R v Dunn[2014] QCA 254

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant, Gary Dunn, was convicted after an eight day trial on 17 June 2013 of intentionally giving false testimony touching a material matter in a judicial proceeding under s 35(1) Crimes Act 1914 (Cth) (count 1) and using fabricated evidence in a judicial proceeding under s 36(b) Crimes Act (count 2).  Both charges were alleged to have occurred on 19 February 2009.  The course of the trial which commenced on Monday, 3 June 2013 was not straight forward.  It was adjourned on Wednesday, 5 June (the third day of the trial) at 10.35 am to enable the appellant to engage new lawyers after his barrister and solicitor were given leave to withdraw.  On Thursday, 6 June (the fourth day of the trial) the appellant was still unrepresented and the trial was adjourned until 10.21 am on the following Tuesday, 11 June (the fifth day of the trial) when the appellant was still unrepresented.  The judge encouraged others to explore ways of obtaining legal aid for the appellant and the trial was adjourned at 4.16 pm until Thursday, 13 June (the sixth day of the trial).  The trial resumed that day at 10.57 am with the appellant represented by his original barrister and a new solicitor who continued to act for the appellant throughout the remainder of the trial.

[2] He has appealed against his convictions on the following grounds which were amended by leave at the appeal hearing:

"1.Exhibit 3 at the Trial of the Appellant was wrongly admitted into evidence.

Particulars

i.Exhibit 3 was unlawfully obtained in circumstances amounting to a contempt of court;

ii.The nature of the unlawfulness should have resulted in the exclusion of Exhibit 3.

2.The dislocation of the trial for a period of eight days while the Appellant was unrepresented caused a miscarriage of justice.

3.There was a miscarriage of justice because there is a real and substantial question as to whether the Appellant was fit to stand trial."

[3] The appellant has also applied to adduce further evidence relevant to all three grounds of appeal.  On 24 April 2014 at the hearing of this appeal, this Court made orders granting the application to adduce further evidence; allowing the appeal; setting aside the guilty verdict; and reserving its decision as to whether to order a retrial or enter a verdict of acquittal.  These are my reasons for joining in those orders and for further ordering a retrial on both counts.

Background

[4] The background to the present appeal includes the following.  In February 2009 the appellant pleaded not guilty to the charge of menacing use of a carriage service under s 474.17 Criminal Code (Cth) and a jury trial commenced.  The charge alleged he made a menacing telephone call on 10 November 2005 to Ms Julie-Anne Weare (now Bunts).  The appellant produced and tendered a tape recording (ex 3 in the present trial) and gave evidence that it was a recording of the alleged menacing telephone call.  If genuine, it exonerated him.  The jury were unable to reach a verdict and were discharged.  On 20 February 2009 the trial judge ordered that "the exhibits be returned", apparently under Criminal Practice Rules 1999 (Qld), r 55(1), and adjourned the trial to a call-over on 6 April 2009.

[5] The tape was held in the criminal registry of the Cairns District Court pending its return to the appellant.  On 24 February 2009 the Australian Federal Police (AFP) seized the tape under a warrant issued pursuant to s 3E(1) Crimes Act.  They arranged for the tape to be examined by an expert forensic science examiner, Mr David Ringrose.  On 13 May 2009 the Commonwealth Director of Public Prosecutions (CDPP) endorsed the indictment that the Crown would not proceed further on it.

[6] The appellant was subsequently charged with the present offences.  On 25 February 2013 in a pretrial hearing under s 590AA Criminal Code 1899 (Qld), the appellant objected to the admissibility of the tape, contending that the AFP's seizure of it from the Cairns District Court was unlawful.  It represented an improper interference by federal authorities with the proper functioning of the Cairns District Court and was also a contempt of court.  Interference with judicial proceedings, the appellant's counsel argued, included the continuation of a trial during adjournments.  As the tape was obtained unlawfully, the pretrial judge should exclude it in the exercise of his discretion.  The original trial judge had ordered that the exhibits be returned to their owners, but the AFP seized the tape prior to the entering of the nolle prosequi so that the trial was continuing when they seized it.

[7] The pretrial judge refused the appellant's application as the seizing of the tape under the warrant was not an interference, let alone a substantial interference, in the exercise of the functions of the court.  Once the original trial judge ordered that the exhibits be returned to those who had tendered them, the tape which was then held by the registry was no longer in the possession of the court.

[8] At the trial the subject of this appeal the appellant made the following formal admissions.[1]

"1.Mr DUNN was the accused in a criminal trial held in Cairns District Court on 19 and 20 February 2009 regarding an offence that on the tenth day of November 2005 at Atherton in the State of Queensland GARY DUNN used a carriage service, namely a telecommunications landline, in such a way that reasonable persons would regard that use as being menacing, contrary to section 474.17 Criminal Code (Commonwealth). Mr DUNN was not convicted of this offence.

2.The trial on 19 February 2009 concerned a phone call from Mr DUNN to Julianne WEARE on 10 November 2005.

3.Mr DUNN telephoned on 10 November 2005 from Francis  FORD’s number 07- 40979298 at 4 Wyndham Creek Road Mt Garnet to Julianne WEARE at Northern Employment and Training Organisation (NEATO) at Atherton number 07-40917644 as detailed in the Telstra records marked 00297493.TXT.

4.Mr DUNN knew at the time that the trial on 19 February 2009 was a judicial proceeding in a court exercising federal jurisdiction.

5.Mr DUNN gave testimony touching a matter, material in that proceeding, on 19 February 2009, as referred to in the Prosecution Particulars for charge 1 contrary to section 35 of the Crimes Act 1914 (Cth) paragraphs 3 to 7 and which he knew was material.

6.Mr DUNN knew that the testimony he gave referred to in point 5 above was material.

7.Mr DUNN made use of a cassette tape in that proceeding on 19 February 2009 by allowing it to be played and having it admitted into evidence.

8.Audio tapes and players/recorders were seized by police on 28 August 2009 from the premises at 4 Wyndham Creek Road, Mt Garnet referred to as items 2 to 11 in the Analysis Report of Mr David RINGROSE dated 18 March 2011.

9.Between at least 9 November 2005 and 29 August 2009 the property at 4 Wyndham Creek Road Mt Garnet was owned by Ms Francis FORD and Mr DUNN resided there during that period."

[9] As a result, the only issues at trial were whether the prosecution had proved beyond reasonable doubt that the tape, ex 3, was fabricated and whether the appellant knew it was fabricated.

[10] Mr Ringrose testified that there were interruptions to the continuity of ex 3 made by stopping, starting or pausing the recording machine.  In three distinct sections ex 3 displayed different characteristics.  It was not of a single phone conversation and was created with more than one recorder.  He concluded that the words heard on ex 3 originated from three different sources.  The examiner compared ex 3 to other tapes later seized by the AFP from the appellant's residence which contained audio similar to that on ex 3.  Mr Ringrose opined that one tape seized from the appellant's residence was an earlier generation of ex 3 and contained three distinct parts, two of which were copied from other tapes seized from the appellant's home.

[11] Ms Bunts (formerly Weare) gave evidence that ex 3 did not record the conversation she had with the appellant on 10 November 2005.

[12] The appellant gave evidence denying that he threatened Ms Bunts.  He recorded their phone conversation. He did not fabricate the tape.  Any editing of the tape was to excise long gaps in the recording.  His carer, Ms Frances Ford, gave evidence that she was present when the appellant phoned Ms Bunts and he did not speak menacingly to her.  He routinely tape-recorded such conversations because of his poor memory.

The admissibility of the tape recording

[13] It is logical to commence with a discussion of the first ground of appeal, whether the tape was wrongly admitted into evidence.

The appellant's contentions

[14] The appellant no longer contended that the AFP's actions discriminated against or impeded the government of Queensland in carrying out essential judicial functions.  He submitted only that the AFP's execution of the search warrant was a contempt of court and therefore unlawful so that the judge should have excluded it.

[15] The appellant contended that an act or omission that had a tendency to impermissibly interfere with or undermine the authority, performance or dignity of courts of justice was a contempt.  The AFP, a non-party to the criminal proceeding against the appellant, seized an exhibit from the custody of the court under a search warrant at a time when the proceeding to which the exhibit related was ongoing and the trial was continuing.  The exhibit was a piece of critical defence evidence.  Its seizure raised issues about the integrity of the exhibit and its non-availability to the appellant.  The judge's order that the exhibits be returned implied that they would be returned to those who tendered them, that is, the tape was to be returned to the appellant.  That order did not relinquish the court's control of the exhibit but was a limited permission to give the exhibit to the appellant or his lawyers.  At the time the AFP seized the tape it was in the possession of the court even though it was in the custody of the registry.

[16] Had the CDPP applied to the court for the release of the exhibit to the AFP, the court could have given proper consideration to how to maintain the integrity of the exhibit prior to any retrial.  But instead, the AFP unlawfully obtained the tape.  In light of questions of public policy, the relatively minor nature of the alleged offending, the appellant's precarious mental state and the age of the charges, this Court would exercise its discretion to exclude the tape from evidence in this case.

Conclusion on this ground of appeal

[17] Under s 3E(1) Crimes Act an issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that there is any evidential material at the premises relevant to a Commonwealth offence.  It is not suggested that there were no reasonable grounds for such a suspicion.  The term "premises" is widely defined as including a place.[2]

[18] In Jacobsen v Rogers,[3] there was a challenge to the lawfulness of a search warrant issued in respect of a State government department and the seizure of documents connected with the investigation of Commonwealth offences.  The provision allowing for the issue of the warrant was in terms comparable to s 3E(1) in that it authorised a named constable to enter premises and to seize things with respect to which an offence against a Commonwealth law was suspected on reasonable grounds to have been committed.  The plurality (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) held that the legislature in enacting that provision did not intend to restrict the power of search and seizure to premises which were not Crown premises.  That would be inconsistent with the main purpose for which the provision had been enacted.  It did not matter that the provision did not specifically state that it bound the Crown.  Its enactment sufficiently exhibited an intention to rebut any presumption that it was not intended to bind the Crown in the absence of express provision.  Such a presumption must have less strength than in other circumstances, having regard to the Crown's interest in the administration of justice.[4]  A warrant could be granted authorising the search of a State government department and the seizure of documents connected with the investigation of Commonwealth offences, subject to public interest immunity which had no present application.[5]

[19] The decision in Jacobsen v Rogers supports the conclusion that s 3E(1) allows for the issue of a warrant to search premises of the executive arm of a State government.  Nothing said by their Honours suggests that their conclusion would have been different in respect of a warrant to search premises of the judicial arm of a State government.

[20] The appellant's 2009 trial in which the appellant first tendered the tape as an exhibit had been adjourned; it was ongoing and was still before the court.  The judge had ordered that the tape be returned, impliedly to the appellant who tendered it.  In the meantime, it was held in the custody and possession of the court registry.  It may be a moot point as to whether a Queensland court registry is part of the judicial or the executive arm of government.  Queensland staff are employed by the Department of Justice and Attorney-General under the control of the Minister for Justice and Attorney-General and in that sense are part of the executive arm of Queensland government.  But many registry staff are court officers, sometimes carrying out judicial functions, and the registry premises are physically within the court building.  The better view is that, at least for present purposes, the Queensland court registry premises are part of the judicial arm of government.  It must be hoped that instances where warrants are requested for the search of judicial premises will be rare. But nothing in Jacobsen v Rogers or in the terms of s 3E(1) suggests that s 3E(1) could not authorise the issue of a warrant for the seizure of evidence reasonably suspected of being relevant to a Commonwealth offence from premises of the judicial arm of government.

[21] Even so, as counsel for the respondent rightly conceded, the search and seizure under s 3E(1) will not be lawful if it is a contempt of court.  In Witham v Holloway[6] McHugh J explained that

"Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings.  Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process.  Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. … disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious.  Defiance of the court's order renders criminal what would be otherwise civil contempt [citations omitted]."[7]

[22] Those examples of criminal contempt were not intended to be a comprehensive list of every possible type of criminal contempt.  And not every interference with the court's authority will be a contempt; the interference must be unreasonable.  In 1738 in Cole v Hawkins,[8] the service of a process on the defendant on the steps of the court house as he made his way to his hearing was held to be a "great contempt".  But the service of a process in the court precinct will not be a contempt if it is not an unreasonable interference with the administration of justice.  There are many recent examples where such the service of process has been held not to be a contempt: see R v Jones; Ex parte McVittie;[9] Baldry v Jackson;[10] Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia[11] and Matheson v Scottish Pacific Business Finance Pty Ltd.[12]

[23] The conduct of the AFP in executing the warrant and seizing the tape from the registry did not fall within any of the categories of criminal contempt listed by McHugh J.  In seizing the tape before it was returned to the appellant under a warrant, the AFP was not acting in defiance of the court's order as the seizure was authorised under s 3E(1).  It is true that the 2009 trial in which the exhibit was tendered had been adjourned, not completed; the exhibit was ordered to be returned to the appellant; and pending its return or re-tender on a retrial, it was in the custody of the registry, a part of the judicial arm of government.  Significantly, there was no evidence that the AFP had seized the tape in order to destroy it, compromise its integrity or to otherwise interfere with the administration of justice.  Rather, the evidence suggested that the AFP seized the tape to assist the administration of justice by investigating through expert examination the reasonable possibility that the appellant had fabricated material evidence in his 2009 trial.

[24] There are sound reasons why policing authorities should be circumspect before applying for warrants to search for and seize property on court premises.  Circumstances can be envisaged where this would be a contempt.  But the AFP's seizure of the tape in this case did not undermine the authority, performance and dignity of the court.  It follows that as the AFP did not obtain the tape unlawfully, it was rightly admitted into evidence in the present time.  The discretionary question as to whether to exclude it does not arise.  This ground of appeal is not made out.

The application to adduce further evidence

[25] As I have noted, this Court has granted the appellant's application to adduce further evidence.  The relevant portions of that evidence are as follows.

[26] The appellant read three affidavits from his solicitor, Mr Anderson.  The appellant's affairs were in the hands of the Adult Guardian who provided relevant material to Mr Anderson.  Annexed to Mr Anderson's affidavits were communications and reports from others, including psychiatrists, Dr Morris, Dr Kovacevic, Dr Andrew Aboud and Dr Ashwani Garg; Ms Kirsty Phillips, senior legal officer in the office of the Adult Guardian; and psychologists, Ms Alemka Russell and Dr Shelley Keane.  Dr Aboud and Dr Keane additionally gave oral evidence and were cross-examined at the appeal hearing.

Dr Morris' report

[27] Psychiatrist Dr Adrian J Morris examined the appellant for one hour for the purposes of a medico-legal report on 3 October 2012, about eight months before the present trial.  He found the appellant difficult to examine.  It was unclear whether he was suffering from a mental disease because of the lack of information available.  His long term memory appeared sound but his working (short-term) memory was possibly impaired.  As he lacked collateral information, Dr Morris could not say whether the appellant suffered from a delusional disorder.  His accident and subsequent injuries in the 1980s or 1990s created mental difficulties for him.  These included attention, concentration and registration and were consistent with developing symptoms of an organic illness involving delusional or persecutory themes related to frontal lobe damage.

[28] Dr Morris considered that on the available evidence the appellant appeared to be of sound mind.  After referring to the test in R v Presser,[13] Dr Morris stated that on 3 October 2012 the appellant was able to understand what he was charged with, to plead to the charge and exercise his right of challenge.  He clearly understood the nature of the proceedings and the procedures of the court.  He appeared however to be dismayed by his view of the alleged corruptness of the legal system and had little respect for it which was why he was sometimes disrespectful and unhelpful when questioned or spoken to by a judge or others.  Overall, he complied with the court's requests and answered questions satisfactorily.  He was fit for trial and would not be adversely affected by participating in a trial.

[29] Dr Morris considered the appellant had some attention deficits with an impaired ability to easily register new information but there was no overt major cognitive deficit.  The tests Dr Morris conducted, however, were of limited value because of time constraints and available information.

[30] Dr Morris considered that the appellant should be assessed with his full past medical and psychiatric notes and neuro-psychological tests.  Due to the uncertainty of the appellant's claims and the lack of collateral information, Dr Morris was unable to state what treatment the appellant needed and was uncertain whether he had a delusional or psychotic disorder.  If he did suffer from a mental illness, it was of a discrete nature such as delusional disorder with paranoid persecutory flavour or a psychotic illness with a likely organic origin, again of a persecutory nature.  Without further information, Dr Morris was unable to categorically state whether the appellant ever had suffered or presently was suffering from a mental illness.

Ms Russell's psychological testing

[31] Psychologist Alemka Russell made a Mental Health Services progress note on 31 October 2013[14] (almost five months after the present trial) in respect of the appellant whilst he was an in-patient in the Mental Health Unit.  She performed tests to obtain a base line of his cognition.  He completed the following neuro-cognitive screeners: the RBANS, a neuro-psychological assessment of immediate and delayed memory, attention, language and visuospatial abilities; Trails A and B, a measure of processing speed, cognitive flexibility and working memory; and Rey's Fifteen-item Test, a test of effort.

[32] He repeatedly complained of poor concentration, poor attention, difficulties with presented tasks and became very frustrated and anxious with the testing procedure.  Based on his behaviour and test performances, it appeared that he was working to the best of his current ability.  His overall score in the RBANS was in the extremely low range and at the first percentile on measures of attention.  He performed on the average range on measures of language and visuospatial abilities.  Further assessment of his attention and processing speed was conducted using the Trail Making Test in which he performed very slowly.  He completed Trail A with no mistakes, scoring in the tenth percentile.  On Trail B he became very confused and was unable to complete it.  He was unable to hold opposing sets of information to correctly perform the task which indicated poor cognitive flexibility and poor working memory.  He showed a very flat and impaired profile on immediate memory with very poor learning of words that were presented to him from a ten word list over four trails, scoring in the first percentile.  On the first recall sub-test measuring delayed memory he was unable to recall words that were presented to him approximately 15 minutes earlier.  This indicated problems with word learning and retrieval.  On the list recognition sub-test, he was able to identify 17 of 20 words correctly.  This demonstrated that when presented with word cues he performed better.

[33] In summary, Ms Russell noted that the appellant performed well below expectation on memory tests and displayed impaired attention and processing skills together with poor working memory abilities.  His executive functioning, together with memory, indicated functioning impairment at levels below those of his peers.  This suggested he may have difficulties with problem-solving, particularly if the tasks were at a moderate or advanced level of difficulty.  He would have difficulties with planning and organisation skills given his poor memory and processing.  He became easily overloaded with information which resulted in increased levels of frustration and anxiety which may result in angry, aggressive or impulsive behaviours.

Dr Garg's report

[34] Psychiatrist Dr Ashwani Garg reported on the appellant on 29 March 2014 (almost 10 months after the present trial) to clarify his psychiatric diagnosis and treatment needs.  The appellant was doing well before 1990 when he sustained an acquired brain injury (ABI) and his functioning deteriorated markedly.  He was presently suffering from confabulations or delusions; significant impairment of immediate and short term memory; disorientation, impairment of judgment and decision-making capacity and distortion of reality; dyscalculia[15] and word finding difficulties.  He has suffered these symptoms for many years, possibly exacerbated with the stress of legal proceedings against him.

[35] In Dr Garg's opinion the appellant had a major neuro-cognitive disorder due to traumatic brain injury with clinical features suggestive of confabulation or delusional disorder.  He should be commenced on an involuntary treatment under the Mental Health Act 2000 (Qld) and would benefit from a review by a neurologist to evaluate treatable causes of confabulation and memory impairment.  He failed to present his case well in court and misinterpreted most of the court proceedings, possibly due to his inability to understand complex court proceedings.  Although Dr Garg did not address the matters set out in Presser, he expressed the opinion that the appellant was unfit for trial.

Dr Sadasivan's report

[36] Dr Asha Sadasivan, consultant psychiatrist at the Gold Coast University Hospital, provided the following information in a report dated 1 April 2014 (about 10 months after the present trial).  He did not interview the appellant but provided this summary of the appellant's care at the Gold Coast Hospital and Health Service.  A cognitive screen was undertaken on 5 February 2014.  In a clinical interview the appellant's short term memory loss was very evident and he was confabulating to fill gaps in his history.  As to his cognitive ability, his overall score on the RBANS was in the extremely low range, and in measures of attention at the first percentile.  In Dr Sadasivan's opinion the appellant was suffering from an ABI with memory impairment and significant frontal lobe deficits.  He was also suffering from paranoid personality disorder secondary to the traumatic brain injury.  Similar conclusions were reached by the Mental Health team at the Cairns Base Hospital.  The appellant was referred to the Adult Guardian as he lacked capacity to make decisions regarding legal and other matters.

The evidence of Dr Aboud

[37] Dr Andrew Aboud is a consultant forensic psychiatrist and the Clinical Director of Queensland's Prison and Mental Health Service.  He first met the appellant in December 2013 (about six months after the present trial).  He had been the appellant's treating psychiatrist since that time, seeing him on a weekly basis but for a four week period when he was an in-patient at the Gold Coast Mental Health Unit (GCMHU) at Dr Aboud's request.  During those four weeks the appellant was under the treating team at the GCMHU.

[38] In his summary report dated 20 April 2014, he opined that the appellant's mental health problems stemmed from a serious head injury sustained in 1990 which resulted in an ABI.  Prior to this injury he did not have any psychiatric disorder.  He has since manifested a range of broad cognitive deficits, specific frontal lobe deficits and associated delusional paranoid thinking.  Delusional beliefs are a key feature of the mental illness process known as psychosis.  The appellant suffered from a psychotic disorder originally caused by his ABI and met the criteria for the diagnosis Organic Psychotic Disorder.  He exhibited the classic features of paranoid psychosis which can emerge after an ABI.  The effect of the appellant's ABI was that when he did not understand or remember things he became paranoid, thinking that people were against him.  He subconsciously filled in the gaps in his memory and understanding with a paranoid persecutory belief system of delusional intensity.  Virtually everybody he came in contact with ran the risk of becoming incorporated into his paranoid belief system, including his lawyers, the prosecutor, the police, the trial judge and, since his incarceration, prison officers and health staff.  He had no control over his paranoid beliefs.  There was a possibility that with appropriate psychotropic medication he may develop the capacity to change, but for the time being that was uncertain as was his prognosis given the organic (ABI) basis for his disorder.

[39] The appellant lacked insight and was adamant that he was not unwell.  He threatened to sue those who suggested he may be unwell.  This meant he could only be treated under an involuntary treatment order (ITO).  The Prison Mental Health Service could not make an ITO.  The appellant needed to be transferred to a psychiatric hospital where an ITO could be made.  His cognitive impairments were of moderate severity.  At first meeting he did not appear to be significantly damaged but the longer the dealings with him, the more obvious was his impairment.  By the end of a two hour interview his impairment was "really quite gross".[16]  As he became more tired, he was less able to compensate for his defects.

[40] As the appellant's ABI occurred 24 years ago, his cognitive deficits were relatively fixed and unlikely to improve.  His carer, Ms Frances Ford, had assisted him to manage his cognitive problems over many years.  He may respond to psychological and social approaches to psychiatric treatment to support him and to negate key stressors which would provoke exacerbation or manifestation of paranoia.  Since his trial in June 2013,  his cognitive difficulties have remained similar but his level of paranoia and mental illness have worsened as he has become increasingly distressed, perplexed and confused about why he was in prison and what was happening.  He found the prison environment particularly stressful.

[41] In Dr Aboud's opinion the appellant was suffering from an organic psychotic disorder at the time of his trial in June 2013.  Other medical reports including that of Dr Adrian Morris suggested that this disorder was present many years before June 2013.  Dr Kovacevic on 28 November 2013 considered the appellant suffered from a psychosis secondary to an ABI and lacked capacity to instruct counsel or stand trial.  Dr Aboud considered that the appellant lacked the capacity to meaningfully participate in the legal proceedings because of his cognitive deficits and his paranoid thinking, adding:

"His cognitive deficits significantly impact on his ability to properly register, accurately remember and fully comprehend what is being said in court or in discussion with his legal counsel.  He would not be able to fully understand and follow the evidence and he would not be able to fully understand and follow the process."

[42] Dr Aboud stated that he did "not believe [the appellant] currently has the capacity to properly instruct his lawyer(s) or … the capacity to properly understand the nature of the charges against him."  Dr Aboud considered the appellant was neither fit to plead nor fit for trial in June 2013 and that he remained unable to meaningfully participate in legal proceedings.

[43] In his evidence in this Court, Dr Aboud affirmed the contents of that report and his opinion that the appellant did not have the capacity to follow the course of the trial proceeding; to understand the substantial effect of evidence given; to properly instruct counsel or lawyers; or to make a defence in answer to the charge.  It remained his opinion that the appellant was unfit to stand trial in June last year.  If his problems were solely cognitive, it would be possible for him to be made fit for trial with significant effort by the presiding judge, for example, by using simple language and taking frequent breaks to accommodate his attention and concentration problems and resulting tiredness.  He would need frequent reminders of what had happened and explanations as to the consequences.  But once his paranoid delusional system was superimposed on his cognitive deficits, it would be impossible for him to be made fit to stand trial because he had incorporated the judge and his lawyers into his paranoid belief system.

[44] In cross-examination he agreed that in forming his opinion he had not considered the transcript of the appellant's trial in June 2013.  He agreed that this transcript was relevant but he did not consider it was the best evidence as to the appellant's fitness for trial.  Counsel for the respondent took Dr Aboud to portions of the transcript where the appellant was self-represented[17] and suggested the appellant's recorded exchange with the judge demonstrated the appellant's ability to appreciate an important issue in the trial, to remember that issue and to respond to it.  Dr Aboud stated that, whilst that was the superficial effect of the transcript, in reality it did not show that the appellant was fit to instruct counsel, only that he was determined to prove a point.

[45] Dr Aboud agreed that on 17 January 2014 he emailed that the appellant may lack the capacity to instruct a lawyer.  He used the term "may" to express himself respectfully but in any case his view about the appellant's unfitness for trial had become firmer over time.

[46] Dr Aboud agreed that in a letter to the appellant's solicitors on 31 March 2014 he stated that the appellant's cognitive dysfunction and associated mental health difficulties limited his ability to properly engage in the legal process.  He explained that, as the appellant's treating psychiatrist, his role was not to decide the appellant's fitness to plead.  This should be done by an independent psychiatrist.  As this had now been done, he was able to be more categorical in giving evidence in court.  He agreed that his opinion had become more definite.  He again explained that the Prison Mental Health Service was not a medico-legal report writing service; its priority was patient care.  On this occasion he was contacted by the District Court and asked as a treating psychiatrist to prepare a report for the sentencing judge.  He responded with his report of 20 April 2014 which contained his independent opinion.

[47] He agreed that in his reference to Dr Morris' report of 3 October 2012, he did not note that Dr Morris assessed the appellant as fit for trial.  Dr Aboud explained that Dr Morris' report was independently available to the court.  He did not think the November 2013 report of psychiatrist Dr Kovacevic, who opined that the appellant was unfit for trial, would be available to the court.  That was why Dr Aboud referred more fully to it.  He agreed he had been selective in what he put in his report as he wished to highlight the fact that both Dr Kovacevic and Dr Morris found evidence of mental illness.  Dr Aboud was confident of the correctness of his opinion.  He did not agree with Dr Morris' opinion that the appellant was fit for trial in December 2013, but he respected that opinion which was worthy of consideration.

[48] He agreed that psychiatric registrar, Dr Fang, at the GCMHU did not identify any mental illness in the appellant but Dr Aboud was confident this was an error.  When he read the appellant's discharge summary from the GCMHU he noted that the acting clinical director, Dr Chand, referred to the appellant having circumscribed delusions related to an ABI.  As a result Dr Aboud contacted the director of Mental Health Services in the Gold Coast area and stated his dissatisfaction with the quality of the GCMHU discharge summary because the team had identified in the appellant features of a psychotic illness but had concluded that he did not have a mental illness.  The GCMHU conducted a trial of a sub-therapeutic dose of drugs for two weeks which was a sub-optimal period.  Dr Aboud had also been informed that the appellant did not believe he needed medication and had not taken it.  The director of the GCMHU agreed that there was enough information to place the appellant on an ITO and to treat him for mental illness.  Dr Aboud was now waiting for the opportunity to do that.

[49] In re-examination, Dr Aboud was again taken to the passage of the transcript referred to by counsel for the respondent.[18]  Dr Aboud explained that a superficial look at the transcript suggested the appellant was suitably engaged with the trial. But once his difficulties and his paranoid beliefs that the police and others were involved in a drug related conspiracy were understood, the transcript was consistent with the appellant's paranoid belief system.

The evidence of Dr Keane

[50] Clinical neuro-psychologist, Dr Shelley Keane, cautioned that she had not met with the appellant nor seen medical records relating to his reported 1990 accident in preparing her April 2014 report (10 months after the present trial).  She perused material including reports from Dr Aboud, Ms Russell, and specified pages of the transcript of the appellant's trial.[19]  She noted that the appellant's overall score on the RBANS test was in the extremely low range at the first percentile; 99 per cent of people performed better than him on memory ability.  Ms Russell recorded that the appellant seemed to be working to the best of his ability so that the results appeared to be a true representation of his current ability.

[51] From the information provided, Dr Keane noted that the appellant apparently sustained an ABI in 1990 with consequent personality change, cognitive deficits and a lack of insight into his problems.  He had significant cognitive deficits, memory and executive functioning deficits (the ability to utilise intellect and to successfully navigate through daily life).  Loss of executive functioning can have a devastating impact on behaviour and the ability to interact with others appropriately.  He seemed to lack insight into the disordered nature of his beliefs.  This was common in the context of an ABI involving memory and executive functioning deficits.  The combination of his cognitive deficits and psychotic disorder would prevent him from conducting his trial independently.  Even with the assistance of counsel, his fitness for trial was questionable.  His combined deficits indicated that he would have difficulty pleading to the charge and letting his counsel and the court know his version of the facts.  The combination of his cognitive deficits and psychotic disorder deprived him of the capacity to be able to decide what defence he could rely on.  His condition would be chronic since 1990 and would have existed at the time of the present trial.  His already severe impaired cognitive function would be further reduced by stress.  Dr Keane cited passages of the trial transcript which she considered supported her opinions.

[52] Dr Keane also gave evidence at the hearing.  She explained that the RBANS test results did not mean the appellant forgot everything, but he did forget a lot.  He was unable to retrieve much of his memory.  When a person with such executive functioning problems needs to remember something their brain will fill the gap in memory.  This was not lying, but confabulation.  The appellant knew he had a brain injury but did not have a good appreciation of its impact on his cognitive functioning.  Once he was convinced of something, he could not be persuaded to the contrary and was very rigid.  His ABI would have been stable since 1992.

[53] As to the eight day adjournment in the trial when he was unrepresented, Dr Keane stated that his ability to remember what went on before the adjournment would have been unreliable and distorted.  His memory would have been further reduced by anxiety and stress.

[54] In cross-examination Dr Keane agreed that the appellant at his trial pleaded not guilty and did understand the difference between guilty and not guilty.  Counsel for the respondent suggested that the appellant in his evidence at trial gave responsive answers when questioned by his barrister so that it was not possible to conclude that his capacity to advance his defence was obliterated.  Dr Keane explained that the appellant did not have the cognitive capacity to discriminate between what was real and what was not real; between what had happened to him and what he thought had happened to him.  The transcript of his evidence showed this.  He went from one thought to another thought without any coherent whole.  For that reason, she considered that he did not have the ability to properly inform his counsel of his defence.  The appellant had memories but his ABI and its associated memory impairment and executive functioning deficit combined with psychotic illness deprived him of the capacity to give his version of past events coherently.  He did not have real memories; he had distorted memories.  He would produce a version of a past event but it was not a real version.  He may remember and give accurate parts of memory but he was unable to provide a reliable, coherent, whole memory of past events.

The appellant's fitness to stand trial

[55] Although the further evidence led in the appeal was relevant to both grounds 2 and 3, it is logical to deal first with ground 3 because if the appellant is successful on that ground it will be unnecessary to consider ground 2.

The respondent's contentions

[56] The respondent emphasised that, consistent with R v Presser,[20] whether a person was fit to be tried requires consideration to be given to whether he had the ability to understand the nature of the charge; to plead to it and exercise a right of challenge; to understand the nature of the proceedings, that is, that it is an inquiry into whether the accused committed the offence charged; to follow the course of the proceedings; to understand the substantial effect of any evidence given in support of the charge; and to make a defence or answer to the charge.  If represented by counsel, as the appellant was at all material times, an accused needs to be able to give counsel instructions and let counsel know his version of the facts.  It is not necessary for the accused to have sufficient capacity to make an able defence: Kesavarajah v The Queen.[21]

[57] The respondent submitted that labouring under delusions; having a disorder causing an accused to conduct a defence which was objectively contrary to his best interests; or having a disorder that disrupts the trial or prevents an amicable, trusting relationship with the accused's lawyers does not render an accused unfit for trial: Eastman v The Queen.[22]  In R v Erskine,[23] the respondent's counsel emphasised, the Lord Chief Justice stated:

"Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of the trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead."

[58] Similarly, the respondent submitted, in Lawler v The Queen[24] O'Regan P[25] emphasised the importance of having regard to the contemporaneous evidence in considering the question of fitness for trial some years after an appellant's convictions.  The lack of contemporaneous evidence in this case made it impossible to say the appellant was not fit to plead and stand trial in June 2013.

[59] The respondent contended that considerable emphasis should be placed on the record of trial: Eastman[26] and R v Ogawa.[27]  The appellant entered pleas of not guilty without any apparent confusion or equivocation.  He gave evidence that he did not intentionally give false testimony in the 2009 trial and did not fabricate the tape.  On the first two days of trial he was represented by his barrister instructed by a solicitor.  His barrister exercised the right of challenging potential jurors on the appellant's behalf.  His barrister did not indicate to the trial judge that he was concerned about the appellant or that there were any difficulties with the trial proceeding.  A key Crown witness, Ms Bunts, gave evidence that on 10 November 2005 at the Atherton office of NETO employment services she answered a telephone call and recognised the voice of the appellant whom she knew.  He threatened her.  Her voice was not the voice on the tape recording played at the appellant's 2009 trial, ex 3 in the trial the subject of this appeal.  The appellant's barrister put to Ms Bunts that the recording accurately reflected the telephone call and cross-examined her in other ways which made clear that he was acting on the appellant's instructions.  The respondent's counsel also emphasised other aspects of defence counsel's cross-examination of prosecution witnesses which demonstrated he was acting on instructions.

[60] Although the prosecution closed its case when the appellant was unrepresented, the prosecution adduced no evidence after the appellant's lawyers were given leave to withdraw.  His original barrister returned to act for him before the judge asked whether he would give or call evidence, and represented him when he gave and called evidence and at verdict and sentence.  The appellant gave evidence to the effect that he tape-recorded his telephone conversation with Ms Bunts as was his usual practice and then put the tape aside.  He made a copy of it and did not know what became of the original recording.  He thought he gave a copy to a woman who worked at the Atherton police station to give to police officer Howard.  The appellant edited the tape which he had not made for court because he did things like that all the time so that someone listening to it would not have to sit through the long pauses in the conversation.  He did not make the tape to mislead the court.  It was only when his barrister in the 2009 trial told him that it could be used in court that he produced it for court.  He made a copy and edited out the gap in the conversation.  He began to make another copy but something went wrong; perhaps the batteries in the machine went flat.  He did not lie at his 2009 trial and the tape was not a compilation of conversations recorded at different times.  His answers during a lengthy cross-examination were responsive and broadly consistent with his evidence in chief.  This evidence, the respondent contended, illustrated that the appellant understood what was alleged against him and was able to answer it.  The key aspects of the appellant's evidence were supported by the evidence of his carer, Frances Ford, who confirmed that he had not spoken harshly or menacingly to Ms Bunts and that he tape-recorded all telephone calls because of his memory problems.  This showed he was able to give his counsel cogent instructions as to the conduct of the trial.

[61] As to the expert evidence called in the appeal, the respondent emphasised that Dr Sadasivan did not examine or treat the appellant.  Dr Aboud's opinion as to the appellant's fitness to plead and stand trial should be given no weight as he did not read the trial transcript.  Had he done so, he would have seen the appellant made as complete an answer as could have been made to the allegations against him.  Eight months before the trial, psychiatrist Dr Morris formed the view that the appellant was fit to plead.  The court could afford no weight to Dr Garg's opinion because he directed himself to the incorrect test.  Dr Keane's evidence that the appellant was incapable of understanding the proceedings of the trial and be able to give a proper defence should not be accepted.

Conclusion on this ground of appeal

[62] The test for admitting further evidence on an appeal where the issue is the appellant's fitness to stand trial differs from the usual test in an appeal against conviction.  The further evidence should be admitted if it is required to avoid a miscarriage of justice.[28]  There would be a miscarriage of justice in this case if the appellant has been tried and convicted in circumstances where he was unfit to stand trial.

[63] In determining this ground of appeal this Court should consider both the evidence at and the transcript of the trial and also the further evidence led in the appeal.  Under s 668E(1) Criminal Code, this Court is bound to allow the appeal and set aside the convictions if there has been a miscarriage of justice.  As Hayne J explained in Eastman,[29] there will be a miscarriage of justice if an accused has gone to trial and been convicted when he may not have been fit to plead and stand trial.  If there is a real and substantial question to be considered about an accused's fitness to plead, there is a miscarriage of justice.  The question is not whether the appellate court is persuaded the accused was not fit to plead, but whether there was a question as to the accused's fitness.  Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred so that the question of fitness can be put aside.

[64] It is true that Dr Morris in October 2012 eight months before the trial considered the appellant was fit to plead and stand trial, but there were many qualifications to his opinion which he gave after only a one hour consultation and candidly stating that he required further information.  By contrast, the appellant's treating psychiatrist since December 2013, Dr Aboud, with the benefit of the information Dr Morris wanted but lacked, formed the firm view that the appellant was unfit to stand trial in June 2013.  That was also the view of psychiatrist Dr Kovacevic in November 2013 and Dr Garg in March 2014.  Dr Garg did not consider the Presser test, but some weight can be given to his view in this proceeding.  Their opinions were consistent with Dr Sadasivan's report and were not gainsaid by any other psychiatrist who had examined him at the time of or since the trial.  Their views were also supported by the testing carried out by psychologist, Ms Russell, and the explanation of the expected effects of those results on the appellant's fitness to plead and to stand trial in June 2013 by psychologist Dr Keane.

[65] The appellant suffered an ABI in 1990 which had stabilised by 1992.  Since then he has been in the lowest one per cent of people as regards his memory.  In addition, he has frontal lobe difficulties which affect his executive functioning.  These manifold problems are exacerbated by stress, tiredness and anxiety.  To further add to his difficulties, he has developed a psychotic disorder.  All this means that when he called on his memory he could remember some things but not others.  He filled the gaps in his memory with his psychotic delusions so that his memories became a mixture of fact and delusion.  For this reason, Dr Aboud and Dr Keane considered that, in terms of the test in Presser,[30] the appellant was not able to understand the substantial effect of the prosecution evidence against him, to make a defence or answer to it, or to give his counsel necessary instructions as to the real version of the facts. Once the extent of his problems was realised, his affairs came to be managed by the Adult Guardian.

[66] This is not a case like Erskine or Lawler where the issue of fitness to stand trial arose many years after the original trial.  Here the issue arose within months of the trial during the preparation of psychiatric material requested by the judge for the appellant's sentence.

[67] Nor is this a case where a review of the transcript at trial clearly demonstrates that there was no issue as to the appellant's fitness to stand trial.  Whilst the trial judge initially thought the appellant may be malingering, as the trial progressed his Honour became increasingly concerned.  He questioned the appellant's capacity "to do anything" and stated that he did not "seem to have any idea".[31]  Later his Honour noted that the appellant "really seems to be quite irrelevant in what he is saying" and that the whole trial was "becoming difficult".[32]  Later still his Honour expressed his concern about the case and that it seemed to him that the appellant did not "have any real grasp of issues".[33]  These judicial comments were consistent with Dr Aboud's assessment of the appellant's condition and his fitness for trial.

[68] This is one of those comparatively rare cases referred to in Lawler[34] where the issue of fitness for trial can be successfully raised post-trial for the first time.  But here, unlike in Lawler and Erskine, the delay in raising the issue was months rather than many years; there was persuasive expert, largely unchallenged evidence that the appellant's mental health issues predated his trial; and the trial transcript recorded matters which supported the expert opinion that the appellant was unfit to stand trial.

[69] The evidence before this Court, particularly that of Dr Aboud, Ms Russell and Dr Keane, raised a real and substantial question about the appellant's fitness to stand trial in June 2013.  There was no persuasive contrary contemporary evidence.  This means that, in accordance with Eastman, this Court must allow the appeal unless persuaded that no court acting reasonably could find the appellant not fit to stand trial.  The many issues raised by the respondent which arguably may tend to support the appellant's fitness for trial are matters that should be argued if and when that enquiry is made before a jury pursuant to s 613(1) Criminal Code and Pt 1B div 6 Crimes Act.[35]

[70] For these reasons this Court granted the application for leave to adduce the further evidence in the appeal, allowed the appeal against conviction and set aside the verdict of guilty on 24 April 2014.  It also follows from these reasons that this Court should now order a retrial to allow the question of the appellant's fitness to stand trial to be determined.  In light of those orders, it is unnecessary to further consider ground 2 of the appeal which could only have resulted in a like order.

[71] I note that the appellant's legal representatives in this matter acted pro bono as did the Adult Guardian and Drs Aboud and Keane.  It is heartening to see this cross-disciplinary collaboration in the interests of the rights and welfare of a man whose mental capacities have been severely diminished.  I thank all involved in this difficult case for their professionalism and generosity.  I also note that it will be a matter for the CDPP whether to pursue a retrial in light of the persuasive medical evidence and the time the appellant has spent in custody.

FURTHER ORDER:

A retrial is ordered.

[72] MORRISON JA:  I have read the reasons of McMurdo P and agree with those reasons and the order her Honour proposes.

[73] PETER LYONS J:  I have had the advantage of reading in draft the reasons for judgment of her Honour, the President.  I agree with the orders proposed by her Honour.  However my reasons for concluding that there should be a retrial, and that exhibit 3 was properly admitted into evidence, are not identical with those expressed by her Honour.  In explaining my reasons, I gratefully adopt her Honour's description of the factual background.

[74] For the appellant it was submitted that exhibit 3 was unlawfully obtained, because the circumstances in which it was obtained by the authorities amounted to a contempt of court.  That was said to be so because the seizing of the tape under the search warrant was an improper interference by federal authorities with the proper functioning of the Cairns District Court.  There was a risk that this conduct would interfere with the Court's authority and performance, because it would give rise to questions over the integrity of the exhibit, and perhaps result in its non-availability.  It was also submitted, in support of the submission that the seizure amounted to a contempt of court, that the exhibit remained in the custody of the Court at the time it was seized; and was subject to an order of a District Court Judge which did no more than confer a limited permission for the surrender of that custody to an identified person or persons.

[75] For the respondent it was submitted that the power to execute Commonwealth warrants on State premises was subject to a principle that the seizure should not amount to a contempt of court.  However the order for the return of the exhibit signified the relinquishment by the court of control over it.  The seizure did not undermine the authority, performance and dignity of the court; rather it was taken with a view to protecting and enhancing those matters.

[76] It is correct to say that at the time of the seizure, the appellant's trial on the charge of a menacing use of a carriage service was continuing.  It was not submitted on behalf of the appellant that the execution of the warrant was for the purpose of furthering the prosecution of that charge.  There is authority for the proposition that the exercise of a power to compel a defendant to give information relevant to a charge where proceedings in respect of that charge have already been instituted would amount to a contempt of court[36].  It would seem that the principle would extend to a case where the proceedings were imminent[37].  In the present case, it seems to have been accepted by the appellant that the warrant was executed for the purpose of investigating the appellant's conduct which gave rise to the later charges of intentionally giving false evidence and making use of fabricated evidence; convictions for which have led to this appeal.

[77] The kinds of conduct which might constitute criminal contempt of court have not been exhaustively catalogued.  It is therefore of some assistance to bear in mind the role played by this area of the law.  It was described by Lord Simon of Glaisdale in Attorney-General v Times Newspapers[38] as:

"… the means by which the law vindicates the public interest in due administration of justice – that is, in the resolution of disputes, not by force or by private or public influence, but by independent adjudication in courts of law according to an objective code."

[78] His Lordship went on to refer to the proposition stated in Reg v Castro; Skipworth's Case[39] that a case pending in a court "ought to be tried in the ordinary course of justice …", and explained that the ordinary course of justice meant "the ordinary and unimpeded course of legal proceedings"[40].

[79] There are some other authoritative statements which are of present assistance.  In Lane v Registrar of the Supreme Court of New South Wales[41] the High Court said:

"It is no interference with the administration of justice that a person, not a party to the action, who has been served with a subpoena should do no more than the subpoena orders him to do.  There is no reason why such a person should officiously produce documents which he has not been commanded to produce.  Since that is so, it is no contempt to tell a person, correctly, that he is not obliged to produce a particular document, even if the person giving the advice has an interest that it be accepted.  Such a situation cannot be compared with cases in which a person keeps a material witness out of the way to avoid service of a subpoena … or attempts to dissuade someone intending, but not bound, to give evidence in a criminal matter from doing so … or destroys a document which he knows may be required to be produced.  In such cases the act done is likely to interfere with the course of justice." (references omitted)

[80] The Court went on to discuss the significance of intention in this context.  Their Honours said[42]:

"It was submitted on behalf of the respondent that conduct otherwise lawful can amount to a contempt of court if done with a particular intention.  That is correct, but the intention must be to do something likely to interfere with the course of justice."

[81] Subsequently their Honours said[43]:

"An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important." (references omitted)

[82] I do not read the last statement as meaning that a person might commit a contempt of court by doing an act, such as the destruction of a document, which might be important evidence in current proceedings, of which that person knows nothing.  In context, it seems to me that their Honours were saying that a person might be guilty of contempt where the person does an act with an intention (a word which their Honours expressly extended to include motive) unrelated to the litigation, when the person knows that it will interfere with the conduct of a trial.  That is apparent from the examples, given in the first passage from Lane set out earlier, of acts amounting to contempt because they were "likely to interfere with the course of justice".

[83] It follows that the execution of the warrant might amount to contempt of court if it were likely to interfere with the trial of the appellant which was continuing at the time of the execution.  It seems to me therefore there is an appropriate legal basis for the appellant's first submission.

[84] Although the appellant submitted that the seizure would interfere with that trial, the submission was not made good.  The appellant's submissions explained neither why the integrity of the exhibit might be affected, nor why the exhibit might be unavailable for the trial.  Since the conduct is alleged to be contempt, which can result in a variety of forms of punitive order, it seems to me that these things should not lightly be inferred.

[85] Thus we were not taken to the provisions of the Crimes Act 1914 (Cth) under which the warrant was issued, for the purpose of demonstrating the correctness of either of those contentions.  It might be observed that on the hearing relating to the admissibility of exhibit 3, it was accepted by the appellant's then counsel that the appellant was not "utterly dependent on the tape cassette that was taken from the registry", because it had in turn been recorded in the earlier trial[44].  Nor did the appellant demonstrate that there was a real likelihood that the original tape would not be available if required when the trial continued before another jury, in the ordinary course.

[86] Once the recording had been tendered at the appellant's first trial, it was to be held by the "proper officer of the court" subject to any order of the trial judge[45].  The expression "proper officer of the court" is defined to mean, for the District Court, that court's Registrar[46].  It follows that from the time of its tender, the recording passed into the custody of the Registrar, probably exercised through the Judge's Associate, and subsequently through Registry staff.

[87] The order for the return of the exhibit, which, it seems to me, should be understood to mean its return to the appellant or the appellant's legal representatives, authorised a change to that position.  However, until the return occurred, the recording remained in the custody of the Registrar.  That was the position at the time of the execution of the warrant.

[88] The submissions for the appellant did not explain why the execution of the warrant in those circumstances would amount to contempt of court.  The execution of such a warrant over an exhibit in proceedings which have been completed would generally not interfere in any way with the administration of justice, and in those circumstances could not amount to a contempt of court.  In the present case, it has not been shown that the execution of the warrant would interfere with a trial.  Accordingly, the execution of the warrant did not, and was not shown to be likely to, interfere with the administration of justice.

[89] Accordingly, the appellant has not established that the seizure of the recording amounted to a contempt of court.  There was therefore no basis for its exclusion on discretionary grounds from the appellant's trial which resulted in the convictions the subject of this appeal.

[90] On the question whether there was a miscarriage of justice because there was a real and substantial question as to whether the appellant was fit to stand trial, I agree with the reasons of McMurdo P.  As I have indicated, I also agree with the further order proposed by her Honour.