R v Maloney[2000] QCA 355

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  I have had the advantage of reading the reasons of Thomas JA.  As his Honour points out, the statute presently governing the status of people who have been acquitted on account of unsoundness of mind has been replaced by another which has not yet been proclaimed.  The latter contains a provision (s 204 of the Mental Health Act 2000) which appears to reverse the burden of proof, with respect to the question whether releasing the patient would create a danger to the safety of others.  Assuming the new provisions become law, they might possibly make it easier for people who have been acquitted on account of unsoundness of mind to be released into the community.  Of course, there is always the possibility that further relevant changes in the law might occur during the period of confinement of the person so acquitted;  or there might during that period be a stiffening or relaxation of the authorities' attitude toward applications for release.

2. Some jurors, concerned about the danger presented by a person who has committed a crime of violence and whose sanity is debatable, would no doubt be more inclined to acquit on account of unsoundness of mind if confident that there would be no release as long as any doubt about the safety of that course remained. Such jurors would, if the terms of s 204 of the Mental Health Act 2000 were explained to them, perhaps tend to favour conviction rather than acquittal on account of unsoundness of mind, on the basis that the former verdict would provide more solid protection to the community.  So a full explanation of the position at law as set out in the reasons of Thomas JA could well be disadvantageous to the defence.  That would be so, I suspect, even if no reference were made to the unproclaimed provision and the jury were simply made aware that, under the Mental Health Act 1974 a killer convicted on account of unsoundness of mind could, if thought to have recovered, be released fairly soon;  a juror might well contrast that uncertainty with the relative certainty of s 166(1) of the Corrective Services Act 1988.  But even under s 166, a prisoner serving life may, in special circumstances, be released on parole at any time. The really useful information for the jury, if it is thought desirable that they be made aware of the likely consequences of the different verdicts available, would be to tell them when, on past experience, comparable killers are in practice likely to be released into the community.

3. Although in Lucas (1970) 120 CLR 171 at 175, the High Court said that it is "in general" unnecessary and undesirable that the judge tell the jury of the consequences of a verdict of not guilty on the ground of insanity, the court did not say that it is always either unnecessary or undesirable.  But it is difficult to imagine circumstances in which one could be confident that succumbing to the temptation of attempting to relieve jurors' anxieties about the possibility of early release would be beneficial.  As good a case could perhaps be made, where there is a possibility of either conviction of an offence mentioned in the Schedule to the Penalties and Sentences Act 1992 or convicting of a lesser offence, for explaining the sentencing consequence attached to a verdict of the former kind.  The simple truth is that, whether the killer is convicted or acquitted on account of unsoundness of mind, there could in theory be a release quite soon after the verdict.  But to tell the jury this might unduly alarm them;  to say more would stimulate guesswork on their part as to the likely results of the different verdicts.

4. I am inclined to the view that it is best for judges not to give directions about such topics, but to tell the jury that they should concentrate on the factual issues laid before them, not on the likely consequences of different possible verdicts.

5. Subject to these observations, I agree with the reasons given by Thomas JA. I also agree with his Honour's conclusion, that the appeal should be dismissed.

6. THOMAS JA:  The appellant was convicted of burglary, stealing and murder.  The Crown case was that on about 25 September 1997 he broke into the dwelling of a Mrs Williams and stole a knife and some other items, and that four days later he murdered another woman, Ms Kennedy, in her room.  The knife stolen from Ms Williams was found in that room with the appellant's blood on the handle.

7. The only issues at trial concerned the defence of unsoundness of mind on all these charges, and the defence of diminished responsibility on the charge of murder. There was a deal of evidence from persons who knew the appellant which revealed strange behaviour by him shortly before and after the killing.

8. Six psychiatrists gave expert evidence, expressing a wide range of views.

• Dr Venugopalan considered that the appellant was suffering from schizophrenia at the time of the killing.  In his view the appellant was not deprived of any of the relevant capacities mentioned in s 27 of the Code, but he suffered from substantial impairment of the capacity to know what he was doing, the capacity to control his actions, and the capacity to know that he ought not to do the act in question.  Thus, he supported the defence of diminished responsibility.
• Dr Fama considered that the appellant was suffering from schizophrenia at the time of the killing and that he was deprived of two of the relevant capacities mentioned in s 27 including the capacity to know that he ought not to do the act in question.  He thus supported the defence of insanity.
• Dr Varghese considered that the appellant was suffering from schizophrenia at the time of the killing and that he was deprived of one of the relevant capacities mentioned in s 27, namely the capacity to know that he ought not to do the act in question.  He accordingly supported the defence of insanity.
• Dr Reddan rejected any diagnosis of schizophrenia and considered that the appellant had an anti-social personality disorder which fell short of the requirements of both unsoundness of mind and diminished responsibility.
• Dr Thompson rejected any diagnosis of schizophrenia and considered that the appellant had an anti-social personality disorder falling short of the requirements of both defences.
• Dr Grant was unable to say whether the appellant was suffering from schizophrenia, but seemed to favour the view that he suffered from a major anti-social personality disorder with schizotypal traits.  His evidence fluctuated somewhat, but on the whole did not support the existence of genuine delusions, and failed to support either defence.

9. The only point argued on appeal is that the conviction is unsafe because the judge failed to give appropriate directions to the jury as to the consequences of the respective verdicts that were open to them. Counsel for the appellant conceded that ordinarily it is an error to direct a jury as to the likely sentencing consequences, because that would introduce an irrelevant consideration. But in the particular circumstances of this case mentioned hereunder he submitted that special directions should have been given.

10. At the beginning of the fifth day of trial the learned judge mentioned that a member of the jury had through the bailiff asked a question about the consequences of the various verdicts. Defence counsel inter alia requested her Honour to inform the jury that if the appellant was found of unsound mind he would not be released until it was considered that he did not pose a risk to the public. Her Honour declined.

11. The directions given by the learned trial judge in due course were as follows:

"You should not allow any concern about what might happen to Mr Maloney if a verdict of not guilty on account of his unsoundness of mind is given, or what sentence might be imposed if you were to return a verdict of manslaughter because of diminished responsibility.

To be fretted by such considerations would deflect you from your task, which by your oaths as jurors you have undertaken to perform, namely to return a true verdict according to the evidence."

12. At a later point, in the context of explaining the law on insanity, Her Honour added:

"If he were of unsound mind, he is excused from criminal responsibility for his acts."

13. The evidence before the jury strongly suggested that the appellant was dangerous. The evidence included his behaviour at the material time, his behaviour on other occasions and also his own statements to psychiatrists suggestive of a propensity for extreme violence. Counsel submitted that in the absence of information of the likely consequences following a verdict of "not guilty on account of unsoundness of mind" the jury was likely to have apprehended that if they returned a verdict of not guilty on the grounds of insanity or of manslaughter based on diminished responsibility the appellant might be released from custody, and that they would be responsible for releasing a dangerous killer into the community. An accurate explanation of the legal consequences of the verdicts sought by the defence would, he submits, have avoided the possibility of such irrelevant considerations without deflecting the jury from their proper role. The risk that the rejection of the defences was influenced by such a consideration is said to make the convictions unsafe and unsatisfactory.

14. Counsel for the appellant further submitted that it is likely that a jury would these days be aware that a conviction for murder would lead to life imprisonment and thereby protect the community from the appellant, but that the consequences of the other verdicts would not be known, and in the absence of suitable guidance from the judge, might be the subject of uninformed speculation.

15. The actual consequences to the appellant according to the verdict returned might, of course, vary very considerably. Any finding of "guilty” would require a sentence under the criminal justice system which in circumstances like the present would result in a prison term. However a verdict of not guilty on account of unsoundness of mind would require the appellant to be dealt with under s 647 of the Code which ultimately requires him to be dealt with pursuant to the Mental Health Act 1974.  Possible consequences might then vary according to determinations that are then made by a patient review tribunal.^[1]  The tribunal may determine that the "patient" be detained in a security patients hospital or any other hospital, or in prison.^[2]  There is an additional power in the Governor-in-Council to make an early determination that the person be detained in a security patients hospital.^[3]  If the person becomes a "restricted patient" under part 4 of the Act his liability to be detained is reviewed by the Patient Review Tribunal, and he may not be released "unless a tribunal has found that the patient can be released having regard to the interests of the patient's own welfare and the protection of other persons".  It is apparent that the giving of an accurate summary of the system is far from easy and it would be impossible, for example, to predict in any given case whether such a person would be detained for a long time or a short time.   Once one starts to describe the system, it is difficult to know where to stop, because a truncated description may be misleading.

16. Counsel for the appellant submitted that a direction along the following lines would be appropriate:

"If you find the accused not guilty on account of unsoundness of mind, that does not mean that he will then be released into the community.  If you make that finding I am required to make an order that he be kept in strict custody in a place determined by the court until he is dealt with under the Mental Health Act.  Under the Mental Health Act, he would be reviewed by a tribunal from time to time.  He would not be released into the community unless and until a tribunal found that he could be released having regard to his own welfare and the protection of others."

17. That however could be misleading. Another Act, the Mental Health Act 2000 has now been passed, although it has not yet been brought into operation.  The scheme it introduces is expressed in curiously negative terms.  Under s 204 the Tribunal must not revoke the relevant order –

"if it is satisfied the patient, because of the patient's mental illness or intellectual disability, represents an unacceptable risk to the safety of the patients or others".

Surprisingly, that would seem to permit release by a tribunal which was uncertain or which held a view falling short of affirmative satisfaction of unacceptable risk to the safety of others.  However I return to the question of what might be thought to be a fair description of the present system as it might apply to the appellant.

18. The stated purpose of giving such a direction would be to avoid their relevant and inaccurate speculation by a jury. But the information that it is suggested that the trial judge should have supplied is admittedly irrelevant to the question of criminal responsibility which is the only question entrusted to the jury. It is a curious fact that the purpose of the court's intervention is to replace uninformed irrelevancy with informed irrelevancy. There is the further problem that once a court starts to explain the consequences of various verdicts that the jury might return, it is difficult to know where to stop.

19. The traditional wisdom, and indeed the law as it stands in Australia today is that stated in Lucas v The Queen.^[4]  The general rule is that it is undesirable and unnecessary that a jury be informed of the consequences of a verdict of not guilty on the ground of insanity.

"In our opinion, the law does not require any such direction.  Indeed, the jury are not concerned with the consequences which may follow upon their verdict whether it be a verdict of guilty of the offences charged or a special verdict of not guilty on the ground of insanity.  In our opinion, the judge is not bound to tell them, and counsel ought not to be allowed in any case to tell them, of the possible results of their verdict.  No doubt, in places where capital offences remain, juries know what is the maximum punishment for the offence.  Even then, in our opinion, it is undesirable that counsel be allowed to attempt to divert the jury from their consideration of the issues for their decision by emphasis upon the consequences of their verdict should they convict.

Not only do we think that a trial judge is not bound to inform the jury of the consequences of a verdict of not guilty on the ground of insanity, but in our opinion it is in general unnecessary and undesirable that he should do so."

 and:

"There is, in our opinion, no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is truly, so far as the jury are concerned, an extraneous matter.  It is, in our opinion, generally undesirable that reference should be made to the possible consequences which may ensue upon any verdict which the jury may properly return.

Of course, there may be occasions when it is appropriate to apprise the jury of the consequences of the special verdict, i.e. not guilty on the ground of insanity.  For example, if counsel should so far exceed his function as to speak to the jury of such consequences, it may be not only desirable but necessary in the interests of justice for the judge to advert to the matter in his summing up.  Attorney-General (SA) v Brown affords an illustration of such a case (see p 454 of the report).  There may be other circumstances in which a like intervention by the presiding judge is justified and at times called for.  But the conclusion that he may, or should, refer in such cases to the consequences of the verdict can only arise in special circumstances."

20. Lucas is consistent with earlier indications in the High Court and in the Privy Council.^[5]  In Brown v The Queen^[6] the High Court Dixon CJ, McTiernan, Fullagar, Kitto and Taylor JJ stated:

"No doubt when to a capital charge the defence of insanity is raised, it may sometimes be thought necessary or at all events proper to inform the jury of the legal consequences of a verdict of not guilty on the ground of insanity.  Where this is so, it is a matter which obviously requires discreet and careful handling."

Although the High Court and the Privy Council differed as to whether the appeal should be allowed, in neither court was it thought objectionable per se for the trial judge to have confirmed to the jury that if he were found not guilty because of insanity he would be committed to goal "to await the Governor's pleasure", followed by a comment that how long that would be "may be problematical".

21. The New Zealand decision of R v Lorimer^[7] likewise recognises it as within the discretion of the judge whether such a reference should be made, and "there may be cases where it is just in the interests of the accused to do so."^[8]  The Court of Appeal however considered that in the circumstances there was no error on the judge's part in refusing to give such a direction.

22. It is of interest to note that in New South Wales statutory provision has now been made in s 37 of the Mental Health (Criminal Procedure) Act 1990 requiring the trial judge to explain the "legal and practical consequences" of a verdict of not guilty by reason of mental illness.  In Hilder^[9] the court noted the submission that s 37 was introduced to meet the perception that juries would not give a special verdict for fear that a dangerous accused would be released.  Hunt CJ at CL stated:

"The point of explaining to the jury the legal and practical consequences of a guilty verdict, is to emphasise the contrast between punishment of the accused for his criminal conduct if found guilty and treatment for his mental condition if there is a special verdict, just as the point of explaining to the jury the consequences of a not guilty verdict is to emphasise the contrast between going free if found not guilty and being detained until there is no longer any threat of danger to the public if there is a special verdict."^[10]

In that case the complaint on behalf of the appellant was that the trial judge had gone too far in that he had directed not only on the consequences of the special verdict, but had also told them that if found not guilty he would go free, and had subsequently, on the jury's request, told them that if found guilty it was almost certain that he would sentence the prisoner to penal servitude.  The appellant's submission was rejected.

23. When confronted by a situation such as that which arose in the present trial, there are I think essentially only two courses open to the trial judge. One is firmly to remind the jury that concerns about the consequences of the verdict are irrelevant and remind them of their duty to give a decision on the true issues. The other is to give a short statement that upon a verdict of not guilty on the ground of unsoundness of mind there is a system in force under the Mental Health Act which provides for the indefinite detention of such persons and that there are review procedures which could lead to release at some stage in the future.  It would be quite undesirable in my view to go into any greater detail or to engage in anything of the nature of an attempted forecast.

24. The learned trial judge's response in the present case was in my view reasonable. Indeed her Honour applied the prima facie rule that is recognised in Lucas.  At the same time, without here attempting to lay down what might amount to special circumstances calling for a more specific direction, it has to be recognised that the general public, and no doubt juries, are currently very much concerned about the issue of public safety and that the giving of a direction to allay a fear of the kind that might have been entertained in the present case might more readily be given now than may have been the case some decades ago.  There is some force in the argument that where a jury shows a desire to know the possible consequences of its verdict, it is a desirable precaution to dispel any possible erroneous concerns such as the possibility that such a verdict would lead to immediate release.  In my view, the jury having asked the question, and the defence counsel having requested a responsive direction, and the case suggesting as it did that the appellant was a dangerous person, it would have been within the learned trial judge's discretion to have given such a direction.  However I do not consider that there was any error in her Honour declining to do so, and in proceeding to draw attention to the true issues instead.

25. The appeal should be dismissed.

26. MOYNIHAN SJA:  I have read the reasons prepared by Thomas JA and by Pincus JA.

27. I agree the appeal should be dismissed. As those reasons demonstrate if it does become appropriate to direct a jury as to the consequences of a verdict of not guilty on the ground of insanity, it is best to do so in stressing in positive terms the jury’s role and that the consequences of such a verdict is outside their area of responsibility.