Hansen v Director of Public Prosecutions
[2006] QCA 396
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- Appeal Determined (QCA)
- Hansen v Director of Public Prosecutions[2006] QCA 396
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Hansen v Director of Public Prosecutions[2006] QCA 396
Reported at [2010] 2 Qd R 253
Hansen v Director of Public Prosecutions[2006] QCA 396
Reported at [2010] 2 Qd R 253
SUPREME COURT OF QUEENSLAND
PARTIES: | SHANNON ANDREW MATTHEW ARTHUR HANSEN |
FILE NO/S: | MHC No 216 of 2004 |
Court of Appeal | |
PROCEEDING: | Appeal from the Mental Health Court |
ORIGINATING COURT: | |
DELIVERED ON: | 13 October 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 September 2006 |
JUDGES: | Keane JA and Jones and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL - APPEAL - APPEAL FROM MENTAL HEALTH COURT - appellant charged with murder of his stepfather - appellant committed for trial to the Supreme Court following preliminary hearing - Director of Public Prosecutions referred matter of appellant's mental condition relating to offence of murder to Mental Health Court - Mental Health Court concluded there was reasonable doubt as to whether appellant had committed murder - provocation - appellant challenges Mental Health Court's conclusion that the Mental Health Act 2000 (Qld) precluded the Mental Health Court from deciding that the appellant was either of unsound mind or of diminished responsibility when the deceased was killed - whether decision of Mental Health Court was correct Mental Health Act 2000 (Qld), s 267, s 268 Criminal Code 1899 (Qld), s 304 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934, cited Johnson v The Queen (1976) 136 CLR 619, considered Masciantonio v The Queen (1995) 183 CLR 58, cited R v Rae [2006] QCA 207; CA No 330 of 2005, 9 June 2006 cited Re RWC [2002] QMHC 015; No 0001 of 2002, 23 December 2002, applied |
COUNSEL: | B G Devereaux SC, with C L Morgan, for the appellant M J Copley for the respondents |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondents |
[1] KEANE JA: The appellant was charged with the murder of his stepfather, Trevor Kupsch ("the deceased"), at Hervey Bay on 19 June 2004. The deceased suffered multiple stab wounds, and died as a result of wounds which penetrated the left lung and heart. It is common ground that the wounds were inflicted by the appellant. The appellant was committed for trial to the Supreme Court following a preliminary hearing.
[2] Pursuant to s 256(1)(b) and s 257(1)(c) of the Mental Health Act 2000 (Qld) ("the Act"), the Director of Public Prosecutions ("the DPP") referred the matter of the appellant's mental condition relating to the offence of murder to the Mental Health Court ("the MHC").
The decision of the Mental Health Court
[3] On the referral, the MHC accepted evidence that, at the time the appellant killed the deceased, the appellant was suffering from an abnormality of mind which substantially impaired his capacities. The MHC found that "the expert evidence points consistently and compellingly to a finding of diminished responsibility".[1]
[4] The MHC also determined that there was a reasonable doubt, "based on provocation", as to whether the appellant had committed the offence of murder. On that footing, the charge of murder was ordered to proceed to trial according to law.
[5] The MHC's conclusion that there was a reasonable doubt, "based on provocation", as to whether the appellant had murdered the deceased was based upon the appellant's statements to police that he had been "tipped … over the edge" by provocative insults made by the deceased.[2] The MHC said:[3]
"Mr Hansen has described remarks made and a physical struggle, the combination of which could not but be provocative, particularly to a person of his youth and in his circumstances; and his description is not … contradicted by any objective evidence."
[6] The MHC concluded that s 268 of the Act precluded the MHC from deciding, pursuant to s 267(1)(a) or (b) of the Act, that the appellant was either of unsound mind, or of diminished responsibility, when the deceased was killed. The appellant now seeks to challenge that conclusion. I shall set out the relevant provisions of the Act before discussing the arguments which arise on the appeal.
The Act
[7] The relevant provisions of the Act are s 267 and s 268. Section 267(1) of the Act provides:
"On the hearing of the reference, the Mental Health Court must -
(a) decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and
(b) if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed - decide whether the person was of diminished responsibility when the alleged offence was committed."
[8] By s 267(2) of the Act, the duty of the MHC under s 267(1) was expressly subject to s 268 and s 269 of the Act.
[9] Section 268 provides relevantly as follows:
"(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).
(2) However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.
(3) If elements of the disputed offence are elements of another offence (the alternative offence), subsection (1) does not prevent the court from making a decision under section 267(1)(a) for the alternative offence.
…
(4)If the court decides the person was of unsound mind when the alternative offence was committed proceedings against the person for the disputed offence are discontinued."
The arguments on appeal
[10] The appellant submitted that it is erroneous in point of law to regard reasonable doubt that the appellant committed murder, by reason of the defence of provocation under s 304 of the Criminal Code 1899 (Qld), as precluding a finding of diminished responsibility under s 267(1)(b) of the Act. The respondent argued that, if there is a reasonable doubt about whether the appellant was provoked to kill the deceased, then the appellant cannot have committed the offence of murder, but only the offence of manslaughter. The offence of manslaughter was not the disputed offence for the purposes of s 268(1). The disputed offence for the purpose of s 268(1) was murder. Accordingly, so the respondent submitted, by virtue of s 268(1) of the Act, the MHC was obliged not to make a decision on the reference under s 267. I shall return to a discussion of these arguments after first mentioning another argument raised by the appellant.
[11] The appellant also argued that the MHC's conclusion that provocation under s 304 of the Criminal Code was "obviously" available to the appellant did not satisfy the requirement of s 268 of the Act that the MHC must have a "reasonable doubt" that the appellant is guilty of murder. Mr Devereaux SC, who appeared for the appellant, made it clear that this argument was not that it was not open on the evidence for the MHC to conclude that the evidence established a reasonable doubt as to whether the appellant was provoked into killing the deceased. That concession was necessary because the appeal to this Court under s 334 to s 337 of the Act is an appeal in the strict sense and not an appeal by way of rehearing. Accordingly, it is not open to this Court to substitute its view of the facts for that taken by the court below.[4] Instead, Mr Devereaux's argument was to the effect that, as a matter of law, the MHC's finding that provocation was available as a partial defence to a charge of murder was erroneous in point of law in that a conclusion that provocation is available as a defence to murder depends upon an assessment of the effect of the provocation upon an ordinary person. The appellant was, by reason of his mental condition, not an ordinary person. Accordingly, it was submitted, the consideration of the issue of provocation by the MHC miscarried.
[12] The MHC's approach to the issue of provocation as a defence to murder was expressed in the following terms:[5]
"Mr Hansen has described remarks made and a physical struggle, the combination of which could not but be provocative, particularly to a person of his youth and in his circumstances; and his description is not, unlike the claims of intoxication and self defence, contradicted by any objective evidence. It is necessary therefore to consider whether the obvious availability of provocation to reduce murder to manslaughter creates a reasonable doubt as to guilt of murder for the purposes of s 268 which would preclude any finding of diminished responsibility."
[13] In my respectful opinion, this passage shows that the MHC directed its mind to whether the provocation in this case was such as to be capable of causing an ordinary person to lose self control, and to whether it actually caused the appellant to lose self control. This was a sufficient consideration of the issues which arose in relation to provocation as a defence to murder. It was not necessary to consider whether the appellant's response to the provocation was that of an ordinary person. Rather, the question was whether, objectively speaking, the provocation was such as would cause an ordinary person to lose self control, and, if it was of such a kind, whether it had actually had that effect upon the appellant.[6] I would, therefore, reject this argument.
[14] I return then to consider the major contest between the parties. The appellant's principal argument was based on the proposition that the defence of provocation under s 304 of the Criminal Code can be invoked by an accused only if the offence of murder has otherwise been made out. On this basis, it is urged that the availability of a defence of provocation under s 304 of the Criminal Code is not an obstacle to the MHC making a decision under s 267(1) of the Act.
[15] In order to appreciate this argument, it is necessary to set out the relevant provisions of the Criminal Code. In this regard:
● Section 300 provides: "Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case";
● Section 302 provides relevantly:
"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -
(a)if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
…
is guilty of murder."
● Section 303 provides: "A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."
● Section 304 provides relevantly:
"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation … the person is guilty of manslaughter only."
● Section 304A provides relevantly:
"(1)When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind … as substantially to impair the person's capacity to understand what the person is doing, or the person's capacity to control the person's actions … the person is guilty of manslaughter only.
(2)On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.
…"
[16] The appellant's argument is that s 304 of the Criminal Code "only becomes relevant once a court is satisfied [that] the accused is otherwise guilty of murder". The appellant seeks to support this proposition by reference to the remarks of Barwick CJ in Johnson v The Queen[7] that:
"The Crown, before provocation becomes an operative factor at all, must have satisfied the jury beyond reasonable doubt that murder, provocation apart, had been committed by the accused. Thus, there is no question from that point on of any acquittal."
On this footing, it is said that if the MHC is at the stage of considering provocation, there could be no doubt - reasonable or otherwise - that the elements of the offence of murder are made out. Accordingly, the appellant argues, s 268 of the Act is not an impediment to the MHC making an order under s 267(1)(b) of the Act.
[17] The difficulty with this argument is that the observations of Barwick CJ, upon which the appellant relies, were not made in relation to the function performed by the MHC under the Act. Under s 383 of the Act, the MHC must decide "references of the mental condition of persons" by inquiring "into the matter" referred to it. That "matter" was the appellant's mental condition relating to the offence of murder. The task which the MHC was obliged to undertake required it to come to its own decision as to whether there is reasonable doubt as to whether the appellant committed the offence of murder prior to the making of a decision under s 267(1)(a) or (b) of the Act. The appellant could not be regarded by the MHC as having committed murder because of the operation of s 304 of the Criminal Code.
[18] The appellant's argument sought to distinguish between the notion of "guilt" of an offence for the purposes of s 302, s 303 and s 304 of the Criminal Code and the notion of having "committed" the disputed offence.
[19] But as the appellant's submissions acknowledge, s 304 and s 304A of the Criminal Code "do not form a hierarchy of defences". The Act recognises that there may be multiple bases for reasonable doubt as to whether the person committed the disputed offence, ie as to the person's guilt of that offence. That this is so is evident in s 268(2) (which acts as a qualification to s 268(1)), which allows a decision to be made under s 267(1) if the reasonable doubt as to whether the person committed the alleged offence "exists only as a consequence of the person's mental condition" (emphasis added). Inevitably, as a matter of law, one of these bases is s 304A of the Criminal Code. It is only where the doubt as to whether the disputed offence was committed arises as a consequence of the person's mental condition, and not some other basis for reasonable doubt, that the barrier in the path of a decision under s 267(1)(a) or (b) is lifted.
[20] In this regard, I respectfully agree with the following passage from the reasons of the MHC:[8]
"… I do not think one can approach the process required under s 268 by taking the sections of the Criminal Code in a piecemeal way, determining satisfaction of guilt of murder under s 302 without reference to s 304. To do so ignores the interrelatedness of the two provisions. Section 302 begins with this qualification: 'Except as hereinafter set forth …' before going on to list the circumstances in which unlawful killing amounts to murder. That reference to exception can only be an allusion to s 304 and s 304A, which reduce criminal responsibility from murder to manslaughter (See Ugle v The Queen (2002) 211 CLR 171 at 177 as to the relationship between equivalent sections of the Criminal Code (WA)). Each of those sections explains its status as an exception to murder explicitly in its opening clauses: 'Where a person who unlawfully kills another under circumstances which but for the provisions of this section, would constitute murder …'. One cannot, in light of those clear indications as to how the sections are to work together, adopt the artificial approach of quarantining s 302, as proposed. I come with some regret to the conclusion that because I am satisfied that there is a reasonable doubt as to guilt of the offence of murder based on provocation I cannot proceed to a finding of diminished responsibility."
[21] The appellant put an alternative argument to the effect that the term "alleged offence" in s 268 of the Act is properly understood as referring to the offence of "unlawful killing", in consequence of which there can be no relevant doubt as to the commission of the offence. This argument is distinctly artificial. It requires one to ignore the ineluctable truth that the appellant was charged with murder, and that what was referred to the MHC was the matter of the appellant's mental condition relating to the offence of murder.
[22] Further, s 268 of the Act, in referring to the commission of the offence, cannot be taken to refer only to the actus reus of unlawful killing, ie the physical acts involved in the killing, because the terms of s 268(2) make it clear that a mental element is relevant to whether or not the alleged offence has been "committed" for the purposes of s 268 of the Act.
[23] In this regard, I respectfully agree with the decision of Wilson J in Re RWC,[9] where her Honour said:
"I do not accept the submission of Mr Ross QC for the defendant that 'offence' in s 268 means only the relevant physical act or acts, because, according to the submission, to include the mental element would necessarily rob [the MHC] of power to investigate a defendant's mental condition. Even where a defendant has committed the physical acts which are elements of an offence and has done so with the requisite intent, he is entitled to be found not guilty if his mental condition was such that he was suffering from unsoundness of mind or, in the case of a charge of murder, to be found guilty only of manslaughter where his mental condition was such that he was suffering from diminished responsibility. There can be intent in the context of unsoundness of mind, although the usual legal consequences of that intent are altered in consequence of the defendant's mental condition."
[24] It may be that, in framing s 267 and s 268 of the Act, the legislature did not advert to persons in the position of the appellant. It may also be that the result which the MHC was compelled to reach in this case is not consistent with a general policy which might be thought to inform the Act, namely, that a person in the appellant's position should not be exposed to the criminal trial process where mental abnormality impaired his capacities.
[25] In my respectful opinion, it is not fruitful to speculate in this regard, because it is clear from the language of the Act that it was simply not open to the MHC to make a decision under s 267(1)(a) or (b) of the Act. One may only respectfully concur with the observations of the MHC that:[10]
"… it seems anomalous that the defendant should have to face a murder trial because there exists, on the basis of evidence of provocation, a reasonable doubt that he is guilty of murder. The rationale identified by Dowsett and Chesterman JJ [in Re Beasley (Mental Health Tribunal, 19 March 1999) and Re Lloyd (Mental Health Tribunal, 23 February 2001) respectively] - keeping persons who may not be guilty of any offence from involuntary placement in the mental health regime - for desisting from a finding has less force here, where a finding of diminished responsibility would not have that consequence; it would merely reduce [the appellant's] criminal responsibility and, correspondingly, the charge he faced, to manslaughter. The inability to achieve that result seems rather to defeat one of the implicit purposes of the Act, to protect persons with mental illness or abnormality from the rigours of a criminal trial. Secondly, it means that the jury will have to add to its tasks the consideration of diminished responsibility when this court is designed to resolve psychiatric issues of that kind. It may be that legislative intervention is needed so that the defences created respectively by s 304 and s 304A do not jar in this context."
Conclusion and order
[26] In my respectful opinion, the decision of the MHC was correct. The appeal should be dismissed.
[27] JONES J: I respectfully agree with the conclusions Keane JA has reached on the arguments raised on this appeal.
[28] The legislative imperative of s 268 of the Mental Health Act 2000 is clear. The Mental Health Court (MHC) must refrain from making a decision under s 267(1)(a) or (b) if there is a reasonable doubt that the person under review has committed the offence the subject of the referral. The MHC must make such a determination on the view it takes of the materials presented on the reference. In this way it may have to determine matters which ultimately will fall to be considered by a jury. At the same time the MHC will hear evidence and may consider (without deciding) the mental state of the accused at the time the offence was committed. The importance of the mental state in assessing the criminality of the accused is obvious. However, the opinion of the MHC is, on this question, simply not available if circumstances require s 268 to be applied.
[29] The practical disadvantages of this regime are well illustrated in this case. The accused is charged with murder and in respect of that offence was referred to the MHC. There is ample evidence that the unlawful killing was accompanied by the relevant intention such that a finding of murder would be inevitable but for the defences provided by ss 304 and 304A of the Criminal Code.
[30] The consequence of the MHC not being permitted to decide the question of diminished responsibility is that the accused, whose mental capacity is seriously in question, is exposed to running a criminal trial to raise a defence of diminished responsibility which would be unnecessary were there some flexibility in the legislative structure. The circumstances of this case highlight the need for a review of these provisions of the Mental Health Act.
[31] For the reasons expressed by Keane JA, I agree that the appeal should be dismissed.
[32] DOUGLAS J: I agree with the reasons of Keane JA and with the order proposed by his Honour.
Footnotes
[1] Re Hansen [2005] MHC 028 at [12].
[2] Re Hansen [2005] MHC 028 at [4].
[3] Re Hansen [2005] MHC 028 at [19].
[4] Fox v Percy (2003) 214 CLR 118 at 129 [32]; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 at 1942 - 1943 [49] - [52].
[5] Re Hansen [2005] MHC 028 at [19].
[6] Masciantonio v The Queen (1995) 183 CLR 58 at 68; R v Rae [2006] QCA 207 at [66] - [71].
[7] (1976) 136 CLR 619 at 633. See also Stingel v The Queen (1990) 171 CLR 312 at 328.
[8] Re Hansen [2005] MHC 028 at [26] (citation footnoted in original).
[9] [2002] QMHC 015 at [25].
[10] Re Hansen [2005] MHC 028 at [27].