Reid v Director of Public Prosecutions
[2008] QCA 123
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Reid v Director of Public Prosecutions[2008] QCA 123
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Reid v Director of Public Prosecutions[2008] QCA 123
Reid v Director of Public Prosecutions[2008] QCA 123
SUPREME COURT OF QUEENSLAND
CITATION: | Reid v DPP (Qld) & Anor [2008] QCA 123 |
PARTIES: | ALFRED AARON REID |
FILE NO/S: | Appeal No 8810 of 2007 MHC No 246 of 2006 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal from the Mental Health Court |
ORIGINATING COURT: | Mental Health Court at Brisbane |
DELIVERED ON: | 23 May 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 May 2008 |
JUDGES: | Keane JA, White 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 – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where in the course of the hearing both psychiatrists assisting the Mental Health Court expressed their doubts as to the probity of the expert evidence before the Court – where the Mental Health Court proceeded to deliver its reasons for judgment and order immediately – whether the appellant was unfairly denied the opportunity to respond to the comments made by the assisting psychiatrists APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – whether the decision of the Mental Health Court was unreasonable and contrary to the evidence MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Mental Health Court relied upon the opinion of the assisting psychiatrists when weighing up the evidence against the appellant – whether the role of the assisting psychiatrists under s 389 of the Mental Health Act 2000 (Qld) extends to advising the Court as to the probity and appropriate weight to be given to pieces of expert evidence Mental Health Act 2000 (Qld), s 267, s 382, s 383, s 385, s 389, s 404, s 405, s 406, s 407, s 408 Attorney-General of Queensland v Kamali (1999) 106 A Crim R 269; [1999] QCA 219, considered Hansen v DPP [2006] QCA 396, cited McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51, cited York v The General Medical Assessment Tribunal & Anor [2003] 2 Qd R 104; [2002] QCA 519, considered |
COUNSEL: | A W Moynihan SC, with D C Shepherd, for the appellant B G Campbell for the first respondent No appearance for the second respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the first respondent No appearance for the second respondent |
- KEANE JA: The appellant has been charged with two offences: armed robbery with actual violence, and driving without a licence. Pursuant to s 257(1) of the Mental Health Act 2000 (Qld) ("the Act"), "[t]he matter of the [appellant's] mental condition relating to the offence[s]" was referred to the Mental Health Court ("the Court").
- Pursuant to s 267(1)(a) of the Act, the function of the Court on the hearing of the reference was to "decide whether [the appellant] was of unsound mind when the alleged offence[s] [were] committed."
- The term "unsound mind" is defined in Sch 2 of the Act to mean:
"the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence."[1]
- The Court heard the reference on 17 September 2007. The Court was constituted by Philippides J. Her Honour was assisted by psychiatrists, Dr J F Wood and Dr J M Lawrence.
- At the hearing, it was submitted to the Court by Counsel on behalf of the appellant and each of the respondents that the evidence before the Court established that the appellant was of unsound mind at the time of the armed robbery so that he "has a defence of unsoundness of mind" in relation to that offence.
- The psychiatrists assisting the Court expressed a view contrary to the views of Counsel for the parties. The Court accepted the views of the psychiatrists assisting the Court, and declined to conclude that the appellant was of unsound mind at the time of either of the offences.
- The appellant now appeals to this Court pursuant to s 334 of the Act. The grounds of appeal sought to be agitated by the appellant are: first, that the appellant was denied procedural fairness in that he was not given the opportunity to respond to the statements of the assisting psychiatrists before the Court proceeded to make its decision; secondly, that the Court erred in "receiving and acting on advice from the assisting psychiatrists that exceeded their statutory function"; and, thirdly, that the Court's failure to conclude that the appellant was of unsound mind was unreasonable having regard to the evidence.
- I propose now to set out the relevant provisions of the Act. I will then summarise the evidence, the course of the hearing and the reasons for the Court's decision. I will then discuss the arguments agitated on the appeal.
The Act
- The Court is established as a superior court of record by s 381(1) of the Act. Pursuant to s 382(1), the Court is constituted by a member of the Court sitting alone. Section 382(2) of the Act provides that "[i]n exercising jurisdiction under this Act, the court must be assisted by 2 assisting psychiatrists." Under s 385 of the Act, a Supreme Court judge may be appointed to be a member of the Court.
- Section 383(1) of the Act provides that the Court's jurisdiction includes "deciding references of the mental condition of persons". Section 383(2)(b) provides that "[i]n exercising its jurisdiction, the court … may inform itself of any matter relating to the inquiry in any way it considers appropriate." Section 404 of the Act provides that the Court is not bound by the rules of evidence. In accordance with s 405 of the Act, the matter to be decided by the Court must be decided on the balance of probabilities.
- Section 389 of the Act deals with the functions of the assisting psychiatrists. It is in the following terms:
"(1) The functions of an assisting psychiatrist are to–
(a) examine material received for a hearing to identify matters requiring further examination and to make recommendations to the Mental Health Court about the matters; and
(b) make recommendations about the making of court examination orders; and
(c) assist the court by advising it–
(i) on the meaning and significance of clinical evidence; and
(ii) about clinical issues relating to the treatment and detention needs of persons under this Act.
(2) However, an assisting psychiatrist’s functions are limited to matters within the psychiatrist’s professional expertise."
- Section 404 deals with the rules of evidence applicable to proceedings in the Court. It is in the following terms:
"(1)In hearing the proceeding, the Mental Health Court is not bound by the rules of evidence unless the court decides it is in the interests of justice that it be bound for the hearing or a part of the hearing.
(2)The court may make the decision on application by a party to the hearing or of its own initiative."
- I note that the Court did not decide that it was in the interests of justice that it be bound by the rules of evidence for the hearing of the appellant's matter.
- Section 405 deals with the issues of onus and standard of proof. It is in the following terms:
"(1) In the proceeding, no party bears the onus of proof of any matter.
(2) Subject to section 268, a matter to be decided by the Mental Health Court must be decided on the balance of probabilities."
- Section 406, s 407 and s 408 of the Act deal with the giving of advice to the Court by an assisting psychiatrist. They are in the following terms:
"406 Assisting psychiatrists’ advice before or during hearing
(1) This section applies to advice given by an assisting psychiatrist to the Mental Health Court–
(a) before the hearing is started; or
(b) during an adjournment of the hearing, other than an adjournment for the court to make its decision.
(2) During the hearing, the court must inform each party of the advice unless the party tells the court that it does not require the information.
407 Assisting psychiatrist’s advice during hearing
Advice given by an assisting psychiatrist to the Mental Health Court during a hearing must be given in a way that can be heard by the parties.
408 Particular assisting psychiatrist’s advice to be stated in reasons for decision
If the Mental Health Court is satisfied advice given by an assisting psychiatrist to the court materially contributed to the court’s decision, the advice must be stated in the court’s reasons for its decision."
The evidence
- In relation to the unlicensed driving, the evidence was that, at 6.09 pm on 20 August 2006, police observed the appellant alighting from the driver's seat of a motor vehicle. He claimed to have a learner's permit which he had left at home. Checks performed by the police later revealed that his learner's permit had expired on 5 June 2003.
- In relation to the armed robbery, the evidence was that the appellant had picked up a taxi later that night from a rank at Goodna and, at the end of the trip, alighted from the cab and demanded that the driver give him all of his money. He brandished a knife and threatened to stab the driver. There was a struggle in the course of which the appellant grabbed the driver's jacket from behind the driver's seat, gave it a brief search and then discarded it. He then grabbed the driver's satchel and mobile phone and ran off.
- Before the Court were reports from three psychiatrists, Dr R Spelta, Dr A Drummond and Dr V Kovacevic. Each of these psychiatrists diagnosed the appellant as suffering from schizophrenia which involved psychotic episodes in which he believed that he was engaged in the pursuit of alien beings. All of these psychiatrists considered that the appellant had no memory of the time of the armed robbery offence. None of these psychiatrists supported a defence of unsoundness of mind in relation to the charge of unlicensed driving.
- As to the armed robbery charge, Dr Spelta and Dr Drummond did not support a defence of unsoundness of mind. In this regard, Dr Spelta considered that there was not sufficient information "to make any comment on any possible relationship between [the appellant's] schizophrenia and the alleged offence." Dr Drummond, who had provided four reports in relation to the appellant, said in his report of 9 October 2006:
"Despite the fact that [the appellant] was clearly suffering from a severe episode of schizophrenia which may have influenced his judgement at the time of his offence, in view of his amnesia for the time of the offence, there is no clear evidence that his disease of the mind caused him to not know that what he was doing was wrong. Given his past history of similar offences, it is possible that the motivations for this offence were not delusionally based, it also remains entirely possible given the intensity of his psychosis at the time that his mental illness could have influenced his judgement to the extent that he either did not know what he was doing or know that what he was doing was wrong. I do not have any evidence that this was the case and consequently cannot give him a mental health defence."
- Dr Kovacevic's report of 8 September 2007 was obtained, it would seem, because of the non-committal scepticism of Dr Spelta and Dr Drummond. Dr Kovacevic obtained information which was not available to Dr Spelta and Dr Drummond. In particular, Dr Kovacevic interviewed the appellant's mother, the appellant's case manager, and a person who saw and spoke to the appellant before the incident with the taxi driver. The appellant gave the following account of this incident to Dr Kovacevic:
"[The appellant] told me that he was woken up from sleep by his mother late in the morning on 20th August 2006. His sister-in-law was taken to hospital where she gave a birth [sic] later that day. [The appellant] went to the hospital on at least two occasions during the same day and briefly visited his sister in law and her baby. He spent [the] best part of the afternoon and early evening sitting in his car outside the hospital. He stated he drove back home around 8 pm, and on his way was stopped by the traffic police, tested for alcohol and given notice to appear because of some problem with his driving licence. He then left the house thinking 'this is the night', which meant that he expected aliens to arrive on Earth before dawn. He then drove to a construction site across the road where he parked his car and then self administered an injection of 'speed' (he had taken no drugs earlier that day). After this point he lost his memory and he has no recollection of the subsequent events. He said he woke up the following morning at his house lying on a lounge sofa. He stayed at home most of the day and ventured out the following evening in search [of] alien landing sites. He said he listened to the radio in his car and again took some amphetamines. He was arrested the following day and taken to [the] watch-house where he was psychiatrically assessed and later admitted to Ipswich Hospital Psychiatric Unit." (emphasis added)
- In his report of 8 September 2007, Dr Kovacevic acknowledged that there was evidence which supported the view that the appellant had not been deprived of the capacity to understand that he ought not do the act at the relevant time, but concluded that the appellant "should have a defence of unsound mind available to him". Dr Kovacevic said:
"As [the appellant] does not have any recollection of the event, there are no certain means to establish what was going on in his mind at the relevant time. During the blackout, the person is awake and conscious, and may be engaged in any type of activity or conversation, therefore, memory blackout itself is not evidence of loss of any relevant legal capacity.
In such circumstances, I was left with the option of attempting to draw inferences about [the appellant's] state of mind at the time of the alleged offence on the basis of what is known about his mental state before and after the incident. What can be established is that he was psychotic immediately before the incident and that he was labouring under a number of paranoid delusions. His judgment and the perception of reality were severely distorted. In such a state I doubt that he was able to form any complex judgments, including judgments about the morality of his actions. There are reports that he was observed walking in the streets in a disorganised state, talking about aliens coming to Earth. This was of sufficient concern to at least one person to call [a] taxi for him to take him home. This indicates that there was very little or no planning or preparation on [the appellant's] part to commit a specific offence of armed robbery.
It is impossible to rule out the possibility that there was a psychotic motive behind his alleged crime. Given the extent of his psychiatric disturbance, the psychotic motive would appear more likely. It can only be speculated about the possible delusional beliefs behind his actions. On this basis, in my opinion, [the appellant] should have a defense [sic] of unsound mind available to him."
- As to whether the appellant's state of mind resulted "to any extent, from intentional intoxication or stupefaction", Dr Kovacevic opined as follows:
"Psychotic illness was first formally diagnosed approximately seven years ago. During 2005/2006, he exhibited psychotic symptoms while in prison custody and was treated by a combination of psychotropic drugs. However, he failed to continue his treatment following his release.
There is a family history of mental disorder indicating a genetic susceptibility to psychosis. There is also a history of early trauma, violent upbringing and parental separation, predisposing him for the development of a psychiatric illness. His functional deterioration during his adolescent years is consistent with the natural progression of schizophrenia.
History of psychotic symptoms predates the onset of illicit substance abuse. Illicit drugs may have been used partly as a coping mechanism or an attempt at self-medicating his psychotic symptoms. The symptoms persisted even at times when [the appellant] was abstinent from illicit substances. Despite complete abstinence from illicit drugs over the past six to eight months, [the appellant] continues to experience low grade psychotic symptoms. His symptoms have been consistently reported and collateral accounts support his self report. This is all suggestive of the primary diagnosis of schizophrenia, rather than drug-induced or drug precipitated psychotic illness.
…
[The appellant] has never denied using amphetamines immediately prior to the incidence of his alleged offending. It is clear that he used substantial amounts of cannabis and amphetamines during several weeks preceding the incident. However, it is my opinion that intoxicating substances, in particular amphetamines did not play a significant role in determining his overall mental state at the time of his alleged offending. This conclusion is based on the following line of reasoning:
- [The appellant's] psychosis pre-dates the onset of his amphetamine abuse. Therefore, amphetamine abuse occurred in the context of schizophrenic illness rather than precipitating the onset of psychosis.
- While in prison custody, and presumably abstinent from drugs, [the appellant] remained psychotic. Following his release from prison [the appellant] continued to exhibit disorganized behavior and to experience paranoid delusions and auditory hallucinations. Collateral observations reported by [the appellant's] mother are consistent with a picture of severe paranoid psychosis. Subsequent amphetamine use did not substantially change the quality and nature of his symptoms and may have even acted at times to reduce his distress and increase his ability to cope with his psychotic experiences. It is therefore my impression that amphetamines did not make his psychosis significantly worse.
- When assessed in a watch-house, [the appellant] was found to be floridly psychotic and was subsequently transferred to an inpatient psychiatric unit. His psychotic symptoms persisted long after his admission despite psychiatric treatment and complete abstinence from drugs. This is in support of the argument that the effect of amphetamines on his psychosis was limited and that he suffered from a psychotic illness independent of intoxicating substances.
- His lack of memory for the alleged offence could be attributed to the effect of amphetamine intoxication. It appears that similar memory blackouts occurred on previous occasions. It is well accepted that claiming a blackout may be an attractive strategy for minimizing legal responsibility for criminal behavior. However, the loss of memory for the event has been consistently reported from the first interview, which adds some credibility to his account. There is also a history of previous episodes of memory loss while intoxicated.
In summary, there is evidence that [the appellant] was psychotic before and after his alleged offence and that his psychosis persisted for a number of months despite psychiatric treatment. Evidence of psychosis prior to his release from custody (where he was free from illicit drugs), and persistence of symptoms after several months in the psychiatric hospital, despite treatment with antipsychotic medications, is suggestive of a disorder independent of illicit substances. In my view, he would have been psychotic around the time of his index offence even without any intoxicating substances in his system. However, amphetamines intoxication may have played [a] part in causing the memory loss for the event in question." (emphasis added)
The course of the hearing
- At the hearing on 17 September 2007, counsel for each of the parties accepted that the evidence before the Court established a defence of unsoundness of mind. In particular, Mr Tate of Counsel, who appeared for the Crown, said:
"… I think the - the issues in this particular case have been clarified to a great degree by the report dated the 8th of September by Dr Kovacevic. Your Honour, the primary issue in this case always was whether intoxication played a role, and certainly that particular issue appears to be well argued from both points of view in that particular report. With the Crown making the concession that the disease itself was sufficient to deprive this man of the relevant capacities, the clear advice from the treating psychiatrists is that a forensic order is appropriate, and that would be the Director's submission. Thank you, your Honour."
- After that submission was made, the Court called upon Dr Wood who said:
"Your Honour, I gave you advice the last time this case was listed, and that advice was that we had not [sic] advised a further examination be made because the information we already had seen from Dr Drummond and from Dr Spelta indicated that it would be very difficult to put forward a case supporting unsoundness of mind unless this man recovered from his amnesia.
We've now been given a report by Dr Kovacevic. I've read that report very carefully. In my opinion there are two issues where he significantly fails to meet the current test for unsoundness in the situation where there has been recent intake of potentially intoxicating substances.
The first one is he does not address the issue of the role of the intoxication and the mental state to any extent. He concludes there it was not significant, and there is a difference because, as I see it, we are prohibited from a finding of unsoundness of mind if an intoxication contributed to any extent to the deprivation.
Secondly, the dense amnesia which Dr Kovacevic concedes is related to the intake, the blackout which is related to the intake of the drug, hasn't recovered. He still has that period of dense amnesia. He is still unable to give any accounting of why he did what he did, and the nature of the offence is not one where he is seen attempting to chase aliens but rather with his holding a knife or threatening with a knife a taxi driver.
I am unable to advise your Honour that the new material really counters - sufficiently counters the material of Dr Spelta and Dr Drummond such that I can advise you that it is safe to make a finding of unsoundness of mind.
If you do consider that the issue is established and he has got a finding of unsoundness of mind, then clearly in the situation a forensic order would be appropriate."
- The Court then called upon Dr Lawrence who said:
"Yes, I must confess that I too had formed a conclusion myself on reading the material that intoxication was a very live and relevant issue in this case and I was not convinced by Dr Kovacevic's report that it was not. He does say in his report that his lack of memory for the alleged offence could be attributed to the effect of the amphetamine intoxication and that he had had similar blackouts in the past and that claiming a blackout may be an attractive strategy for minimising legal responsibility for criminal behaviour, et cetera, and I too found that whilst I would accept that this man may suffer from a psychosis that there was a failure by Dr Kovacevic's to relate the actual psychosis to the offending behaviour, and the nature of the offence was that he was threatening to kill for money at the end of a lengthy taxi journey.
So I would have thought that the - there was considerable evidence to indicate that intoxication was playing a part, bearing in mind that amphetamine - heavy amphetamine use is likely to cause a psychotic condition, and it would certainly aggravate anything that was actually present. So that I would have thought that intoxication was a live issue and that it would have contributed - or the evidence seemed to indicate that it was contributing to an extent in this man. …"
- Counsel for the appellant did not object to the terms in which each of Dr Wood and Dr Lawrence advised the Court. Nor did Counsel for the appellant seek to take issue with the substance of the advice of Dr Wood or Dr Lawrence. Nor did Counsel for the appellant raise any complaint that he was taken by surprise by the advice of Dr Wood or Dr Lawrence or seek to have the decision of the matter delayed so that further information could be obtained from Dr Kovacevic or any other source.
The decision of the Court
- The Court proceeded to make a finding that the appellant was not of unsound mind when the incident involving the taxi driver occurred. Her Honour said relevantly:
"The question of the defendant's mental condition at the relevant time has been referred to this Court. The matter was adjourned when it was previously before the Court so that a further report could be obtained. That report from Dr Kovacevic is now before the Court.
The other medical reports, other than the last report the Court has received, do not support a finding of unsoundness. Dr Kovacevic, however, in his report indicates that he would support a finding of unsoundness.
There are two matters which the assisting psychiatrists have identified as being problematical. The first relates to the question of intoxication. It is raised in the material and Dr Kovacevic appears to accept that it is relevant in relation to the blackouts but maintains that given the symptoms of psychosis which relate to the period prior to the alleged offending and evidence of psychosis subsequently when the defendant was in custody that intoxication may be excluded as playing a role.
I am unable to be satisfied on the material before the Court that intoxication should be excluded but, in addition, I note that Dr Kovacevic records in his report that 'reaching an opinion on the defendant's capacities is very difficult due to the defendant's complete amnesia for the relevant event'.
The doctor goes on to express the view that establishing the exact mental state at the time of committing the act is 'almost an impossible task'. Nevertheless, he opines that the defendant was probably deprived of one of the relevant capacities. This view is at odds with the other clinical opinion before the Court.
In the circumstances, I am unable to be satisfied to the requisite standard that the defendant was of unsound mind at the time of the alleged offences.
I find that the defendant was not of unsound mind."
The arguments on the appeal
Denial of procedural fairness
- The gravamen of the first ground of appeal is that the parties, and the appellant in particular, were taken by surprise by the advice tendered to the Court by Dr Wood and Dr Lawrence, and that because the Court proceeded to deliver its decision immediately, the appellant was denied the opportunity to address the criticisms levelled at Dr Kovacevic's opinion by Drs Wood and Lawrence.
- I must say that, even allowing for the concession made on behalf of the Crown, I have difficulty in accepting that the appellant's Counsel were surprised by the views of the assisting psychiatrists. Dr Kovacevic's opinion itself recognised that there was, to say the least, a real issue as to whether intoxicating substances played a part in any psychotic episode the appellant may have suffered at the time of the armed robbery. In this regard, a close examination of Dr Kovacevic's opinion reveals that it did not exclude the possibility that intentional intoxication was involved, at least "to some extent", in the appellant's state of mind at the time of the incident with the taxi driver.
- It is important to emphasise here that, while s 405(1) of the Act provides that no party bears the onus of proof of any matter, the Court still had to decide on the balance of probabilities under s 405(2) whether the appellant's state of mind at the time of the alleged offence resulted "to any extent" from intoxication. In this regard, it must be noted that whether or not the appellant would have been experiencing a psychotic episode at that time even if he had not taken amphetamines is not the issue posed by s 267(1)(a) and the definition of "unsound mind" in the Act.
- Dr Kovacevic accepted that the appellant's "lack of memory for the alleged offence could be attributed to the effect of amphetamine intoxication." It is, to say the least, difficult to see how it could sensibly be said, in the light of this acknowledgment, that the appellant's state of mind when the offence was committed did not result, to some extent at least, from intentional intoxication.
- On its face then, Dr Kovacevic's opinion does not support the conclusion, on the balance of probabilities, that the appellant's state of mind at the time of the taxi driver incident did not result to any extent from his injection of speed earlier that evening. This difficulty for the appellant was apparent on the face of Dr Kovacevic's report. The observations of Drs Wood and Lawrence served to highlight that difficulty, but it was obvious on the face of Dr Kovacevic's report.
- It is convenient to note here that Mr Moynihan SC, who appeared for the appellant on the appeal with Mr Shepherd of Counsel,[2] criticised Dr Wood's discussion of this aspect of Dr Kovacevic's report. Mr Moynihan said that Dr Wood was plainly wrong to say that Dr Kovacevic had not addressed "the issue of the role of the intoxication and the mental state to any extent." Mr Moynihan pointed to the lengthy passage from Dr Kovacevic's report which I have set out at paragraph [22] above. But as Mr B G Campbell of Counsel, who appeared for the respondent to the appeal,[3] pointed out, the point which Dr Wood was making was not that Dr Kovacevic's opinion on this issue had been insufficiently articulated, but that it had been insufficiently focused upon the issue whether intoxication was an aspect of the appellant's state of mind "to any extent" at the relevant time.
- As to whether the appellant was suffering a psychotic episode at all at the time of the incident, Dr Kovacevic himself acknowledged the difficulty which confronted the appellant on this issue:
"Reaching an opinion on his capacities is very difficult due to defendant's complete amnesia for the relevant event. In the absence of defendant's account of his motivations, beliefs and thinking processes, establishing individual's exact mental state at the time of committing the act is almost an impossible task."
- Dr Kovacevic reasoned to his conclusion in the appellant's favour by drawing "inferences … on the basis of what is known about his mental state before and after the incident." Even without the benefit of the observations of Dr Wood and Dr Lawrence, it should have been readily apparent to all Counsel who appeared at the original hearing that Dr Kovacevic's support for the view that the alleged armed robbery of the taxi driver was an example of the appellant's psychotic pursuit of alien beings was at the extreme margin of Dr Kovacevic's expertise. The appellant's deep amnesia as to the time of the armed robbery was not said to be an aspect of the appellant's mental disease or itself an aspect of a psychotic episode: the appellant had previously been able to report his recollections when he had psychotic episodes. Dr Kovacevic's report did not provide an explanation as to how the appellant's psychotic pursuit of aliens could be seen arguably to be consistent with the Crown's case of robbery of a taxi driver at knife point.
- While the appellant's Counsel at the original hearing may have been lulled into a false sense of comfort by the attitude adopted by Counsel for the Crown, he should have understood, and must be taken to have understood, that the decision as to the appellant's mental state was one for the Court, not Counsel for the Crown, and that there were strong reasons why the Court might question, and, indeed, reject as incorrect, the concession made on behalf of the Crown based on Dr Kovacevic's evidence. He should, at the least, have been prepared for scepticism of the kind exhibited by Dr Spelta and Dr Drummond; and he certainly had no reason to assume that the assisting psychiatrists would not have views of their own which might differ from those of Dr Kovacevic.
- In any event, in my respectful opinion, the appellant's first ground of appeal must be rejected on the footing that the appellant's Counsel, having heard the advice of Dr Wood and Dr Lawrence, which was tendered to the Court in his presence in accordance with the Act, did not suggest that the appellant wished to call Dr Kovacevic to answer the points made by Dr Wood and Dr Lawrence or to call any other evidence or to make any further submissions to the Court. There was no suggestion at all on the appellant's behalf that there was anything further to be said on the appellant's behalf before the Court proceeded to its decision. And there was no reason why the Court should have assumed that Dr Kovacevic or the appellant's Counsel might have had anything further to say in relation to the points made by Dr Wood and Dr Lawrence.
- The entitlement to procedural fairness is concerned with ensuring the opportunity to be heard: it does not encompass an obligation on the part of the decision-maker to insist that the opportunity be availed of. Section 407 of the Act gave the appellant's Counsel the opportunity to be heard further after the assisting psychiatrists had tendered their advice in open court. There was no denial of that opportunity by the Court. The opportunity which was available was simply not taken up by the appellant's Counsel. The course of the hearing which occurred in this case was what was expressly contemplated by s 407 of the Act.
- The appellant sought to rely upon the decision of this Court in Attorney-General of Queensland v Kamali,[4] a decision under the statutory predecessor of the Act, the Mental Health Act 1974 (Qld) ("the 1974 Act"). Under s 28B(2) of the 1974 Act, the relevant tribunal consisted of "a Judge of the Supreme Court who in the exercise of the tribunal's jurisdiction shall be assisted by 2 psychiatrists." Under that legislation, the role of the assisting psychiatrists was akin to that of the assessor contemplated by s 255(2) of the Supreme Court Act 1995 (Qld).[5] It was in this context that, in Attorney-General of Queensland v Kamali, the Court said:
"Of course if the psychiatrists were to inform the judge of a view which might take the parties by surprise, and which the judge felt might be influential in the resolution of the case, then the judge would ordinarily bring that view to the attention of the parties for any further submission before proceeding further."
- The provisions of s 406, s 407 and s 408 of the Act expressly address the mischief adverted to by this Court in Attorney-General of Queensland v Kamali in that they ensure that the parties cannot be surprised by the views of the assisting psychiatrists or the acceptance of those views by the Court. These provisions serve to ensure that the parties have an opportunity to respond to the advice tendered by the assisting psychiatrists to the Court. These provisions obviate the possibility of the kind of problem adverted to in Attorney-General of Queensland v Kamali and in York v The General Medical Assessment Tribunal & Anor.[6]
- In summary, the circumstance that the appellant's Counsel did not take advantage of the opportunity afforded by s 407 to take issue with the advice tendered by the assisting psychiatrists is not apt to characterise the procedure below as unfair to the appellant. This ground of appeal should be rejected.
The function of the assisting psychiatrists
- The appellant's argument on this ground of appeal is that the assisting psychiatrists may legitimately advise the Court only on "clinical issues", and may not give advice that the "Judge could not exclude that the appellant's state of mind resulted to some extent from intentional intoxication, which was one of the ultimate matters of fact for determination by the Court."
- To the extent that the gravamen of the appellant's complaint here is that the Court allowed Dr Wood and Dr Lawrence to give advice which could be said to involve "swearing the issue" or expressing an opinion upon the ultimate issue for determination by the Court, it must be understood that the question is not one to be resolved by a consideration of the rules of evidence: by virtue of s 404 of the Act, those rules have no operation. The real question is whether the reception of the advice which was tendered was in accord with the language of s 389 understood in a context which includes s 404, s 406, s 407 and s 408 of the Act.
- The text of s 389(1)(c)(i) of the Act expressly contemplates that the assisting psychiatrists' function is to "assist the court by advising it on the … significance of clinical evidence". Mr Moynihan SC emphasised that the Court is constituted by the judge alone, and that the assisting psychiatrists have no deliberative role so far as the finding of the Court is concerned. Mr Moynihan was critical of the language used by Dr Wood and Dr Lawrence which was, he said, apt to convey the impression that they had arrogated to themselves a role as decision-maker.
- To the extent that the appellant's complaint is that the language in which Dr Wood and Dr Lawrence expressed their advice may suggest that they saw themselves as performing a role in the actual deliberations of the Court, it may be accepted that the appellant is correct in pointing out that the assisting psychiatrist does not have such a role under the Act. That having been said, however, there was no objection at the hearing to the language used by the assisting psychiatrists to tender their advice to the Court. If objection had been taken, then, no doubt, care would have been taken to ensure that the advice was tendered in terms which more accurately reflect the true role of the assisting psychiatrists under the Act.
- The substance of the advice which was tendered was directed to the significance of the evidence of Dr Kovacevic in that it was to the effect that that evidence could not reliably support the finding sought by the appellant. As I have said, the real question here is to be resolved by reference to the language of s 389 understood in its statutory context. That context is inimical to the appellant's insistence on formal niceties of expression. In terms of the substance of the advice tendered by the assisting psychiatrists, s 389(1)(c)(i) expressly contemplates that this advice will address "the significance of clinical evidence".
- In the Oxford English Dictionary, the word "significance" is defined as "the meaning or import of something; importance; consequence". In the legislative context in which the word is used, it is concerned with the importance or consequence of the clinical evidence for the decision to be made by the Court. "Significance" in this context is necessarily concerned with whether, and the extent to which, the evidence points to a particular decision by the Court. In this regard, it is important to emphasise that what s 389(1)(c)(i) contemplates, in terms of the assistance which the Court is to receive from the assisting psychiatrists, goes beyond a mere reiteration or explanation of "clinical evidence" by each assisting psychiatrist: it encompasses a critique of the "clinical evidence" given by others, and an evaluation of the extent to which that evidence tends to support one or other of the conclusions which the parties seek from the Court.
- In my respectful opinion, the substance of the advice tendered to the Court by Dr Wood and Dr Lawrence was not beyond the scope of s 389(1)(c)(i) of the Act. Accordingly, I would reject the second ground of appeal
The decision was unreasonable and contrary to the evidence
- There may be a question as to whether this ground is available to the appellant having regard to the nature of an appeal to this Court under the Act.[7] Mr Campbell of Counsel for the respondents did not seek to argue that this question should be resolved in the negative. Mr Campbell was content to proceed on the basis that, even if it be assumed that any question as to the nature of the appeal under the Act were to be resolved in the appellant's favour, the appellant's argument cannot be accepted on the merits.
- The appellant's argument was that the evidence of Dr Kovacevic that the appellant was in a state of psychotic delusion when he robbed his victim, and as to the absence of any relationship between any psychosis from which the appellant may have been suffering at the time of the offence and the deliberate consumption of intoxicating substances, was compelling and uncontradicted. That is plainly not the case.
- As I have already explained, Dr Kovacevic's opinion in this regard was less than compelling; and it was directly contradicted by the advice tendered by Dr Wood and Dr Lawrence. In the light of that advice, the Court was entitled to regard Dr Kovacevic's opinion as unconvincing speculation on his part.
- In my respectful opinion, this ground of appeal is not made out.
Conclusion and order
- In my respectful opinion, none of the appellant's grounds of appeal are made out.
- I would order that the appeal be dismissed.
- WHITE J: I agree with the reasons of Keane JA and the order proposed by his Honour.
- DOUGLAS J: I agree with the reasons of Keane JA and the order proposed by his Honour.
Footnotes
[1] Section 27 of the Criminal Code 1899 (Qld) provides:
"Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person's doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist."
[2] Neither Mr Moynihan SC nor Mr Shepherd appeared at the original hearing.
[3] Mr Campbell did not appear at the original hearing.
[4] (1999) 106 A Crim R 269.
[5] (1999) 106 A Crim R 269 at 274 – 275 [12] – [13].
[6] [2003] 2 Qd R 104.
[7] Cf Attorney-General of Queensland v Kamali (1999) 106 A Crim R 269 at 270; Hansen v DPP [2006] QCA 396; McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51 at [3], [34], [74].