essential context for an understanding of the point on which the appeal in Hawkins turned. The conclusion of the Tasmanian Court of Criminal Appeal which the High Court rejected in allowing the appeal appears in the following passage:^[35]

“In the present case, the issue upon which the defence sought to tender evidence of the appellant’s mental abnormality was neither voluntariness nor insanity. The defence accepted criminal responsibility for the act of discharging the gun but sought to contest the intent with which the gun was discharged. A majority of the Court of Criminal Appeal ... held that evidence of mental abnormality ... was irrelevant to the issue of intent.”

Later,^[36] the Court said:

“... the approach of the majority overlooks the distinction between the operation of ss. 13 and 16 in precluding criminal responsibility for doing an act and the prescription (as an element of an offence) of the specific intent with which an act is done. Although the evidentiary presumption of  sound mind is of general application, there is a reason why rebuttal of that presumption by evidence of mental disease, which is necessarily admissible on the issue of insanity, cannot be taken into account in determining whether an act is voluntary and intentional. Mental disease, by itself, is no excuse for the doing of an incriminated act but s.16 provides an excuse ... when, and only when, the consequence and measure of the mental disease are as prescribed by pars (a) and (b) of s.16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind ... . If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by pars (a) and (b) of s.16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. In such a case, the actor is liable in any event to conviction for an offence constituted by the doing of the act but is liable to conviction for a more serious offence only if the prosecution establishes the intent which is the additional element in the more serious offence. The presumption of sound mind is not the equivalent of a presumption that a person intends the natural, or natural and probable, consequences of his act ... . What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty ... . The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it.”

The Court discussed a number of authorities at pp. 513 -514 and again at pp. 515-517. In the course of doing so, it said at p. 515:

“To say that evidence of mental disease is admissible on the issue of intent is one thing; the strength of the evidence is another. If the evidence of mental disease does not establish that the accused was incapable of knowing that the act was ‘one which he ought not to do’ (s.16(1)(a)(ii)) or, under the common law, was incapable of knowing the nature and quality of his act, that evidence may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances. But there is no necessary inconsistency between mental abnormality and the existence of a specific intent.”

The reference to “mental abnormality” in that paragraph makes plain that the Court was referring to more than “mental disease” which satisfied sub-ss. 16(1)(a) and (b) of the Tasmanian Criminal Code.

That can also be seen from the approval on p. 514 of the view of Burt C.J. in Schultz v. R.^[37] and of the majority decision of the Court of Appeals for the District of Columbia in United States v. Brawner.^[38]  In the Western Australian case, the Chief Justice said:

“... Once it be acknowledged ... that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, ... , all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have a bearing upon the operation of his mind are relevant to that finding."

In the American case, the majority of the court said:

“Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from  a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility."

Approval was also 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]

“In order to determine whether the appellant had the specific intent to commit murder the crucial problem for the jury is to determine what was in the mind of the accused. In order to determine what was in his mind, evidence of his whole personality and background including evidence of any mental illness or disorder that he may have suffered from at the material time, is relevant and must of necessity, be examined so that the jury can consider such evidence together with all the other evidence in determining whether the Crown has established beyond a reasonable doubt that the accused did have the specific intent required, this apart altogether from the issue or defence of insanity."  (emphasis added)

So far as presently material, the Court concluded:^[41]

“In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s.13 or to s.16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s.16.

It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was ‘voluntary and intentional’ within the meaning of those terms in s.13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent ‑ relevantly, the intents prescribed by pars (a) and (b) of s.157(1) of the Code. The Courts below were in error in holding that the evidence of Dr Sale and Professor Jones was inadmissible on the issues of those intents.”

The appellant’s mental condition at the time when he stabbed Woodall was material to the issue of whether or not he intended to kill Woodall. Medical evidence relevant to the determination of his mental condition at that time was admissible, and it was for the jury to assess that evidence, together with other evidence relevant to his intention, for example his actions and statements, and to decide whether the prosecution had established that the only rational inference was that the appellant intended to kill Woodall.

Mental condition at trial

The appellant’s mental condition during the 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”.

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.

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]

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

1. 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).

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.

“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.

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.

1. 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]

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]

2. 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]

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]

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.

The second basis is that the accused has been unable to conduct the balance of the trial himself. That appears to be based primarily upon the proposition that the accused is not fit to represent himself, the unfitness being due to a long-standing personality disorder which has been allegedly compounded by a blow to the head from an axe handle somewhat over two years ago. The accused in support of that referred to a report of Doctor Mulholland given to the Mental Health Tribunal upon a hearing by that tribunal at some time to determine whether the accused was fit to stand trial. That report has not to date been put in evidence but in view ----

...

HIS HONOUR: ----- of a statement by the accused upon this application, I suggest to the Crown Prosecutor that he perhaps might tender the report from a bundle of documents which I understand he has; so that it will be available to any appeal Court should this matter go further. Mr Clark.

MR CLARK:   Yes, Your Honour, I am prepared to do that. Might that be done at a later stage given the reasons for that?

HIS HONOUR: Very well. That report and another one by Doctor Fama indicates that the accused suffers a personality disorder by reason of which he is on occasions subject to outbursts of rage which he is unable to control. As I understand the reports, those episodic outbursts are the only disabilities which the accused suffers. The reports seem to suggest that the condition is one of long standing, not one affected, to a great degree at least, by the blow to the head. The accused himself appears to describe the condition as ‘going off’ and he has during the trial on a number of occasions said, ‘I will go off.’, apparently predicting an imminent outburst. I fully accept the medical evidence that the accused suffers the condition described by the doctors.  The fact is, however, that Doctor Fama certainly has not seen such an episode and it is not clear to me whether Doctor Mulholland has himself seen one. In evidence before me earlier in the trial on the voir dire, Doctor Fama ----- (emphasis added)

MR CLARK:   Page 85 might assist Your Honour.

HIS HONOUR: Thank you.

...

HIS HONOUR: Doctor Fama was asked about how frequent these outbursts are likely to be -----

...

HIS HONOUR:  ----- and the answer which he gave was, I quote, 'I think the Court can judge that better than I because they have seen this man in the course of his trial.'

I note the accused of his own request is being removed apparently to go to the toilet. The existence of a disposition to have such episodic outbursts is, however, not proof that the accused has to date been disadvantaged in the conduct of his trial by any such outbursts. It is, in the end, a matter for judgment.

In the first couple of days of this trial I was prepared to assume that the accused was motivated by the condition to which reference has been made from time to time. Observing him over the course of the trial has led me to the very clear conclusion that except perhaps for his outburst during the course of these reasons this morning his 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. It is true that not being a lawyer his questioning technique has been deplorable and he has, as I have already observed, made submissions to the jury and argumentative points during the course of the asking of his questions. That has not, in my view, in any significant way prejudiced him. In itself, it has simply underlined the point of the questions which he has been asking and has to that extent benefited him at the cost of some waste of time of the Court. He has probably prejudiced himself in the conduct of the trial by his persistent use of obscene language, but that is not something which is attributed to any psychiatric condition as far as I am aware and would appear to be something that he ought to be able to control.

He has also in the course of the trial probably prejudiced himself by demanding in front of the jury that he be allowed to plead guilty. The jury were asked to leave as soon as he made that demand and were informed upon their return of my refusal to accept that plea. In my summing-up I will direct them appropriately in relation to that piece of conduct. It does not seem to me that in those circumstances that conduct by him is sufficient to warrant the declaration of a mistrial.

It seems to me that at this stage of the trial he has not made out the second basis of his application. That is, that he has been unable himself, for medical or any other reason for that matter, to appropriately conduct the trial. I therefore refuse the application. Is the prisoner in a position to be brought back to the Court?

...

HIS HONOUR: The application is refused.

...

HIS HONOUR: Bring back the jury.”

When the jury returned, the appellant abused them and again said that he had tried to plead guilty.

A witness, Bonney, who was called by the prosecution and who had declined to give a statement previously, was abused by the appellant when he entered the court room. The appellant declined to cross-examine Bonney, on the basis that the appellant did not recall anything about the night in question.

Keefe was recalled at the appellant’s request for further cross-examination, which consisted of a long rambling statement by the appellant.^[72]

The prosecution case was then closed. The appellant declined to give evidence or to call Dr Fama although he was present in the court room. The appellant also declined to make any submissions to the jury. The material portion of the transcript is as follows:

“MR CLARK: That is the case for the prosecution, Your Honour.

HIS HONOUR:  I take it, you are not intending to tender that document?

MR CLARK:  No.

HIS HONOUR:  Very well. Mr Clark, we seemed to have lost the formula. What section of the Code are we looking at?

MR CLARK:  It's up around 590s, I think.

HIS HONOUR:  Thank you.

MR CLARK:  Or the early 600s. I haven’t had occasion to look for it.

HIS HONOUR:  618?

MR CLARK:  I was looking in the index then. I will have a look. Yes.

HIS HONOUR:  Very well.

Mr Wilson, the case for the prosecution has now closed. You are entitled, if you wish, to give evidence yourself or to call any witnesses to give evidence on your behalf or to do both of those things. You are not obliged to do any of those things and if you don’t ‑ your right not to give evidence yourself is a right which you are perfectly entitled to exercise without any adverse conclusion being drawn. However, some of the matters which you may wish to put before the jury may only be able to be put if evidence is given. It is entirely a matter for you whether you choose to give evidence or whether you do not. I ask you now: do you intend to adduce any evidence on your own behalf?

ACCUSED:  No.

HIS HONOUR:  You said earlier in the proceedings that you wished to call Doctor Fama as a witness. Do you wish to call Doctor Fama?

ACCUSED:  No.

HIS HONOUR: Doctor Fama is present if you wish him to give evidence on your behalf.

ACCUSED:  No. No, thank you.

HIS HONOUR:  Very well. In those circumstances I will formally excuse Doctor Fama from further attendance.

Yes, Mr Clark.

MR CLARK:  That being the case, I have no further part to play in the proceedings at this stage because he is unrepresented and he hasn’t adduced evidence. I'm not entitled to make an address to the jury.

HIS HONOUR:  At all?

MR CLARK:  At all.

HIS HONOUR:  I see. Very well.

MR CLARK: It is an unfortunate state of affairs.

HIS HONOUR:  Yes, it is. Very well. Mr Wilson, you are entitled now, if you wish, to make any submissions that you want to put to the jury.

ACCUSED:  No, nothing.

HIS HONOUR:  You will remember during the course of the hearing that you on several occasions were told that you would have an opportunity ------

ACCUSED:  I know I was told. I am waiving that right. I don't want to talk to the jury.

HIS HONOUR:  Very well. All that remains, therefore, ladies and gentlemen, is for me to sum up the case to you. ...”

When the trial judge summed up, he told the jury that the appellant could only be convicted on the evidence, and that his behaviour in court was to be disregarded. His Honour also directed the jury that the statements by the appellant that he was guilty could not be used against him because they were qualified by his other statements and were not genuine admissions of guilt. Unfortunately, his Honour overlooked the fact that the jury was not present for some of the appellant’s statements, and that his statements in their absence indicated that his willingness to plead guilty did not relate to the offence of attempted murder but to the alternative count in the indictment, namely, grievous bodily harm with intent.

In directing the jury in relation to the question whether the appellant was capable of forming an intention to kill, the trial judge said:

“I turn now to the second aspect that I said that you had to consider in relation to the offence of attempted murder and that is the question of the specific intent that it is necessary [sic] should have existed if you are to find a verdict of guilty on this charge, and again I would remind you that it is necessary for you to be satisfied beyond reasonable doubt both that the accused did the act of stabbing and that he had the specific intent to kill when he did it. Unless you are satisfied of those matters beyond reasonable doubt, it is your duty to acquit.

Well, did he intend ‑ assuming he did the act, did he at the time he did the act have the intention unlawfully to kill Woodall?  There seems to be no basis upon which you could conclude that he had some belief that he was lawfully entitled to kill him, so really it is a question of was he intending to kill him and that can be subdivided into two issues. First of all, was the accused capable of forming the intent to kill and, second, if he was did he, in fact, form that intent at the  time that he did the stabbing, assuming that you found that he did do the stabbing.

Now, the first matter that is relevant to this question of whether he was capable of forming the necessary intention is the question of intoxication. Your common sense and experience will tell you that if a person is absolutely blotto blind drunk he may be incapable of forming a specific intention to do anything . You have to be satisfied beyond reasonable doubt that that was not the condition of Wilson on this night and the Crown has to satisfy you that he was not in that condition before it can get a verdict of guilty. ...

Our law provides:

‘When an intention to cause a specific result is an element of an offence intoxication whether complete or partial and whether intentional or unintentional may be regarded for the purpose of ascertaining whether such an intention, in fact, existed.’

Now, I tell you and I already have told you as a matter of law the intention to cause a specific result ‑ that is, to kill ‑ is an element of the offence of attempted murder. That is the law. You have to intend to cause the specific result; that is, to kill. So intoxication becomes relevant and intoxication whether complete or partial and whether intentional or unintentional is relevant. That means that it does not matter, it is not essential as a matter of law, that the intoxication be complete and it does not matter whether he intentionally went out and got drunk, but it also means that a specific intention can, as a matter of fact, co‑exist with partial intoxication. In other words, while partial intoxication may be a foundation for a finding that in the circumstances of the case a particular person was unable to form the specific intention to kill, it is not necessarily so. It is a matter of fact for you. If you find he was partially intoxicated, then you have to decide whether the degree of intoxication was such as to preclude the formation of the specific intention to kill.

What is the evidence?  There seems to be no doubt that the accused had taken some drink on the night in question. At least one witness, Machong, described him as moderately affected. There is not a lot of evidence. Indeed, you will struggle to find much at all, I suggest, but it is a matter for you, to say that he was anything more than moderately affected. To some witnesses, indeed, they did not notice any signs or indicia, as the lawyers like to put it.

You have seen all of the witnesses who were asked to describe what his condition was. You have heard evidence from them of how much he had to drink at least during part of the evening when he was with Woodall. We do not know how much he had to drink earlier in the evening. He had come from another hotel, I remind you. You have to weigh the evidence and decide whether you feel that he was capable of forming the intention of killing because that is the intention that he has to form in order to be guilty of this offence.

In the record of interview he at one point says when he is asked how he is he says, ‘I'm half pissed.’  This is hours later in the morning. That statement is not evidence of its truth. There is no evidence before you that he was, in fact, half pissed at that time and you have not the benefit of hearing him depose to that or of anyone else depose to that fact. You have to simply do the best you can on the evidence that is available of what his condition was at the relevant time. If you are satisfied that he was capable of forming the necessary intention ‑ that is, the intention to kill ‑ you will then turn to consider whether he did, in fact, form that intention.

Before I come to that question whether he did, in fact, form the intention to kill, may I say something to you about another aspect not to do with intoxication that might be troubling you about whether or not he is capable of forming an intention to do anything or particularly capable of forming an intention to kill?  He has, during the course of the hearing, made statements to you about wanting to see his doctor and wanting medication. Statements that he makes during the course of the proceedings are not evidence. You could not conclude from them that he has any condition medical or otherwise which would prevent the formation of the relevant intent. He chose this morning not to call any medical evidence and you should not draw any inference from his behaviour in Court two years after the event as to what his condition might have been on the night in question.

Statements that he has made in Court and behaviour in Court do not amount to evidence in relation to the issue of whether on the night in question he was capable of forming the specific intent to kill.    

May I move to the question of whether he did, in fact, form an intent, if you are satisfied that he had the capacity?  There is no direct evidence before you on the question of actual intention. It is a matter of inference. The main foundation for the inference, of course, is the fact which seems to be central to the Crown case that the accused stabbed Woodall in the abdomen and, as I have said, you have got to this point here on the assumption that you are satisfied that he did the stabbing.

...”

On request from the Crown prosecutor, the trial judge corrected in short form the direction he had given with respect to the jury’s use of statements in the appellant’s record of interview; his Honour stated that the jury could make use of any statements in it, including those of a self serving nature, attaching such weight to them as they saw fit.

When the jury retired on Wednesday, 24 April, the trial judge asked whether there was “[a]nything further ... [a]s far as sentence is concerned”. The prosecutor asked that the sentencing be postponed until the morning of Friday, 26 April. One reason given for that request was “... to place before the Court on sentence some of the material from the Mental Health Tribunal reports, particularly those which relate to the potential danger to the community and to place before Your Honour a case of the Queen v. Chivers which deals with the relevance of potential danger to the community in assessing appropriate sentence in serious offences such as this.”  His Honour agreed to delay sentence as requested.

When the jury returned, it delivered a verdict of guilty of attempted murder, and the trial judge remanded the appellant in custody for sentence at 9.30 a.m. on 26 April.

Sentencing

The court resumed at 9.30 a.m. that day, and the allocutus was administered. The appellant replied:

“I can’t figure how I got done for attempted murder but the other day I was quite willing to plead to GBH with intent. The Prosecutor was going to accept that but you wouldn’t.”

The trial judge responded that it might be easier for the appellant to wait to hear what the prosecutor had to say “... and then have your turn after him. ...”

The prosecutor then indicated that he proposed to rely on “... what compendiously is called the Mental Health Tribunal reports”. After some discussion with the prosecutor, the trial judge asked him whether he was making an application under Part 10 of the Penalties and Sentences Act 1992 for an indefinite sentence. The prosecutor said that he was not making such an application but that “... it remains open for the Court on its own initiation to consider it as part of the sentencing process. There is no application.”  His Honour responded:

“The material before me doesn’t go far enough for me to initiate it but you have the material. You are aware of what material exists and the Attorney has a discretion but it has to be done, if it’s going to be, very quickly.”

The prosecutor said:

“Yes. I can indicate now that in the end my submission will be that the penalty and - the offence and the circumstances justify a significant period of custody and that the Crown would be suggesting an appropriate range, in all the circumstances of this case, would be of the order of 16 years’ (sic) to life.”

The sentencing process then proceeded with submissions from the prosecutor. An issue arose, and Mr Woodall was called to give evidence and cross-examined by the appellant. The prosecutor then went on to “... tender compendiously a number of reports and materials placed before the Mental Health Tribunal”. He then identified the  reports in the file which have previously been listed.

The prosecutor next made submissions by reference to the reports in the Mental Health Tribunal file, and returned to the proposition that the appellant continued to represent a significant danger to the community. The following exchange then occurred:

“HIS HONOUR: That’s partly what puzzled me because you had mentioned on Wednesday that you were going to be making submissions about a serious danger to the community. To what extent can I take that into account when there is specific provision made in the legislation to deal with that case, that situation?

MR CLARK: When there is?

HIS HONOUR: The legislation in part 10 contains specific provision to deal with the situation where the offender is a serious danger to the community because of various matters which seem to be the matters that you are referring to or about to refer to. Given that there is specific provision there, to what extent can I allow that factor to aggravate a penalty when you are not proceeding under part 10 particularly in the light of the Veen case?

MR CLARK: Part 10 is simply an option which is given by the legislation to the Court. The fact that the Crown was not specifically relying on that by making an application doesn’t mean that Your Honour must disregard these factors simply because that part of the legislation is not used.

HIS HONOUR: I didn’t say disregard. I said to what extent can I take it into account.

MR CLARK: The Crown can say you can take it into account in the same way as if that piece of legislation had not been enacted.

HIS HONOUR: Is that consistent with what the High Court said in Veen?

MR CLARK: I know nothing in Veen that is contrary to that nor in the cases of Chivers and Day, which I will bring Your Honour’s attention to as well. ...

...

HIS HONOUR: The key issue, from your perspective, is whether he is a danger to the community by reason of the fact that he is gratified by describing violent exploits or whether that gratification is controlled ability by drugs.

MR CLARK: I think the sedation is not so much a reference to the gratification, perhaps, but the sedation of himself generally. I notice that he links it in the same sentence with the craving for alcohol, and the clear message which seems to permeate throughout all these reports is that one of the many problems of this man is that he is an alcoholic. (emphasis added.)

HIS HONOUR: He links it with denying any craving for alcohol.

MR CLARK: Yes.

HIS HONOUR: You cannot show that he is an alcoholic because he denied he had a craving for it.

MR CLARK: I am saying that the clear message throughout the reports, not just in that sentence, is that he had a severe alcoholic problem.

HIS HONOUR: I don’t think that is disputed, even by him.

...

HIS HONOUR: [a passage in Dr Fama’s report] is actually quite an interesting passage, because the chief clinical features are expressed tension and his hostility. I did wonder, when you referred me to the earlier passage, ‘he bristles with anger’, whether that merely meant he just expresses anger, or whether the doctor is genuinely saying that all the time he has uncontrollable anger. My impression of this man is that he makes no real effort, whatever childish emotion he happens to feel at the moment, or doesn’t make a sufficient effort at the moment.

PRISONER: Excuse me, Judge ---

HIS HONOUR: You will get your turn. Remember it for later.

MR CLARK: The reports seems to suggest that he has, on most occasions, a limited control. Dr Mulholland says, a limited control, and on some occasions Dr Mulholland seems to suggest, particularly when drinking alcohol, that he may in fact go completely out of control. He says that in his report.  (emphasis added.)

HIS HONOUR: I was talking about when he was not under the influence of alcohol.

MR CLARK: Yes. He seems to suggest that, ... , ‘he is prone to emotional outburst over which he has some limited control’. Certainly, Your Honour has had the opportunity to observe him during this trial, and it is my submission that it is open for you to find that in fact he seemed to not only know that an outburst was coming on, as he himself admitted, but seemed to be able to stop and start it almost at will, as it appeared.

HIS HONOUR: Yes.

MR CLARK: Those are the specific passages to which I want to refer Your Honour from the reports themselves. Although the pervasive message that comes across throughout the whole reports, the Crown would say, is one of a long-standing aggressiveness by the accused in such a way as to represent a danger to the community and in the opinion expressed by Dr Mulholland particularly, and at least inferred by Dr Fama, that it is likely to continue. That is not all the evidence. The Crown would say you are entitled to take into account his behaviour during the trial.

HIS HONOUR: Where is it expressed by Dr Fama that it is likely to continue?

MR CLARK: I said ‘inferred’ by Dr Fama at least and Dr Mulholland ...

HIS HONOUR: You mean ‘implied’ by Dr Fama?

MR CLARK: Yes.

HIS HONOUR: Where do I get that from Dr Fama?

MR CLARK: It perhaps could be implied from at least two passages. ...

HIS HONOUR: That assumes that he was intoxicated.

MR CLARK: He’s assuming that he was intoxicated at the time of the offence, yes ...

HIS HONOUR: If one were of the view that he was not intoxicated, or at least not sufficiently to prevent the formation of a specific intent which is what the jury must have found, then the sentence becomes different.

MR CLARK: The purpose to which I am putting all that material before Your Honour is to show that he represents a continuing danger to society. Once he were to be released, there is simply no control over an intake of alcohol. There is no control, as has been shown during his parole period --

HIS HONOUR: I understand.

MR CLARK:  -- to prevent him from abstaining from taking drugs or the preventative drugs.

HIS HONOUR: What was the other matter you wanted to refer me to in that report for an inference?

...

MR CLARK: ... ‘He is, from his record, prone to bad tempered, abusive outbursts in Court, but his operational and confrontative attitudes cannot reasonably be interpreted as rendering him unfit for trial’. He goes on to  say that ‘Restraint may be needed and resorted to in the course of any prolonged trial.’  It is really those from which I suggested that there is an implication, if not an express statement, that his violence is not behind him.

That is confirmed by the statement in Dr Mulholland’s report. It is also confirmed in real terms by what has happened during this trial. In particular, I refer to two incidents which happened during the course of the trial. The first was the threat to the life of the witness, Brown, which came in an outburst ... .

HIS HONOUR: I noted that, although I must say I thought that was more an attempt to intimidate Brown than a threat that had much genuine reality to it.

MR CLARK: If that could be said, then perhaps a second incident when he vaulted the prisoner’s dock and advanced on the bench with what would appear to have been a menacing attitude towards Your Honour, that appeared to be taking it a little bit further than simply stating an intention.

HIS HONOUR: I suppose I should say so, that it is recorded, of that incident: I did not, in the instant that that happened, have any sense that while he advanced towards the bench there was a genuine intent to reach the bench and be violent. Indeed, if anything, I had the impression from his body language as I watched, in that very brief instant, that he was really hoping that the prison officers would grab him before he went too far, that he didn't want it to come to having to implement what he was appearing to do. He almost seemed to pause for them to grab him.

MR CLARK: Your Honour must of course act on your own impression.  I must say that my impression from this angle was markedly different.

HIS HONOUR: You were closer than I was.

MR CLARK: Maybe I saw it from a different angle. I saw it as one who was, for the moment, not the intended target of any violence, and I must say I took it differently.

HIS HONOUR: His body language caused me no apprehension. Perhaps that was because I was higher and there were abundant guards around.

MR CLARK: And there were four guards hanging off his arms at the relevant times. Your Honour, I close that particular part of my submission by simply saying that you are entitled to take into account not only the opinions as expressed by the psychiatrists, neurologists and other doctors, but also the behaviour which has been exhibited in the recent past during the course of this trial in determining whether he does represent this continuing danger to the community.

HIS HONOUR: I suppose you could say this: just as the doctors say that the presence of alcohol releases the violence, so also the absence of control mechanisms such as guards may well give the violence a chance to be carried on.

MR CLARK: The absence or presence?

HIS HONOUR: The absence. If he were released into the community, then the absence of people to physically control him in a given situation where he made a threat might impel him to proceed then to carry the threat out.

MR CLARK: That may well be. As I said before, the real danger is that, once released, as he was on parole, there is nothing to stop him from drinking or taking elicit drugs, and there is nothing to stop him from abstaining from taking the medication which has been provided.

HIS HONOUR: I thought the medical evidence suggests that he stopped taking drugs as opposed to alcohol, which he hadn't stopped taking.

MR CLARK: He admitted himself in the record of interview that he decided to take up drinking and abstained, therefore, from taking the Prozac, which was the medication.

HIS HONOUR: I didn't mean just that. I thought the systematic taking of drugs had been stopped.

MR CLARK: Of elicit drugs?

HIS HONOUR: Yes.

MR CLARK: I think there was an indication from him. This is really a statement by him to the psychiatrist, that he had stopped taking amphetamines or cocaine. It was one of the harder drugs.

HIS HONOUR: Amphetamines, LSD and some attempts at heroin.

MR CLARK: LSD, that's right; that was the one he considered had been, at some stage in his life, quite beneficial to him.

...”

In the course of the ensuing discussion, the trial judge returned to Part 10 of the Penalties and Sentences Act. The following exchange then occurred:

“MR CLARK: Part 10 is an option. I must say, candidly, I took up that question with a consulting Crown Prosecutor this morning to get a second opinion. The opinion was that in the circumstances of this case, he thought it more appropriate to proceed as I have done.

HIS HONOUR: The trouble that I feel about is that part 10 is hedged about with a number of protections for an accused person. It could be said that taking this course is simply an expedient for dodging protective mechanisms that are inserted by the Parliament for the benefit of the accused person.

MR CLARK: Whether that can be said or not. Can I say this: given that the matter will be adjourned, for the reasons stated before, I propose to refer the matter to the Director of Public Prosecutions in any case. The legislation provides that an application can be made by the prosecution within seven days and if the intention of the Crown were to change, then I would be seeking to mention this before the time limit is expired.

HIS HONOUR: Certainly. You also would be aware -----

MR CLARK: Of the need of provide certain evidence.

HIS HONOUR: Of 166A, of the need to advise the offender at or shortly after the time of conviction that the Court may consider the matter. I would have it in mind to adjourn to Monday morning at 9 o’clock.

MR CLARK: Yes. I would be approaching the Director today and given that the jury’s verdict was at 8 o’clock on the last working day, I don’t think we contravene that provision.

HIS HONOUR: No, I wouldn’t have thought so.

MR CLARK: It might be of use given the - I suppose I am quite improperly assuming an adjournment. If Your Honour were of a mind to adjourn it, It might be appropriate to simply - and to save the Court’s time - refer to the pages I intend to rely on in the case of -----

HIS HONOUR: I would like Mr Wilson to have the benefit at this time of hearing as much of your submissions as possible so he can at least think about what he wants to say over the weekend and the only matter that will be new to him when the Court resumes will be Doctor Mulholland’s evidence.”

After further submissions by the prosecutor, the matter was adjourned in the following circumstances:

“HIS HONOUR: Mr Wilson, the Prosecutor intends to call Dr Mulholland on Monday, he intends to tell me something of your previous offence on Monday, and he intends to tell me how the provisions of the Corrective Services Act operate in relation to your existing offence also on Monday when we come back. I think it is probably in your own interests, and better from your own point of view, if you wait until he has finished doing all that before your have your say. I propose then to let you make any submissions you want to me. Do you understand that?  You are not being deprived of your chance to make submissions.

PRISONER: It will happen on Monday.

HIS HONOUR: Yes, it will come on Monday. Adjourn the matter till 9 the o’clock on Monday?

MR CLARK: I am in Your Honour’s hands.

HIS HONOUR: I think that is the convenience of the Court, on Monday. Adjourn this matter until 9 o’clock on Monday. The prisoner is remanded in custody until then.”

When the Court resumed shortly before 11.30 a.m. on Monday, 29 April, the trial judge invited the prosecutor to resume his submissions, leading to the following:

"HIS HONOUR: Yes, Mr Clark?

MR CLARK: Your Honour, following Your Honour's remarks on Friday I undertook to take the issue up with the Director of Public Prosecutions as to the Crown's position on making an application for an indefinite sentence.

HIS HONOUR: You did?

MR CLARK: Yes, I did and I have done that. I have been instructed to advise the Court this morning that it is the intention of the Crown to seek the Attorney-General's consent in writing to the making of an application for an indefinite sentence.

HIS HONOUR: I see. What does that mean?

MR CLARK: Effectively this morning it means that Your Honour should now advise the prisoner in terms of section 166B, and I would be asking Your Honour also to then adjourn the matter until next Monday - end of next Monday would be the end of the seven business days - for the purpose of enabling the Crown to get the written consent of the Attorney-General and to make the application formally in Court.

HIS HONOUR: Do you envisage that the application would not only be made but heard?

MR CLARK: No. The legislation under 166 requires an adjournment of 20 days - not less than 20 days from the date of conviction. I would be submitting to the Court that it should then adjourn the matter until the expiry of that limitation period, perhaps to the week of 20 May. I have spoken with Doctor Mulholland, who is going on holidays next week, and he would be available particularly on the Tuesday and the Wednesday of the week of 20 May.

..."

There followed discussion between the trial judge and the prosecutor concerning whether it was necessary for all the matters relied upon in support of the application for an indefinite sentence to be proved “... in compliance with the rules of evidence”. The prosecutor informed the trial judge that, although he had placed the entire Mental Health Tribunal file before the Court in the course of his sentencing submissions, he had relied on only three of the doctors, namely Fama, Mulholland and Murphy. It was proposed to call those three doctors when the sentencing proceeding again came on for hearing. Following that discussion, and the prosecutor’s formal statement that the Crown intended to make an application under sub-s. 164(1) of the Penalties and Sentences Act subject to the written consent of the Attorney-General,  an application that the appellant be remanded under sub-s. 164(4), and further discussion between the trial judge and the prosecutor, his Honour addressed the appellant.

“HIS HONOUR: Mr Wilson, would you stand up, please?  I am obliged by the Penalties and Sentences Act to advise you that the Court may consider imposing an indefinite sentence on you pursuant to an application made by counsel for the prosecution. I am further obliged to inform you that the time for the hearing - I further do inform you, anyway, that the time for hearing that application must be not less than 20 business days from the date of your conviction and that the reason for this is so that evidence on sentence may be called by the prosecution and by you. The prosecution has told me that it will make that application within the time which it's allowed under the Act, which is seven business days. The Act gives me no discretion, I am obliged to adjourn the matter now to enable the prosecution to obtain the Attorney-General's consent to the making of the application. If he doesn't consent, of course, we just go on in the ordinary way. If he does consent then the application that's been foreshadowed will proceed. I would suggest that you explore whether or not you can obtain legal aid for the purposes of the hearing of the application. These are not usual applications and the consequences of such an application could be very severe to you if the application is successful. So I would suggest that you - it's entirely a matter for you, but I would suggest you seek to obtain legal aid for the hearing of the application.

PRISONER:  When is the hearing?

HIS HONOUR: At this stage I don't know. The matter will be adjourned until later this week to enable the application formally to be made, but all that will be is at 9 o'clock one morning, probably Friday morning, Mr Clark will formally make the application and then there will be an adjournment for at least three weeks from that date. It may be for a considerably longer period. You heard me discuss with Mr Clark the options for when it can be adjourned to. If it isn't to be adjourned until November, which doesn't seem a very wise thing to do, it would seem to be necessary that the hearing be one evening. However, that's a matter which no doubt can be discussed next Friday when the formal application is made.”

There was then further discussion between the trial judge and the prosecutor, following which his Honour ordered that the further hearing be adjourned until 9 a.m. on 3 May and remanded the appellant in custody.

The court resumed shortly before 9.10 a.m. on 3 May and the appellant was represented by his former solicitor. The prosecutor tendered a document which he described as “a consent pursuant to section 165 of the Penalties and Sentences Act under the hand of the Attorney-General and Minister for Justice” and, after some discussion about evidence and proof, said that “... pursuant to the Act, [I] formally make application for Your Honour to impose an indefinite sentence in respect of the accused”. The prosecutor went on to say that “... now, section 166, particularly paragraph (b), comes into play”. There was discussion between the trial judge, the prosecutor and Mr Fisher, following which his Honour said:

“Now, when that application is made, the Court is obliged, pursuant to section 166(b), if it is to impose an indefinite sentence, to adjourn the sentencing for not less than twenty days from the date of conviction so that evidence on sentence may be called by the prosecution and the offender.”

Discussion then took place concerning a suitable date for the further hearing. The trial judge then ordered that sentencing be adjourned until 15 July 1996, and remanded the appellant in custody. When the sentencing proceeding was resumed, the appellant was represented by Mr Irwin, instructed by Terry Fisher & Co.

The medical evidence

Reference has already been made to the opinion of the Government Medical Officer on 26 April 1995 that the appellant was then “suffering from an episode of manic depression and ... not fit to plead”, and the evidence given by Dr Fama in the absence of the jury on 19 April 1996 during the course of the appellant’s trial. Further, as has been noted, the Mental Health Tribunal file was tendered on 27 April 1996 during the sentencing proceeding. Later in the course of sentencing, on 15-16 July 1996, the prosecutor tendered the report to Peter Russo & Associates dated 15 April 1996 from Dr Mulholland, a further report dated 3 July 1996 from Dr Mulholland to the Director of Public Prosecutions, to which was attached a record of Dr Mulholland’s interview with the appellant, and a further report to the prosecution from Dr Fama dated 4 July 1996. Dr Fama and Dr Mulholland also gave oral evidence in the course of the sentencing proceeding on 15-16 July 1996.

Detailed reference will later be made to the opinions of Drs Fama and Mulholland, who, as their reports indicate, referred to the other medical reports dating back to April 1982, when the appellant was aged 13 years. Included were seven reports from Dr O'Regan, a psychiatrist who had treated the appellant at the Rosemount Psychiatric Hospital from 29 September 1992 up to 10 May 1994, i.e. some three days before the stabbing on 13 May 1994.  The appellant sought Dr O'Regan’s assistance at his trial, commencing at the beginning of the trial. It is desirable first to summarise the reports of the other doctors before reference to the reports provided in 1995 and 1996 by Dr Fama and Dr Peter Mulholland.

In his report dated 27 April 1982, Dr Persley, a psychiatric registrar, said that, from the age of 13, the appellant often acted impulsively and at times in an uncontrollable fashion. A decision was taken to admit him to the Wilson Youth Hospital because he was "out of control". Concern was expressed for his safety and that of others. The admission was seen as crisis intervention.

The report of Dr Foley dated 26 May 1982 is to similar effect. The appellant had seen several doctors named in the report. He was violent and abusive towards his mother, and on one occasion had a knife. When he attended the Juvenile Court at that time he was abusive and hostile to his father, and an assessor and several adults were required to physically restrain him to return him to the Wilson Youth Hospital. Dr Foley said "He is tense, keyed up, on trigger edge and gives the impression of a bomb ready to explode if questions concerning his attitude to his parents are pursued."

The lengthy psychological report by M. Marriott dated 1 June 1982 shows his full history. Mr Marriott said:

"There were non-significant trends in the directions of emotional instability (effected by feelings, easily upset), weaker superego strength (disregards rules, expedient, poorly developed social conscience), shyness (timid, threat sensitive), circumspect individualism (reflective, internally restrained), self-sufficiency (prefers own decisions, resourceful), and low self-sentiment integration (uncontrolled, follows own urges, careless of social rules)."

Mr Marriott also referred to the fact that the appellant often flew off the handle and did not have a good relationship with his mother.

Dr Hawkins in his psychiatric report of 23 June 1982 referred to ongoing family disharmony and other incidents which resulted in the appellant being placed into the Wilson Youth Hospital. Dr Hawkins said that the appellant was then a 13 year old boy of bright average intelligence who had appeared in court because of conflicts with parents but was otherwise progressing well at school apart from minor difficulties with one teacher. He recommended that the appellant return home and that a formal family therapy intervention be instituted.

Dr Todman, neurologist, in his report dated 25 July 1994, said that the appellant suffered a severe head injury on 4 September 1991 when burglars broke into the house and fractured his skull with a handle of an axe. Dr Todman noted that Dr Cantor had prescribed melleril for the appellant’s mood swings with little improvement, and that the appellant had received other anti-depressant medications. A complaint made to Dr Todman by the appellant was that his mood would swing from calmness to anger with only minor provocation. He said he frequently lost control since his head injury. Dr Todman concluded:-

"Mr Wilson has suffered from a number of symptoms since the head injury which occurred in the alleged assault on 4 September 1991. These have included change in mood with temper outbursts. Such symptoms are encountered in patients after substantial head injury particularly that involving the frontal lobes. From the history as stated with a serious head injury including skull fracture, I think that it is quite likely that Mr Wilson suffered from frontal lobe damage to account for this change in behaviour. Furthermore the headaches and dizziness which he has experienced since the  injury could be directly attributed to the damage to the skull and brain at that time. The treatment for headaches has largely been with analgesics and dizziness with Stemetil. The response has been limited so far but it is quite likely that there will be some gradual improvement in these symptoms over time. The precise duration is difficult to estimate but may be in the range of some further months or even years of symptoms. The change in mood is also difficult to estimate. Further opinions about this should be sought from Dr Cantor his psychiatrist regarding the prognosis and response to treatment which was subsequently given." (emphasis added)

The appellant commenced receiving treatment at the Rosemount Psychiatric Hospital under the care of Dr O'Regan. He was initially admitted for an unspecified time and then continued to receive treatment as an outpatient.

In his first report dated 29 September 1992, Dr O'Regan referred to the appellant's "acute admission" and to what the appellant regarded as "two major precipitating events" which resulted in his admission - (1) a friend admitted putting a large amount of rohypnol in his beer earlier in the evening for a joke and (2), he was sad at news that a friend for whom he navigated in car rallies was selling his car. The appellant said that he was acutely despondent over this at the time and he became irritable and erupted with violence. These "precipitating events" are consistent with the appellant's complaints to Dr Todman concerning his mood swings from calmness to anger with only minor provocation. The second of the "events" is a good example of what might be thought to be an insignificant occurrence, causing eruption into violence. Dr O'Regan referred to a "prolonged coma” as a result of the above head injury and that the appellant was “very confused and amnesic for the recovery phase of many days". A private specialist neurologist had confirmed that "considerable brain trauma had occurred". Dr O'Regan said that the appellant suffered a "great decline in tolerance of amphetamines, marihuana, and especially alcohol". The report continued:-

"He has consequently desisted altogether from drug taking, but in tense anxious states regarding concerns over subsistence factors, he has used alcohol despite low tolerance (easy intoxication and severe protracted hangovers), and describes out-of-control drinking pattern and definite pathologic intoxication with irritable, irascible dyscontrolled outbursts." (emphasis added)

Dr O'Regan's diagnosis was as follows:-

"Acute adjustment reaction in the form of episodic dyscontrol in person with chronic organic mental syndrome (personality type), increasing alcohol addiction, and past history conclusive of anti-social personality disorder.

With some difficulty he gained some rapport at interview and accepted some clarifying and supportive counselling." (emphasis added)

Dr O'Regan recommended "mild tranquillisation, together with attempt at a phase of alcohol abstinence, using clonazepam 0.5 mg ½ a.m. 1 evening and trifluoperazine 1 mgs 1 nocte with extensive explanation". He required the appellant to return in two weeks for attempted continuation of counselling measures.

Dr O'Regan's next report of 13 October 1992 is in the nature of a progress report. Dr O'Regan noted that the appellant was "perplexed as to how to resolve several conflict issues arising. His chances of problem solving have been greatly improved by progress he has made in eliminating the use of alcohol and the useful mild tranquillisation already being experienced from medication”. Dr O'Regan noticed "some over-relaxed apathy and some phases of paradoxical irritability are occurring from use of Clonezepam and it is ceased today."  Stelazine 1 mg nocte pro tem was directed. Dr O'Regan considered that the appellant’s headaches were probably on a vascular basis, and indicated that prothieden propylaxis would be tried later. After extensive counselling, Dr O'Regan required a review one week later. Dr O'Regan’s report of 17 November 1992 noted some disturbances after the appellant had begun some drinking and had become irritable as a result. He still had "atypical headaches related to scalp wound site". The doctor concluded that the appellant was managing on his own much better and had resumed a good family link with his mother. Prothieden 25 mg 1 nocte ("as anxiolyic for tension headache”) was prescribed. Another report of 1 December 1992 was a further progress report and suggested some degree of improvement. Dr O'Regan reduced clonazepam 0.5 oral to one-half d.d. Other drugs were to continue. The appellant was to be reviewed in two weeks.

Dr O'Regan’s report of 22 March 1994 concluded that the appellant appeared to be steadier and more stable than when last seen and was apparently complying with his established regime of medication. Although the appellant complained of poor recent memory in a fairly convincing way, recent memory, when formally tested, showed only a very mild defect with some difficulty in attention.

Dr Murphy, who also gave a psychiatric report in March 1994, referred to past diagnoses of episodic discontrol and a background history of chronic organic mental syndrome (personality type). The appellant was admitted to the Division of Psychiatry at the Royal Brisbane Hospital. He looked sleepy throughout the interview and his mood was described as euthymic and his affect was reactive, though inappropriate at times. He would laugh when talking about killing someone. During his brief admission he showed no aggressive behaviour although he seemed to receive gratification from describing his violent exploits. He was on fluoxetine at the time and on discharge was prescribed prozac 20 m.g. mane. He informed the doctor that he saw a child psychiatrist between the ages of 7 to 15 years, for violent and disruptive behaviour. He said he was put in a home at age 13 for "uncontrollable behaviour and was always running away".  The final diagnosis confirmed that of Dr O'Regan as follows:-

"Chronic organic mental syndrome (personality type - anti-social personality disorder), past history of adjustment disorder with episodic discontrol." (emphasis added)

It was recommended that the appellant be followed up by Dr O'Regan as an outpatient at the Rosemount Hospital.

In Dr O'Regan’s next report dated 12 April 1994, he concluded that the appellant was fairly steady in a home situation mental state, but experienced irritable reaction at times with very little aggravating factor involved. The appellant, who was very isolated at that time, tended to be drowsy by day and restless at night. He admitted to the occasional use of alcohol. Dr O'Regan ordered him to change his prozac medication to an evening dosage schedule after his evening meal.

Dr O'Regan's final report was dated 10 May 1994, which, as earlier stated, was only three days before the appellant stabbed Woodall. The appellant was then trying to take prozac at about 9.00 p.m. at night. He said he felt a lot calmer but was wary about re-involving himself with former associates. He was being visited by his parole officer at home and was due to go to court as a witness in a case in which one of his mates was alleged to have murdered a man. Dr O'Regan said that the appellant should be reviewed in one month.

Dr Mulholland gave three reports, dated respectively 5 May 1995, 15 April 1996 and 4 July 1996.

When the appellant was examined by Dr Mulholland prior to his first report, he was not taking his prescribed medication (an anti-depressant “Prozac”) but was not depressed. Dr Mulholland described the appellant as “feeling frustrated and angry over issues to do with the court case and this mainly consists of hostility towards various solicitors”. The appellant’s “predominant emotion is one of chronic anger and he is prone to emotional outbursts over which he has some limited control”. In that report, Dr Mulholland traced the appellant’s account of his psychiatric history, which began when he was about five or six years of age and included the placement of the appellant in Wilson Youth Hospital when he was about 13 years old because he was “uncontrollable”. The appellant had before then started running away from home and, although he completed grade 10 at a State High School, he failed most of his subjects and was expelled early in grade 11 after experiencing major problems with teachers. He started using cannabis at the age of 13 and thereafter used it on a several times per day basis until a head injury in 1991, which is further referred to below. His history of drug use involved cannabis, amphetamines, LSD, and heroin. He started consuming alcohol heavily at the age of 15 and since then had been a chronic binge drinker. According to what he told Dr Mulholland, on the day on which he stabbed Woodall he was drinking from noon to 10 p.m., and had consumed beer, bourbon, rum and other alcoholic drinks; he had spent about $100.00 on alcoholic liquor, and was “half pissed”. He had already told Sergeant Ainsworth much the same in the record of interview on the day after the stabbing. Dr Mulholland’s report also contained the following passage:

“He always thought himself to be ‘different’ from others and was always considered to be different from others.”

“He has always had poor interpersonal relationships with others and has always been prone to temper outbursts. He reports that the only time in his life that he has ever felt any acceptance was when he joined a gang of youths who were called ‘The Sick Boys’. Apparently the criteria for entry into this group was to be regarded as being different or psychologically sick.”

“The most significant medical history of his life occurred in September 1991 when he was struck with an axe handle. This left him with a left temple extra dural haematoma and left temporal bone fracture. The haematoma required evacuation.”

Dr. Mulholland went on to say that since that injury the appellant has been troubled with headaches, dizziness, mood swings, poor balance, increased irritability and poor memory. He “ceased to use the illegal drugs as they caused him headaches and did not give the previous good experience, however his drinking deteriorated after 1991 and his hangovers were worse.”

Later, in his first report, Dr Mulholland stated:

“The main psychological issue with Robert Wilson is that he suffers from an antisocial personality disorder which has been aggravated by former multiple ‘drug’ abuse and ongoing alcoholism.”

“He also has features of an organic personality syndrome due mainly to head trauma and a mild dysmnesic disorder due to head trauma. The net result of all this is that he does suffer from episodic dyscontrol and has an intermittent explosive disorder. It should be noted that his ability to control his emotions and his behaviour will vary. At times he has reasonable control over same and at other times it is anticipated that he has minimal, or perhaps no, control.”

“This man has had longterm emotional and conduct problems and it is likely that alcohol and drug abuse in his teens aggravated his developing personality disorder.”

“It is likely that the 1991 head injury further aggravated his personality disorder.”

“He is fit for trial at the present time and it is expected that he will remain fit for trial. At the same time it is possible that he may engage in emotional and/or behavioural outbursts at trial.” 

“In respect of  Section 27 it is possible that this man could be conceptualised as having a disease of the mind. However the main issue was probably that he was intoxicated with alcohol at the time of the alleged offence.” 

“At the best of times this man has limited ability to control his behaviour and, when under the influence of alcohol, I imagine that his ability to do so becomes almost non existent. As I understand Section 27 to be customarily applied I would not think that he is an appropriate case. If the victim has been unfortunate enough to die then section 304A would be an appropriate course to pursue.”

“Robert Wilson has a severe antisocial personality disorder which is complicated by numerous factors including his ongoing alcoholism. He professes a wish to continue drinking if and when he has the opportunity and it is more likely than not that the offending behaviour will continue.”

“He does appear to be somewhat dependent upon the structured supportive life of  being in prison and, to a certain extent,  he is institutionalised into prison life. He is reasonably comfortable in prison and refers to it as being his ‘home.’” 

“It is considered that his general ability to control himself and to function in a unstructured environment is significantly compromised and he is aware of this. At least to a certain extent he prefers to be in prison.”

“Conventional psychiatric treatment is of limited benefit with Wilson. Longterm supportive outpatient treatment with judicious administration of medication is appropriate. However, from a psychiatric angle, what is really needed is for him to be placed in a benign institution more or less indefinitely. These days that is not possible to put into practice.”

Dr Mulholland’s reference to s. 304A recognises that the appellant had an abnormality of mind such as to substantially impair one or more of the capacities referred to in that section.

Dr Mulholland’s second report,  which was very brief, read as follows:

“Further to my report of 5 May 1995 I have read the report by psychiatrist Dr P G Fama dated 12 October 1995.

It is noted that the basic psychiatric problems with Robert Wilson are that he has had a virtually life long antisocial personality disorder which is aggravated by various factors including:

- former multiple ‘drug’ abuse

- chronic alcoholism

- head trauma causing organic personality syndrome such that he has an episodic dyscontrol syndrome with an associated intermittent explosive disorder.

This man’s ability to control himself at the best of times is limited.  when he is intoxicated, as I assume he was at the time of the index event, then his ability to control his behaviour is even less.

Assessing the matter is complicated by his amnesia for the index event. I consider this amnesia to be genuine.

As I understand the matter his ability to form an intention is significantly decreased when compared to the average ‘normal’ person. However it is not necessarily absent. His ability to form an intent would also have been decreased by his being intoxicated alcohol at the relevant time.”  (emphasis added.)

Dr Mulholland’s final report of 4 July 1996 followed an examination of the appellant at the Arthur Gorrie Correctional Centre on 3 July 1996, i.e., after he had been convicted,  and was primarily directed to the question of whether an indefinite sentence was applicable. Again it is appropriate to set out extracts from the report:

“[Wilson] described having been particularly unhappy in the court situation about the allegations that he was a bisexual and he reports that this is what made him completely lose his temper in the court room situation.

... He does not particularly wish them [homosexuals] any harm, however he is very sensitive to any notion that anybody might suggest or think that he is homosexual.”

“Overall my impression of Robert Wilson at this interview on 3 July 1996 was that he presented as being a reasonable young man with reasonably good insight into his condition.”

“If the interview of 3 July 1996 was all that one had to go by then I would not have any concerns about issues such as indefinite sentences. My concerns, as previously made in my report of 5 May 1995, remain the same. His mental state and his general behaviour are currently quite satisfactory and this is because he is in a highly structured controlled environment, he does not have access to alcohol or illegal substances and he is under general medication supervision such that he regularly takes Prozac medication.”

“If there were no legal constraints in respect of him, in my view, the preferred psychiatric method of dealing with him would be to have him in a long term psychiatric hospital on an indefinite basis. However those possibilities are not really open in 1996 in these days of deinstitutionalisation and treating psychiatric patients in the community.”

“Robert ... has a marked problem with dealing with the normal vissicitudes and stresses and strains of everyday life and it is in these circumstances, particularly if he is not on his medication and even more so if he is drinking, that he is liable to explode and engage in dangerous behaviour.”

As will be seen, when Dr Fama interviewed the appellant on 4 July 1996,“one-to-one” in a controlled environment in which the appellant had no access to alcohol and presumably had taken his prescribed medication, the appellant’s behaviour was again observed to be calm, rational and cooperative.

Dr Mulholland’s oral evidence in the course of the sentencing proceeding included the following:

“HIS HONOUR: ...

Over a long period of years what prospects of improvement, by reason of the treatment, exist? -- Well, I am repeating Doctor Fama here. To a certain extent we have time on our side. He is still a relatively young man and one can expect there to be some general improvement just with the passage of time. I think the alcohol is a major factor. I think that the issue of illegal use of illegal substances is behind him because he finds it no longer rewarding after the head injury. That is a fortuitous side effect of the head injury, but I think alcohol is the issue. There has been so many prisoners, the first thing they do when they get out of gaol, they get drunk and it all happens again. I don’t know. That’s the hard one to predict. He does seem to have some insight into the dangers of alcohol and he quite honestly said to me that he doesn’t know how he would go with alcohol at the present time. It is a key issue, I think.”

“MR IRWIN: ...

In paragraph 11.2 you talk about his ability to exercise control. Were you being accurate in stating your opinion when you said this, ‘At times he has reasonable control over same.’  In context that must be a reference to his emotions and behaviour and at other times it is anticipated that he has minimal or perhaps no control; is that an accurate statement that you made there?-- Yes.”  (emphasis added)

The first of Dr Fama’s two reports to which it is proposed to refer is the report of 12 October 1995 to the Mental Health Tribunal following examination of the appellant at the Arthur Gorrie Correctional Centre. Dr Fama had examined the appellant on at least five prior occasions, commencing on 29 June 1994, and had also had numerous informal contacts with the appellant and access to the committal depositions. Dr Fama said that he demonstrated no depressive symptoms, claimed to eat and sleep well and appeared to have settled adequately into prison life. The following are quotations from that report:

“From time to time he has reviled and confronted staff but there is no record of violent behaviour within the prison.”

“He no longer suffers from headaches. Occasionally, he states, he becomes giddy and staggers. On brief examination he has a slight, ovoid depression in the upper left temporal region of his skull from his head injury in 1991.”

“The chief clinical features in this man are expressed tension and hostility, coupled with self-preoccupation about his troubled life. There is nothing to suggest psychotic thinking. His affective range is restricted in that he seems unable to express appropriate emotion other than a pervading sense of alienation from society, and a fierce determination to hit back in response to rebuff or criticism.”

“With regard to the criminal charge which he faces, Robert is puzzled and dismayed at his amnesia for events, but does not proffer remorse.”

“The clinical psychologist’s report of 1 June 1982 notes ‘social withdrawal, aggression, anxiety and antisocial attitudes’.”

“Socially, Robert has achieved little. He has terminated past jobs after violent disagreements with employers. For the last several years he has received a disability support pension.”

“He has few interests. He has been a gang member and is currently an enthusiastic supporter of the Australian National Socialist Movement and the Australian National Front. ‘I’ve always been a racist’, he declares emphatically.”

“He does also have some appreciation of his own problems and the risk of further violence should he be returned to the community. He says that he feels and functions better in prison than on the outside.”

“Overall it is clear that Robert’s behavioural deviance long pre-dated the head injury. There is no known cause for his psychopathy.”

“There has been limited response to a program of psychotherapeutic support coupled with an antidepressant, as initiated by Dr O'Regan."

“In my evaluation this man’s diagnoses are:

1. Dissocial personality disorder, ...
2. Alcohol dependence syndrome, ...
3. Residual organic personality impairment, due to trauma, ...”

Dr Fama agreed with Dr Mulholland that there had been multiple drug abuse in the appellant’s past and features of episodic discontrol of an “explosive” type. In answer to specific questions asked of him, Dr Fama reported:

“The diagnoses above do not, in my view, individually or collectively amount to a disease of the mind within the usual meaning of Section 27 of the Criminal Code. Rather,  they represent a severe developmental disability aggravated by alcoholism and mild residual brain damage.”

“Fitness for trial

... He clearly understands the meaning of a plea of guilty or not guilty and would be capable of following court procedures and giving meaningful comment and assistance to counsel in his defence. He is from his record prone to tempered, abusive outbursts in court, but his operational and confrontative attitudes cannot reasonably be interpreted as rendering him unfit for trial. Restraint may be needed and resorted to in the course of any prolonged trial.”

“Though this is not within the jurisdiction of the Tribunal, I would further suggest that Robert’s psychiatric disabilities should preclude his conviction for an offence of specific intent.”  (emphasis added).

In his last report, dated 4 July 1996, which was completed after re-examining the appellant at the Arthur Gorrie Correctional Centre on 4 July 1996, Dr Fama said that there was nothing major which he would wish to amend in his report of 12 October 1995 and his diagnosis remained as there stated. He reiterated that the appellant had a reduced tolerability for stress and provocation. He added that the appellant was prone to serious violence only when alcohol intoxicated. Dr Fama also answered specific questions addressed to him in the following terms, so far as presently material:

“...

2. He is still angry at what he regards as the poor deal he received from counsel during the early part of his trial. He resents his barrister’s not having accepted his full instructions. He also feels bitter about witnesses whom he believes lied in court, and he contests the accuracy of facts related in Dr Mulholland’s psychiatric report. However, he has no intention of carrying out the several wild threats he has made at different times to the people involved.
3. Robert does have a reduced tolerability for stress and provocation in the community. He is prone to become seriously violent only when alcohol-intoxicated. I would not myself rate his criminal history to date as any worse than that of the average prisoner convicted of a violent offence causing serious bodily harm.
4. If Robert is to be released in future, practical risk management could include continued psychiatric oversight, alcoholism counselling, medication including Prozac and probably Antabuse (an alcohol antagonist).”

“This vulnerable man currently presents in a constructive, non-threatening manner in a controlled setting. His long-term future is a matter of weighing the risks of offending against the possibility of rehabilitation. Factors suggesting caution comprise Robert’s alcoholism, his established personality disorder, brain damage, and the abrupt and extreme violence of the offence for which he has been convicted. Factors suggesting a more reformatory approach include his present stability (within a restricted environment), his willingness to accept counselling and medication, the ongoing support of his parents, and his relatively sparse criminal history.”

“... He seems quite happy with his legal assistance at present. He appreciates that his tension and dyscontrol in court greatly prejudiced his case before the jury. He felt too exhausted by the final day of the trial to call me as a witness who might have assisted his case concerning his lack of intent to kill or to cause grievous bodily harm. If there is a re-trial this matter could be properly considered, if Robert is able to maintain his present composure and make appropriate use of legal help.”   (emphasis added)

It is clear that Dr Fama took into account all of the threats and statements made by the appellant in the formation of the opinion as to the appellant’s condition. Dr Fama said that if the appellant had not taken his prozac for one day at the time when he stabbed Woodall, that would not have had a great effect on his level of agitation as it was a slow acting drug. However, omitting his medication might be of importance psychiatrically to the appellant. Dr Fama also said that a dose of prozac would assist in calming the appellant down.

In examining Dr Fama, the prosecutor appears to have accepted that - "[t]here was clear evidence of his having taken a fair quantity of alcohol on the night he committed the offence". Dr Fama’s opinion was that, if the appellant abstained from alcohol, his "problems loss of, temporary loss of control [were reduced] to a much smaller level". However, the appellant would not be free from temporary loss of control altogether if he abstained from alcohol. The appellant suffered from a neuro-psychiatric condition, which included brain damage. Loss of control could be brought on with severe stress alone or by alcohol with minor stress, such as the alleged homosexual advance made to the appellant. It was Dr Fama’s opinion that stress triggered his behaviour during the trial. The appellant, he said, was all at sea. The stress obviously suffered by the appellant during the trial led to "a virtually complete loss of control". Although he said at one point that "one might interpret it as partly contrived but I would say partly a genuine impairment of control", Dr Fama later said that the appellant’s outbursts during the trial were genuine

While it is true that the last reports of each of the two psychiatrists, Dr Fama and Dr Mulholland, related to examinations after the appellant had been convicted, there is no reason to doubt that each would have given evidence to substantially similar effect if he had examined the appellant prior to or during his trial and given evidence before the jury.

Further, there is no reason to think that, even if technically entitled to do so,^[73] the prosecution would have objected to medical evidence if the appellant did not himself give evidence as a foundation for the expert opinions. The prosecutor did not demur when the appellant intimated, during the prosecution case, that he proposed to call Dr Fama. On the contrary, his response was to provide the appellant with a copy of the entire Mental Health Tribunal file, which he said included “not only Dr Fama but Dr Mulholland and various reports that Dr Fama’s evidence would be based on”, which “might be useful”. The trial judge said “... on one view of the matter [the file] could be of considerable assistance to the defence”. At the same point in the trial, his Honour told the appellant that he was concerned that the appellant should have Dr Fama’s report to the Mental Health Tribunal “because it would be, on one view of matters, some people might think, in your interests to have it and perhaps call the doctor”.^[74]  Later on the same day, the prosecutor said that he was prepared to telephone Dr Fama and arrange for his attendance when required.^[75]  The trial judge asked if rebuttal evidence was contemplated,^[76] and was told that the prosecution did not “at this stage intend to even seek to call rebuttal evidence”; the “intention will be to test the basis for the opinion of Dr Fama”. His Honour sought clarification, asking whether the prosecution proposed to call Dr Mulholland or anyone else, and was told that that was not expected; it was “anticipated that Dr Fama will use Dr Mulholland’s report as well as the other reports which I’ve provided to you as a basis for his opinion”. It was obviously accepted that Dr Fama could have regard to the appellant’s medical history, of which he had considerable knowledge, as can be seen from his report of 12 October 1995. 

In any event, there was ample evidence of the doctors’ own observations of the appellant and his behaviour, including during periods when he was hospitalised and, in the case of Dr Fama, during the trial.  Dr Fama had commenced to treat the appellant in June 1994, very shortly after he had stabbed Woodall, and had observed him from time to time over the following period. It would also have been permissible for the experts to have regard to the appellant’s conduct and appearance, according to the prosecution evidence, at or near to the time when he stabbed Woodall.

Shortly stated, the appellant’s psychiatric condition was a volatile combination of an anti-social personality, chronicled from 13 years of age, brain damage from a head injury in 1991, and alcohol dependency. His psychiatric disability manifested itself erratically and spontaneously by intermittent loss of control, which could occur by only slight provocation, especially when he had consumed alcohol. While the trial judge’s attitude was ambivalent,^[77] the doctors accepted that the appellant’s losses of memory and control were genuine.  The jury, the tribunal of fact in relation to the appellant’s guilt or innocence of attempted murder, did not have the medical evidence to assist it to decide whether the appellant intended to kill Woodall. More accurately, it did not have that evidence when deciding whether or not there was a reasonable doubt concerning whether the appellant had that intent.

The importance of the medical evidence is emphasised by the trial judge’s findings for the purpose of imposing an indeterminate sentence^[78] and his Honour’s statements elsewhere during the trial. For example, in his summing up, the trial judge told the jury that they “could not conclude” from the appellant’s statements in court “that he has any condition medical or otherwise which would prevent the formation of the relevant intent”, that they “should not draw any inference from his behaviour in court two years after the event as to what his condition might have been on the night in question”, and that, in considering whether intent should be inferred, they should have regard to the nature of the stabbing and what was said and done before and after the stabbing. While it was not submitted to this Court that those directions were incorrect, they serve to highlight the glaring omission of any medical evidence from the appellant’s trial. Fluctuations in the appellant’s behaviour during his trial were entirely consistent with the medical evidence of his condition.

Further emphasis to the importance of the medical evidence is provided by the circumstance that, had it been called, the evidence must have assisted the jury to better understand the appellant’s behaviour in court,^[79] which almost certainly would have subconsciously influenced the jury adversely to the appellant despite the trial judge’s direction to the jury to ignore what they had observed when determining the appellant’s guilt. It is unnecessary to consider whether evidence of the appellant’s medical condition would have been admissible for the purpose of assisting the jury to understand his behaviour in their presence, if it had not been admissible in relation to his intent when he stabbed Woodall. As has already been stated, the evidence was admissible for the latter purpose.

The trial judge’s sentencing remarks:

When sentencing the appellant, the trial judge said:

“The evidence before me completely satisfies me to the relevant standard that if the accused were released forthwith he would be a serious danger to the community in the statutory sense. Indeed, I did not understand the defence to contest that proposition. It is quite apparent, having regard to the severity of the offence which he committed and to his current condition and attitude, that those matters constitute him a serious danger to the community. He suffers from a personality disorder. He has that disorder aggravated by organic brain damage caused by a serious head injury in 1991 and it is further aggravated by alcohol dependency. It is unnecessary to elaborate the medical evidence which expands upon his present condition in those three respects. It was the unanimous view of the two psychiatrists who gave evidence that at the present time there would be a risk of serious physical harm to members of the community if he were released forthwith. Indeed, as I understood the evidence of Doctor Fama, the prisoner himself is inclined to recognise that as a problem at the present time and his conversation with Doctor Fama seems implicitly to contain that recognition.”

After expressing the opinion that the question presented by sub-s. 163(3)(b) of the Penalties and Sentences Act was whether the convicted person would be a serious danger to the community if immediately released, not when he or she would otherwise be released if a specific term of imprisonment was imposed, the trial judge said that, in reaching a conclusion that the statutory requirements for the imposition of an indefinite sentence were satisfied, “I have not taken into account any conduct of the prisoner during the course of the trial”, which, it was said “was, in large measure, self indulgent”.

The trial judge’s remarks to the appellant include the following:

“The offence of which you were convicted was a callous and violent offence. You have shown no remorse about the matter. You have said that you have no memory of it and I accept that that is so.  However, I also am convinced that, if you wished to, you would be quite capable of accepting that you were the perpetrator of the offence and, if you wished to, you could develop a sense of remorse about it, not merely regret at having done it and been caught, but genuine remorse.

In my view, you are able to control your conduct to a very considerable degree.  I have no reason to suppose that you were unable to control your conduct on the night in question, though perhaps you were unwilling to try to control it to some degree because of the personality disorder to which I have referred. It may be more accurate to say that you have a personality disorder because you are unwilling to try to control your behaviour. That is something which I hope you will pay attention to in the future and try to mend because I strongly believe you have the ability to do it. Your conduct during the trial was not in my view in any way the result of an inability to control yourself. I am aware that Dr Fama has expressed a different opinion, but he was not present for almost all of the time. I have already referred to my remarks at page 380 of the transcript.

I am satisfied that you deliberately stabbed Woodall because he was a homosexual. It is quite possible that you went hunting homosexuals that night, but I accept the submission made on your behalf by your counsel that the evidence is insufficient to form a concluded view that that was the case.

Your conduct during the trial, in my view, went far beyond mere questions of an absence of remorse. You displayed a willingness to inflict pain deliberately on your victim when he gave evidence. You required him to be recalled for further cross‑examination and when he was recalled, you said, and I quote, ‘Well, obviously he knew what he was doing, so he's just told another lie then and he's a dirty poofter. I've got nothing else to say. Hope you die of AIDS you fucking scum.’, and shortly afterwards, ‘At least I'll be alive in gaol, not dead in the ground, you fucking poofter.’

PRISONER:  That's right.

HIS HONOUR:  Nothing in that suggests to me that the penalty which I should impose should go very far beyond below the top of the range for this offence. Your personal history discloses nothing of any great significance and, in particular, the criminal history does not indicate offences of violence which would warrant any particular severity. I am, as I have said, satisfied that at times you do act without control in the way to which the doctors have referred, but I have not seen it in this courtroom.  The sentence which I would have imposed, had I not imposed an indefinite sentence, would have been imprisonment for 18 years. ...”(emphasis added)

The role of this Court

The appellant’s argument raises two questions for this Court. Those questions are whether the appellant’s conviction of attempted murder is unsafe and unsatisfactory in the administration of justice and whether there has been a substantial miscarriage of justice.^[80]  The first question is concerned with whether there is a significant possibility that the appellant was wrongly convicted of attempted murder.^[81]  The second is concerned with whether the appellant lost a chance of acquittal of attempted murder which was fairly open to him.^[82]  Subject to the matters discussed below, if either question is answered in the affirmative, the appellant is entitled to a retrial.

A large body of available evidence relevant to one critical issue, namely whether the only rational inference was that the appellant intended to kill Woodall when he stabbed him, was not placed before the jury. If regard is had to that evidence, it is impossible for this Court to be satisfied that the appellant intended to kill Woodall or to conclude that the jury must have been satisfied beyond reasonable doubt that the appellant intended to kill Woodall if it had had that evidence.

In deciding what orders should be made in the circumstances, the Court must consider the trial with the advantages of hindsight and an opportunity for dispassionate review which was not available to the trial judge.

The appellant’s lack of legal representation after he dismissed his lawyers

Despite the powerful public interests in ensuring that a vulnerable person is fairly tried and that criminal trials, involving judicial and other public resources and time and inconvenience for witnesses and jurors, are conducted competently and efficiently, an accused person cannot generally be required to accept legal representation, act on legal advice or yield control of the conduct of his or her defence to a lawyer.^[83]  It is increasingly common for appellants who have been convicted to complain that their instructions were not followed or that their legal representation, often publicly funded, was incompetent. Such complaints are frequently unfounded and are not to be encouraged. While the principle established by Dietrich v. R.^[84] is not satisfied by token legal representation but is derived from an accused person’s right to a fair trial and is concerned with the provision of a lawyer appropriate for that purpose, it does not follow that a legally aided person is always entitled to the legal representation of his or her choice.^[85]  Ordinarily, an accused who rejects the legal assistance offered or dismisses his or her appointed lawyers and conducts his or her own defence will not escape the consequences of such a decision or steps subsequently taken in the trial.

However, the circumstances in this case are exceptional. The appellant had been in prison for almost two years prior to the commencement of this trial. He was known to suffer from a psychiatric disorder. More than two months had passed since he had been found fit for trial by the Mental Health Tribunal and notified of his trial date. On the eve of his trial, different solicitors and a different barrister were engaged to represent him. He met his new solicitor only a few days before he was arraigned and did not meet his counsel until the morning of his trial in the cells under the Court. His lawyers had not conferred with Dr Fama or Dr O'Regan or any of the other medical practitioners who had treated the appellant over an extended period. When the trial was adjourned from 16 to 18 April to allow Dr O'Regan to be consulted, that was not done, perhaps because he was unavailable. Despite the appellant’s requests, Dr O'Regan was not available to him at any stage. There is nothing to indicate that the appellant’s lawyers were prepared to mount a defence based on expert evidence relevant to the appellant’s intent when he stabbed Woodall.

It is unnecessary to criticise the lawyers whom the appellant did not want from the outset and later dismissed to conclude that his dissatisfaction was justified even if his decision was ill-advised. The appellant obviously needed skilled and properly prepared legal representation, in part because of his tendency to lose control. His decision to dismiss his lawyers cannot be separated from his mental condition and the effect which it had on his behaviour.

The appellant’s omission to call evidence

Similar considerations apply to the appellant’s decision not to call evidence, or more precisely Dr Fama. What occurred must be seen in the context that the appellant was imprisoned, legally unrepresented, and, at best, limited in his capacity to act in his own interests. For example, as has been noted, Dr O'Regan was unavailable to him despite his complaints on a number of occasions during his trial. His mental condition, of which evidence was needed, diminished, and perhaps eliminated, his ability to decide in his own interests to call Dr Fama. He had no opportunity to call other medical evidence if he had wanted to do so, although it may be assumed that, except perhaps if Dr O'Regan was available, he would have declined to do so.

Even an accused who is represented by experienced counsel is not necessarily denied relief on appeal because of an error made in the course of a trial, at least if more is involved than a tactical decision which turns out to have been misjudged.^[86] 

Notwithstanding remarks made by the trial judge at some points during the trial, the appellant’s statements and conduct during the trial suggest to us that the appellant fluctuated between a determination to obstruct the trial and cause it to be adjourned or to miscarry and an attitude that his position was hopeless and his participation in the trial futile. At one point in the trial, after hearing evidence from Dr Fama, the trial judge held it “impracticable” for the appellant even to be present in court, and, at various stages, the appellant’s psychiatric problems seem to have been accepted by both the prosecution and the trial judge. The medical evidence indicates that the appellant lacked the judgment and skills needed to make critical decisions concerning the conduct of his defence, extending from decisions concerning  the instruction or dismissal of legal representation, behaviour in court, appropriate cross-examination of prosecution witnesses and the evidence to be called. It is inconceivable that the appellant made a rational, tactical decision not to call evidence to lay a foundation for an appeal, despite his repeated statements that he intended to call Dr Fama and indications by both the trial judge and the prosecutor that such evidence might be helpful to him. Without such evidence, he faced almost certain conviction of attempted murder, the most serious count on the indictment, and inevitably a lengthy period of imprisonment.

The courses open to the trial judge

Because the appellant was unrepresented, the trial judge was required “to take special pains to ensure that [he] receive[d] a fair trial”.^[87]  No doubt, his Honour set out to discharge that duty in the extraordinarily difficult circumstances with which he was confronted. One of those circumstances was that presented by the prosecutor’s decision not to call the available medical evidence, apparently so as to be in a position to cross-examine^[88] Dr Fama when he was called by the appellant.

Both the trial judge and the prosecutor were aware that available expert evidence relevant to his intent when he stabbed Woodall was potentially helpful to the appellant. It was open to his Honour to inquire why the prosecutor was not calling the medical evidence and to encourage him to do so. While the prosecutor could not be required by the trial judge to call Dr Fama or any other witness,^[89] his Honour could have reminded the prosecutor of what was said in Whitehorn v. R.^[90]  Deane J. said:^[91]

“The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross‑examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable. If the Crown proposes to refrain from calling as a witness a person whose name appears on the back of the indictment or information or whom it would otherwise be expected to call as a matter of course, it should communicate that fact to the accused or his lawyer a reasonable time before the commencement of the trial.”

Dawson J. said:^[92]

“In Richardson v. The Queen [(1974) 131 C.L.R. 116] this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.

Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye‑witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye‑witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. See R. v. Dora Harris [[1927] 2 K.B. 587, at p 590]; Ziems v. Prothonotary of the Supreme Court of N.S.W. [(1957) 97 C.L.R. 279, at p 294]; Seneviratne v. The King [[1936] 3 All E.R. 36, at p 49]; Adel Muhammed El Dabbah v. Attorney‑General (Palestine) [[1944] A.C. 156, at pp 167‑169]; Reg. v. Oliva [[1965] 1 W.L.R. 1028; [1965] 3 All E.R. 116] ; Reg. v. Lawson [[1960] V.R. 37]; Reg. v. Lucas [[1973] V.R. 693, at pp 705‑708].

No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. ...”

The prosecutor could also have been reminded that, in Apostilides,^[93] the High Court in a joint judgment^[94] recognised that, although it is the prosecutor’s responsibility to decide whether a person will be called as a witness for the prosecution, a decision by a prosecutor not to call a person as a witness could, when viewed against the conduct of the trial taken as a whole, give rise to a miscarriage of justice. Two passages in that case merit repetition. At pp. 575-576, it was stated:

“We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined.”

Then, at p. 577-578, the Court said:

“In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn [(1983) 152 C.L.R. 657] was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.”

If the prosecutor persisted in what the trial judge considered was an unfair tactic, his Honour could have revisited the appellant’s application for a mistrial, discharged the jury and remanded the accused for retrial.^[95]

No doubt the trial judge was justifiably anxious to avoid such a course, which involved a number of competing considerations^[96] and obvious objections, at least some of which had earlier been enunciated by the prosecutor. However, the paramount consideration was fairness to the appellant.

The only other course was for the trial judge to involve himself in the function of calling evidence.^[97]  That course is permissible only “in the most exceptional circumstances”.^[98]  In his written submissions to this Court, Mr Irwin identified 16 circumstances which make this case exceptional.^[99]  We do not consider it necessary to discuss those matters individually.

Some of the reasons for the “extreme reluctance” which a trial judge should feel towards calling witnesses which were identified by Dawson J. in Whitehorn and adopted by the High Court in Apostilides might have been avoided in this case if the trial judge had initially called Dr Fama in the absence of the jury. That course would have presented its own problems, particularly if the appellant continued to be uncooperative. However, it would have enabled the prosecutor to cross-examine Dr Fama, and the trial judge to decide, after hearing Dr Fama’s evidence, whether it was admissible and whether he, or perhaps some additional or other witness, should have been called in the trial in the interests of the appellant. Such a course would also have permitted the prosecutor and the appellant to reconsider their position in the light of the evidence which it was known Dr Fama would give. No doubt, if Dr Fama was to give evidence, the prosecutor could have been allowed to reopen his case to call other expert evidence if he had wished to do so.

Although the High Court granted special leave to appeal in Apostilides and its view of the law differed from the basis on which the Victorian Court of Criminal Appeal had allowed an appeal against conviction,^[100] the appeal to the High Court was dismissed. The essential reason for that course emphasised that the critical issue is whether there has been a miscarriage of justice.^[101]  In our opinion, the course of the trial, and the jury’s verdict which necessarily involved a conclusion that the appellant intended to kill Woodall when he stabbed him, lead to the conclusion that a miscarriage occurred in this case. The jury was left to decide the appellant’s guilt or innocence without a body of available evidence which was relevant to an essential element of the offence with which he was charged and which the prosecution had to prove beyond reasonable doubt: namely, whether, when he stabbed Woodall, he intended to kill him. The appellant’s psychiatric condition, involving intermittent loss of self-control, was directly relevant to that issue.^[102]  Whatever the reason for the position which was reached, the case should not, in our opinion, have been sent for the jury’s decision on the basis only of the prosecution evidence and the trial judge’s summing-up, if that could reasonably have been avoided.

The appeal should be allowed, the appellant’s conviction quashed and a new trial ordered unless the prosecution elects to have a verdict of guilty of grievous bodily harm substituted.^[103]  In that event, the appellant should be resentenced by the trial judge.