R v Huni[2014] QCA 324

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted by a jury of the attempted murder of Garth Tetai and of unlawfully using a motor vehicle belonging to Mr Tetai.  He was unrepresented on his appeal against conviction, in which he asserted:

“a substantial miscarriage of justice on the grounds that:

“(i)the verdict cannot be supported having regard to the prosecution’s evidence being the product of malicious prosecution where its prejudicial effect manifestly outweighs its probative value;

(ii)the trial judge’s bias observations of the abovementioned facts, by not exercising her discretion and allowing inadmissible material into evidence and consequent misdirections;

(iii)the trial judge’s failure to explain the relevant laws in dispute to the jury;

(iv)trial judge from preventing me from adducing evidence for the purpose of rebuttal;

(v)trial judge’s bias final summation;

(vi)new evidence.”

[2] The new evidence referred to at (vi) was a map showing Brisbane city parking areas, which the appellant sought to adduce on the basis that it showed the intersection of Mary Street and Eagle Street.  The appellant was granted leave to amend his notice of appeal to include a further ground he raised in the course of argument, that the trial judge erred in refusing an application under s 52 of the Jury Act for the jury to undertake a view.  In addition to the grounds of appeal, a member of the court raised another issue: whether the trial judge’s directions as to intent adequately dealt with psychiatric and psychological evidence given in the case.

The Crown Case

[3] The Crown case was that in the early hours of 29 September 2009 the appellant assaulted Mr Tetai and then ran over him with a utility vehicle.  Mr Tetai and the appellant had been friends and shared a house.  A series of text messages taken from the appellant’s phone showed that on 28 September 2009 the appellant formed the belief that his former de facto wife, Ms Saua, with whom he had a son, had had a sexual relationship with Mr Tetai.

[4] On the evening of 28 September, Mr Tetai and the appellant went out drinking.  They were joined by a friend of the appellant’s named Tuala.  The latter said in evidence that the appellant had texted him earlier that day, telling him that Ms Saua had slept with his best friend.  The appellant that night was affected by alcohol and distraught about the state of his relationship with Ms Saua.  Mr Tuala stayed with the two men until the bar they were drinking in closed, when he went to catch his train home.

[5] At about 1.00 am, Ms Saua, who was staying with a friend in a unit at Cathedral Place, received a call from Mr Tetai.  In the course of their conversation the appellant took the phone and said that he wanted to see his son immediately.  If Ms Saua did not “come down”, she would watch what was going to happen to her boyfriend.  She heard Mr Tetai in the background say, “Don’t come down”.

[6] A number of residents of Cathedral Place gave evidence of seeing an assault committed at about 1.00 am near a utility parked in the driveway to the complex. One man was punching another (Mr Tetai), who was originally seated in the driver’s seat of the utility.  Mr Tetai was pulled out of the vehicle, repeatedly dropped onto the concrete driveway and kicked in the head.  His attacker then got into the utility, reversed, lined the vehicle up with Mr Tetai’s inert body, and drove over it.  (Those events can be seen on CCTV footage which was an exhibit; it was retrieved from a camera located at the entrance to Cathedral Place.)  The utility was then driven out of the entrance area of the complex and onto the street.  The witnesses to the attack went to the aid of Mr Tetai, who was grossly injured but still alive.

[7] Medical evidence was given about Mr Tetai’s injuries, which included a severe closed head injury, fractures to the face and skull and damage to his liver.  He was left with cognitive difficulties and loss of memory, and he had no recollection of how he was injured.  A maxillofacial surgeon gave evidence that Mr Tetai’s injuries were consistent with being run over by a car.

[8] A security guard working in an establishment in Mary Street said he heard screeching tyres and saw a vehicle veer from one side to the other of the road, leave the road and mount the kerb as its driver tried to turn right from Eagle Street.  The vehicle, a utility, was stopped by a garden bed.  Its driver unsuccessfully attempted to reverse it, then got out of it and walked away down Felix Street, which was the next street to the left off Mary Street.  The security guard reported the incident to the police.

[9] The appellant’s former wife, Ms Pickett, gave evidence that at about 1.18 am on the morning of 29 September 2009, she received a text message from the appellant asking her to call him.  She did not do so, but shortly after, her telephone rang with a request from an 1800 number for a reverse charge call.  She telephoned the appellant back at 1.32 am.  The appellant asked her to pick him up from the city and told her that he had beaten Mr Tetai up “pretty bad”.  His words were slurred, but he made sense and was coherent.

[10] At about 1.30 am that morning, two Federal Police officers driving along Mary Street saw a utility which had struck a tree in the section of Mary Street between Felix and Market Streets.  Further along Mary Street, past its intersection with Albert Street, they saw a male pedestrian (the appellant) who appeared unsteady.  They pulled up and asked him if he was all right.  He walked to their vehicle, got into the back seat and said, “I believe you guys might be looking for me, I am giving myself up”.  The officers noticed a small amount of blood on his hands and arms.  One of the officers, Sergeant Beling, asked the appellant if he had “pranged” his car and he answered that he had, although it was not his car but his mate’s.  He agreed that he was driving it.  Sergeant Beling asked where his mate was now and he responded, “He was rooting my missus, that’s not right, what was I supposed to do?”  The appellant put to Sergeant Beling in cross-examination that his account of the conversation was a “fabrication” but he denied that was the case.

[11] Two Queensland Police officers, Constables Barber and Shaw, were directed to attend a traffic accident in Mary Street.  Both gave evidence on a voir dire, but only Constable Barber gave evidence at the trial.  He said that they saw the utility, which he recalled as having hit a pole of some sort.  Other police arrived and they moved on to join the Federal Police, who had the appellant in their custody further up Mary Street.  According to Constable Barber, the appellant said to him words to the effect of “I’m the one you’re looking for”.  The constable arrested him, handcuffed him and placed him in a police van.  The appellant was in Constable Barber’s company for about 15 minutes.  According to the constable, he appeared to be intoxicated; his speech was slow and slurred but he was calm and seemed to be aware of his surroundings.  Constable Barber’s partner, Shaw, performed a breath test.

[12] Two plain clothes officers, Detectives Libke and Scott, were sent to the accident scene and took some footage of it.  The appellant put to them in cross-examination that the footage had been fabricated:  the street signs had been interfered with, as was shown by the fact that they did not show any street numbers;  the collision impact on the utility’s bumper bar was V-shaped, whereas the tree it was supposed to have hit was circular;  still photographs showed different bonnet profiles on the utility, indicating two different vehicles were involved; and, he claimed, it could be seen that pieces of bark had been glued onto the car to make it appear that it had struck a tree.  The officers did not accept that proposition.

[13] The two police officers went from the collision site to where the appellant had been apprehended.  Libke said he could smell alcohol on the appellant and noticed that his speech was slow.  Detective Scott recalled that the appellant had slurred speech, but appeared to understand his questions, although he repeated himself.  Detective Libke took possession of the appellant’s mobile phone, which was photographed.

[14] Scott recorded a conversation with the appellant in which he said that things got out of hand because Ms Saua did not want him to see his son.  He had been drinking with his best friend, Mr Tetai, who was sleeping with Ms Saua behind his back, but it was when Ms Saua upset him by refusing to let him see his son that he “lost it”.  He had taken it badly and he “may have beaten [Mr Tetai] up”.  His recall was that he had beaten Mr Tetai up with his hand.  He was asked whether he struck him with the utility, and said he did not know what had “happened after” he beat him.

[15] The appellant was taken back to the Brisbane City station and photographed.  According to Detective Scott, he was co-operative during that process.  The appellant gave another breath specimen and a DNA sample was also taken from him.  The officer who took the DNA sample said that the appellant was co-operative and responded appropriately to questions about his personal particulars.

[16] At 7.50 am on the morning of 29 September 2009, two police officers, Snr Constable Anderson and Sergeant Savage, formally interviewed the appellant.  He said that the previous evening he had been drinking beer and now had a hangover, with what he described as “the normal symptoms from drinking well having a big night out”.  He was asked about the assault and said that he recalled hitting his mate.  Mr Tetai had told him on the afternoon of 28 June that he was sleeping with Ms Saua; if he had wanted to beat Mr Tetai up he would have done so then.  In their discussion, Mr Tetai had acknowledged that what he did was wrong; his grandmother had told him that.  He knew that he deserved a hiding and that the appellant should have “beaten him up”.  Instead they had had a meal and decided to go out.  After going to two bars they had ended up at Ms Saua’s unit.  He did not know “how come she was outside”.  They had some conversation.  He had wanted to see his son and Ms Saua must have said something about the child which made him “go off”.

[17] The appellant remembered punching Mr Tetai “a few times”.  He had no recall of driving Mr Tetai’s car.  His last recollection was of crossing the road to talk to the Federal Police and giving himself up because he knew he had beaten Mr Tetai up.  He had previously had the experience of not recalling what he had done the night before, which occurred only when he had been drinking alcohol.  Later that day the appellant was shown a part of the CCTV footage from the Cathedral Place driveway.  He identified Mr Tetai’s vehicle and the person emerging from the passenger side as himself.  However, as the filmed assault progressed, he declined to watch the footage any further.

[18] Police officers examined and photographed Mr Tetai’s vehicle and took blood swabs from it.  The appellant’s DNA was found on the vehicle’s steering wheel and on the driver’s side door.  Blood on a strut under the utility and on a seatbelt buckle was consistent with Mr Tetai’s.  On the appellant’s shoes and hands there was a combination of DNA matching both the appellant’s and Mr Tetai’s.

[19] A psychiatric nurse saw the appellant on 30 September 2009 in the watch house.  The appellant gave him a description of having gone drinking with Mr Tetai despite having discovered Ms Saua’s infidelity with him.  They had both consumed a good deal of alcohol.  He recalled arguing with Mr Tetai and believed he had punched him and walked away.  He had been shocked by the level of violence depicted in the CCTV footage which he had seen.  The appellant denied any thoughts of self-harm or any history of it.  The examining nurse saw no abnormalities in his behaviour, and no evidence of thought disorder or delusional content.  The nurse questioned the appellant about whether he had any experience of perceptual disturbance – hearing or seeing things which were not there – and he denied any such experience.  Giving evidence, the nurse said that nothing he had observed about the appellant gave cause for concern about his mental state.  The appellant put it to him that he was lying about having seen him; the witness rejected that proposition.

The defence case

[20] The appellant gave evidence.  He asserted that on the evening in question he had been in a dissociative state which was the result of an existing post-traumatic stress disorder produced by childhood abuse.  He agreed under cross-examination that he had never heard of dissociation until he read the report of a psychologist, Ms Perkins (who had on his lawyer’s instructions interviewed him while he was in custody).  The dissociative state had lasted three days so that he had no recollection, for example, of speaking to medical practitioners at the correctional centre where he was placed in remand.  He was in and out of consciousness; on some occasions when he spoke to police and other witnesses he was actually unconscious.  He had also been the victim of a massive conspiracy.  Most of the material used against him had been fabricated.  The scene depicted on the CCTV footage and described by the Cathedral Place witnesses was a fake which the police filmed.  Most of the text messages relied on by the Crown had similarly been fabricated.  He had never seen the Federal Police officers who gave evidence that they had spoken to him that night.  Detective Scott’s recording was of him, but it might have been corrupted.

[21] Notwithstanding those claims, the appellant accepted that his actions had caused Mr Tetai’s injuries, maintaining it was because he was in a dissociative state.  He claimed to have blacked out at about 8:15 pm the preceding evening.  The fact that he had told police that in his interview that he had seen Ms Saua in the Cathedral Place entrance showed that he was hallucinating.  His recollection was that he punched Mr Tetai once.

[22] The appellant called Ms Perkins, who had interviewed him for two hours on 4 December 2009, to give evidence.  On the basis of his appearance  and a history he gave, of a childhood during which he was severely punished, his inability to finish school, substance abuse, irritability and aggressive behaviour, which involved his smashing up his house, she formed the opinion that he was suffering from a severe complex chronic post-traumatic stress disorder.

[23] The appellant did not actually elicit from Ms Perkins in evidence-in-chief any opinion about whether he was in a dissociative state when he assaulted Mr Tetai, but the prosecutor very fairly established in cross-examination that it was her view that he probably was.  Her opinion in that regard was based on an email from the appellant’s lawyer, outlining the charges he was facing, which indicated that an intensely violent act was involved, and the fact that the appellant said he had more than once smashed up his house, which she took as a history of dissociative episodes.  She had not had access to any of the evidence about his actual behaviour on the night in question, including the CCTV footage.

[24] Ms Perkins did not think the appellant had any mental disorder other than post-traumatic stress disorder; her conclusion as to the cause of his dissociation relied on that diagnosis, with the possible involvement of alcohol.  The fear of abandonment could trigger a dissociative experience in someone with complex post-traumatic stress disorder.  The refusal of the appellant’s demand to see his son could have been the immediate trigger for the dissociative episode in which he attacked Mr Tetai.  Being in a dissociative state would affect an individual’s capacity to understand his actions and control them:

“It means that they are not intending anything. It’s not a conscious intention. It’s not a cognitive intention. It’s purely an emotional reaction.”

Ms Perkins said she was “not familiar” with a dissociative experience lasting three days.

[25] The appellant called two other witnesses.  The first was a Mr Talima, who had employed him as a crowd controller.  He said that it was out of character for the appellant to hurt anyone.  He considered that when he had visited the appellant at the correctional centre the latter was “kind of like insane” and it was his opinion that a photograph of the appellant clearly showed a man in a dissociative state.  Another witness was a chaplain, Mr Diloi, who had seen the appellant in prison and described him as distressed and upset.  They had “shared feelings” and it seemed to him that the appellant was an honest person.

The Crown case in rebuttal

[26] The appellant called a psychiatrist, Dr Sundin, to give evidence in rebuttal.  The appellant had declined the opportunity to be interviewed by her, but she had been provided with the footage of the assault on Mr Tetai, witness statements, text messages, transcripts of evidence and interviews and Ms Perkins’ report.  She thought it possible, but unlikely, that the appellant suffered from post-traumatic stress disorder; it was unlikely because he did not exhibit a number of relevant symptoms including recurrent or intrusive distressing recollections and avoidance phenomena, and had no history of depression or feelings of detachment or estrangement from others.  Most people who had had difficult childhood experiences did not develop post-traumatic stress disorder in consequence.  The appellant’s problems with lack of memory were the result of intoxication.  His reported history was of a weekly binge drinking pattern.  She did not think the appellant’s violence was produced by dissociation but instead was the result of anger, frustration and intoxication.

[27] Dr Sundin’s opinion was that the appellant was not deprived of any of the capacities relevant under s 27 of the Criminal Code.  The appellant had become fixated on the notion of dissociation as an explanation for his actions absolving him of responsibility, which was also consistent with his suggestions of police fabrication of evidence.  There was no evidence in the CCTV footage or the DVD’s of the police interviews that the appellant was in a dissociative state.  The interviews showed that he was not psychotic, was not hallucinating, was fully oriented in time, place and person and was completely co-operative with the police.  The appellant’s perception in his interview with police that Ms Saua had been in the Cathedral Place entrance way, as opposed to upstairs, was not evidence of hallucination but simply a flaw of memory or possibly a misperception.

[28] Asked whether there was any basis for supposing that the appellant was incapable, because of mental infirmity or intoxication, of forming a specific intent, Dr Sundin answered:

“Not on the basis of mental infirmity. There was certainly material that Mr Huni said to the police with regard to his mental state earlier that afternoon. Around about 5 o’clock he said that he had discussed with Garth, the victim, that Garth deserved a good flogging, that Garth knew that he had done the wrong thing, that even Garth’s grandmother agreed that Garth deserved a good flogging for having slept with his mate’s girlfriend. So I would suggest that the thought for retaliatory violence had been first formed some hours previously. Now, whether that intent waxed or waned over the course of the subsequent eight to 10 hours, I – I can’t say.”

[29] The prosecutor continued his questioning:

Right. So in assessing intent, you look at motive and if there’s any reason for the behaviour?

Dr Sundin replied:

“Yes. And in this case Mr Huni had motive and had a very clear trigger to set off the behaviour. I would make the comment for the jury that extreme behaviour does not equal behaviour being irrational.”

She explained that the “trigger” to which she referred was Ms Saua’s refusal to allow the appellant to see his son.

Appeal grounds (i) and (ii): malicious prosecution and bias

[30] The appellant reiterated some of the contentions made at trial.  A number of items of evidence had been fabricated or doctored, and various witnesses had formed part of a conspiracy in giving evidence against him.  The evidence had been concocted and false accounts had been given to conceal what the appellant said was the fact, that he had blacked out on the evening of 28 September 2009 and had been a psychotic state thereafter.  Those arguments were the basis of two grounds of appeal: that the prosecution was a malicious one and that the trial judge had displayed bias by allowing that material into evidence.

[31] According to the appellant, still photographs said to be taken from the Cathedral Place CCTV footage showed two different utility vehicles, which could be ascertained from the fact that in some photographs a rack, carpet and tools were visible in the tray of the utility, while in others they were not.  The thesis was that the video footage of the assault involving the utility had been doctored because the genuine footage would have shown the appellant acting in a state of automatism.

[32] Evidence about where and how the utility had collided with the tree had been fabricated: the street signs had been interfered with, because they did not show any street numbers;  the map which the appellant sought to tender showed that where the accident was supposed to have occurred was actually Eagle Street, not Mary Street; the collision impact on the utility’s bumper bar was V-shaped, not circular; and the different bonnet profiles on the utility shown in the photographs indicated that two different vehicles were involved.  When he was breath-tested, the police officer had asked him if he had been in a vehicle, which was part of an attempt to frame him.  The purpose of the supposed fabrication was not clear; the appellant said he was unable to say what the real accident scene would have looked like.  As with other questions about the logic of his arguments, the appellant adhered to a mantra that the evidence had been tampered with “to conceal matters affecting [his] liberty and frame [him] for dissociative experience”.

[33] Photographs which the police had taken of him, the appellant said, had been photo-shopped because genuine photographs would have shown that he was in a dissociative state.  One was shot so as to make it appear he was standing, when in reality he was sitting down because he was unconscious.  There were, however two photographs on which the appellant did rely; they indicated, in his submission, that he had just woken (from unconsciousness) because they showed his eyes as bloodshot, with “bags” under them.

[34] The appellant contended that there was a hiatus in the Crown case as to his whereabouts and mental state after his arrest, which was indicative of something untoward.  A photograph supposedly taken at the watch house was in reality taken when he was in prison, and other photographs purporting to be taken immediately after his arrest had clearly been taken at different times, because in some of them he had lost weight.  Linked to that was the fact that Dr Sundin in her evidence had referred to his having been in hospital (although she immediately corrected herself to say that he was in prison), confirming that there was a gap in the evidence of what had happened to him.  Also demonstrating the claimed hiatus was the fact that two photographs of his jeans bore the numbers 88 and 89, while a photograph taken by the same photographer of the Cathedral Place location bore the number 26: that sequencing was inconsistent with the photographer’s evidence that she had photographed the jeans before taking photographs of the Cathedral Place site.

[35] On the appellant’s thesis, both his former wife and former de facto partner had been “corrupted” to give false statements to support the Crown case.  Ms Saua’s credibility was undermined by the fact that in evidence, she had identified as her own the mobile phone shown in the photograph which on Libke’s evidence was the appellant’s. (She had also said, immediately before doing so, that she did not recall what her phone looked like.)  On the other hand, while she gave evidence that she had given her mobile phone to a police officer, it had been not logged as an exhibit (although text messages extracted from it were in evidence).  In addition, she had said in evidence that when she looked down from her friend’s apartment and saw police in the entrance way to Cathedral Place, she did not know why they were there.  That was inconsistent with her evidence that the appellant had warned her that something was going to happen to Mr Tetai.  Ms Pickett should not have been believed because she said that the appellant had used an 1800 number to ring her, but he would not have been able to remember one.

[36] The appellant alleged that it was another police officer, not Anderson, who had interviewed him; an assertion which he said was supported by discrepancies in the recording of the interview.  The police officer had asked about the appellant’s having said he could have beaten up Mr Tetai “yesterday or the day before when you first found out”.  The reference to “day before” was further evidence of the hiatus in the Crown case as to his whereabouts.  In showing him the Cathedral Place footage, the police officer had twice asked him if he could identify a male getting out of the passenger side of the vehicle (and the appellant had twice answered that it was he).  It was clear from the question’s reiteration that he could not have been conscious when it was first asked.  At other points of the interview, he, the appellant, had mentioned being told by another officer that the charges could be serious and that Mr Tetai was in a serious condition.  That showed that somebody must have entered the room to give him that information.  Since that did not appear on the DVD of the interview, it followed that the DVD had been fabricated.

Conclusions on “malicious prosecution” and “bias” grounds

[37] There was in fact nothing remarkable about any of the photographs to which the appellant alluded in his submissions.  For example, the contents of the utility tray were more or less visible depending on the angle from which the photographs were taken and the effect of the light; the photographs of the appellant himself were entirely ordinary, and the two on which he relied as proving he was in a “dissociative state” showed nothing more than the fatigue to be expected in the circumstances.  The suggestion that a collision scene involving the vehicle which was unquestionably Mr Tetai’s had somehow been staged was ludicrous.  The implausibility of the contentions based on the content of the record of interview is self-evident, and the DVD of the interview, which went for an hour and a half, shows the appellant’s claim of being unconscious at points during it to be a nonsense.  In it, he is apparently tired, but consistently coherent, responsive and at times discursive.  The reasons the appellant now puts forward could not possibly have required the jury to reject the evidence of Ms Saua and Ms Pickett.

[38] The notion of the conspiracy and malicious prosecution, which must also have entailed false evidence from the Cathedral Place residents as to what they saw, can readily be rejected.  The theory provided no rational basis for the trial judge to decline to admit the evidence in the Crown case, and the jury’s failure to be persuaded by it is entirely unsurprising.  The verdict was not unreasonable by reason of the jury’s rejection of the appellant’s assertions of a fabricated case, and it was certainly well open on the evidence of the eye-witnesses, the CCTV footage, and the appellant’s own admissions.

The failure to explain relevant laws

[39] There is nothing in this ground, which was based on an argument that the trial judge had failed to tell the jury about two relevant sections of the Criminal Code 1899.  The first was s 259, which the appellant said was breached because he had been searched while in custody.  That section, while in force, conferred a power of search only where a person had been charged.  But it seems that the copy of the Code on which the appellant relied to make his argument was out of date.  The provision has been repealed, and s 443 of the Police Powers and Responsibilities Act 2000 now permits a police officer to search any person lawfully arrested.

[40] The second of the provisions relied on was s 357 of the Code, which makes it an offence to record a false entry in a record relating to a person in confinement.  The prosecutor had tendered a document titled “Detention log entry”, which set out a series of questions with answers apparently given by the appellant as to his mental and physical health.  It bore what looked to be his signature.  The appellant put to Constable Anderson, who was present at the watch house when the questions were asked and answered and the document signed, that his signature had been forged.  The officer denied any forgery, and there was no further evidence about the signature.  Nonetheless, the appellant asserted that the trial judge should have directed the jury that an offence under s 357 had been committed.  Plainly, in the absence of any evidence to support the allegation, that would not have been a proper direction.

The refusal to allow evidence in rebuttal

[41] The appellant sought to cross-examine one of the Cathedral Place witnesses who gave evidence of the assault about a photograph of Mr Tetai’s t-shirt, which was in a damaged state.  The photograph had not been put into evidence.  The trial judge, properly, told the appellant that he could show the photograph to the witness and ask him if he recognised the clothing; if he did not, there could be no further questioning of him about it.  The appellant responded by saying that was not useful to him, and did not persist.  In submissions on the appeal, he said that he had thus been refused the opportunity to adduce evidence of the state of Mr Tetai’s clothing and his shoes, the damage to which, he contended, would have shown that he was insane.  The difficulty, of course, was that the photograph of the shirt was not put to any witness who could give evidence about it, while nothing at all was raised about the shoes or any photograph of them.  This ground of appeal is without substance.

“Bias” in summing up

[42] The appellant did not identify in what respect the trial judge was said to have exhibited bias in summing up.  The summing up was long, careful and entirely dispassionate.  Her Honour spent a considerable amount of time summarising the evidence of each witness and reminding the jury of the appellant’s cross-examination in each case.  There is no sign of anything which could be described as remotely indicative of bias in her Honour’s instructions to the jury.

The refusal of the application for a view under s 52 of the Jury Act

[43] After the jury had been retired for a period in the order of 26 hours, having returned once for a direction as to intent and willed acts and once for a direction as to the effect of voluntary intoxication on the insanity defence, the appellant said he wished to make an application for a view under s 52(1) of the Jury Act.  The section provides as follows:

“52Inspections and views

(1)If, on a trial, the judge considers it desirable for the jury to have a view of a particular place or object, the judge may give the necessary directions.”

Her Honour declined the application, saying that it was too late.

[44] The appellant referred us to R v Paul,[1] in which a jury was permitted to inspect the scene of an offence after it had retired.  But Paul was an exercise of discretion in a particular case in which the jury had in fact requested during its deliberations that it be permitted a view.  In the present case, the jury expressed no such desire, and the trial judge declined the application, unsurprisingly, because of the stage which the trial had reached.  No error is shown in that exercise of discretion.

Adequacy of directions on intent

[45] During the respondent’s submissions, Philip McMurdo J raised with counsel the question of whether the jury had been adequately informed about the significance of Ms Perkins’ evidence to whether the appellant had an intention to kill; that question is the subject of his judgment, which I have read in draft.  I am not convinced that the jury’s question about the relevance of voluntary intoxication indicated any acceptance of Ms Perkins’ evidence, as opposed to the jury’s considering that there was a shorter and simpler path to rejecting the insanity defence.  However, there is some possibility that they had not, at least at that stage, rejected her opinion, and if that was so, I agree with Philip McMurdo J that it was capable of bearing not only on the question of capacity to form an intent but whether an intent had in fact been formed.  Dr Sundin’s evidence, to contrary effect, was also relevant.

[46] Philip McMurdo J has summarised the effect of the trial judge’s directions on intention to kill, and has set out in full particularly relevant passages.  It is unnecessary for me to repeat all of them.  However, I have reached a different view as to what the jury was likely to have understood by them.  It seems to me that her Honour’s directions:

“The fact that he was intoxicated, and all the other evidence of his state of mind, including the evidence you have heard from experts, may be regarded, for the purpose of ascertaining whether the intent, in fact, existed”

and

“If, because of the evidence as to the effect of intoxication or otherwise, you are not satisfied beyond reasonable doubt that Mr Huni did, in fact, form the necessary intent, you must find him not guilty of attempted murder”

made it clear that it was not merely the fact of the appellant’s intoxication but the evidence which the experts had given about his mental state which was relevant, if the jury accepted it, in determining whether the necessary intent existed.  The jury could only have understood the reference to

“the other evidence of his state of mind, including the evidence…from experts”

as a reference to Ms Perkins’ evidence about the supposed dissociative state and its consequences for the appellant’s reactions, and to Dr Sundin’s contrary view.

[47] In reminding the jury of the expert evidence on the appellant’s mental state, her Honour included the relevant passages: Ms Perkins’ opinion that if the appellant were in a dissociative state, it would have meant that he had “no cognitive intention”, as well as suffering impairment of the capacities of understanding and control; and Dr Sundin’s views that he had not been prevented by any mental infirmity from forming a specific intent; that the evidence suggested the formation of a “thought for retaliatory violence” some hours earlier; and that the motive and trigger for the behaviour were relevant in assessing intent.  Given that context, I do not consider that there was any real risk that the jury would have misunderstood the relevance of the expert evidence, if they accepted it, to deciding whether the Crown had established the necessary intent beyond reasonable doubt.

Application of the proviso

[48] Had I reached a different view, I would, in any event, have concluded that no substantial miscarriage of justice had resulted and that this Court should exercise its power under s 668E(1)(A) of the Criminal Code to dismiss the appeal.  That is because I do not consider that the theory of the appellant’s having committed the assault in a dissociative state could have been accepted by the jury as a reasonable possibility.

[49] Ms Perkins’ opinion to that effect was formed on remarkably scant evidence.  The diagnosis of post-traumatic stress disorder was based on a two hour interview and depended heavily on the appellant’s history.  The conclusion that he was actually in a dissociative state at the relevant time also depended on his report to Ms Perkins (unsupported by any evidence from him or anyone else) about smashing up his house, from which she drew the inference of previous dissociative episodes; and the fact that the assault was clearly very violent.  The almost complete reliance on the appellant’s self-reporting had to be considered against the background of his manifest unreliability as a historian: as in his claims, for example, of remaining in a dissociative state for three days and being unconscious for parts of the police interview.

[50] Importantly, Ms Perkins’ opinion as to dissociation was formed in an evidentiary vacuum.  It ignored the context of the appellant’s conduct and admissions at the time of, and immediately after, the assault.  For example, it was given without regard to Ms Saua’s evidence that the appellant had warned her about what was about to happen to Mr Tetai in consequence of her refusal to produce his son.  The appellant’s only basis for challenging that evidence was that it was not like him and that he could not have made the statement because he was in a dissociative state; the problem of circularity in that argument is obvious.  The appellant’s warning to Ms Saua was entirely inconsistent with the lack of conscious or cognitive intention which Ms Perkins described as characteristic of a person in a dissociative state.  Nor had Ms Perkins viewed the CCTV footage of the assault or had access to the audio and video recordings of the appellant’s dealings with the police soon after, in which he was responsive and comprehending.

[51] In light of the abundance of contemporaneous evidence available to contradict the appellant’s account of his actual mental state and the paucity of material on which Ms Perkins gave her opinion, the jury could not have had a reasonable doubt on the strength of the dissociative state thesis.  It would not have come to any different conclusion, had a more extensive direction on intent been given.  If some error were involved in that regard, there was no substantial miscarriage of justice.  I am satisfied that the charge of attempted murder was proved beyond reasonable doubt.

Order

[52] I would refuse the application to adduce new evidence (the map) and dismiss the appeal against conviction.

[53] GOTTERSON JA:  I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.

[54] PHILIP McMURDO J:  I agree with Holmes JA in her rejection of the arguments advanced by the appellant at the hearing of this appeal.  However, I disagree with the orders proposed by her Honour because in my conclusion, the jury was not adequately directed on the use to be made of the evidence of Ms Perkins, a psychologist.

[55] Two witnesses gave opinion evidence about the appellant’s mental state when he assaulted the complainant.  Ms Perkins said that the plaintiff was then in a state of dissociation, caused by a severe, complex chronic post-traumatic stress disorder.  A psychiatrist, Dr Sundin, disagreed, saying that it was unlikely that the appellant suffered from post-traumatic stress disorder and was in a state of dissociation.

[56] The evidence of these witnesses was relevant to the issue of whether, according to s 27 of the Criminal Code, the appellant was criminally responsible for the acts which were elements of the offences with which he was charged.  But in relation to those charges for which a specific intent was also an element, in particular the charge of attempted murder, the evidence was also relevant to whether that intent was proved.  The relevance in this second respect is not disputed by the respondent to this appeal.  But there is a question of whether that relevance was sufficiently explained to the jury.

[57] Ms Perkins explained the nature and consequence of the brain being in a dissociative state as follows:

“There’s a part of the brain which is emotional, which is where the emotions are coming from, and there’s a part of the brain where your rational thoughts come from.  Now, under normal circumstances, all of these things are functioning at the same time and they’re integrated. … Dissociation means that those parts of the brain are not integrated well … [W]hen a person has post-traumatic stress disorder, under a certain amount of emotion, a critical amount of emotion, that person can dissociate so that … [a] rational part of their mind is not functioning as well as it should do.  So that means the planning, the organising, the intention, all those executive functions of the brain are not functioning as well as they ought to.”

[58] Ms Perkins gave this further evidence when cross-examined by the prosecutor:

“In relation to a complex PTSD related dissociative experience, how would it be triggered?---How would it be triggered? By anything that reminded the person of pain and loss and fear. They say that one of the legacies of child abuse is a lust for attachment. So what they mean by that is attachment issues are very important, fear of abandonment, fear of losing touch with somebody that you love. That sort of fear can be a trigger for people with complex PTSD.

All right. Is that the only thing?---Fear of being hurt, fear of being threatened, any – anything that looks like a threat to the person can possibly trigger those kind of episodes.

And is that because that sort of reminds them, whether subconsciously or consciously, of their traumatic childhood?---Yes, and I wouldn’t use the word subconscious. It’s about the emotional part of the brain because there – there are two different pathways to behaviour through the brain. One goes through the cognitive functioning and the cerebral cortex where the person can evaluate the situation and judge what is appropriate behaviour and what is not. The other pathway goes straight through the emotional centres and people with any form of PTSD are much more likely to be taking in information directly through their emotions, and so what they do is they act without any thought of consequences.

…

[W]hat are the relevant consequences of someone being in a dissociative state?  Does it affect their conscious understanding of what they’re doing and things like that?--- Yes.

In what way?--- It means that they are not intending anything.  It’s not a conscious intention.  It’s not a cognitive intention.  It’s purely an emotional reaction.

Is – does it affect someone’s capacity to understand what they’re doing?--- Yes, I believe so.

The capacity to control their actions?--- Yes, I believe so.”

[59] Ms Perkins was asked about the effect of alcohol upon the appellant’s mental state and his actions and gave this evidence:

“[I]n this case, though, focusing on what happened here, isn’t it true to say that the circumstances – so far as that particular consideration is concerned, the circumstances were aggravated by his alcohol consumption?--- Yes, that’s probably true, but I don’t think it takes away the fact of how the emotional reaction – the emotional reaction is there and the alcohol would have facilitated the emotional reaction.

It’s true that, in your opinion, there would have been a cumulative effect of the alcohol and the PTSD------ I think so, yes.

--- to cause what you – what we – what happened here, as far as you’re aware?--- I believe so.”

[60] Had the jury accepted all of this evidence from Ms Perkins, the appellant would not have avoided criminal responsibility under s 27, at least because of the contribution made to his dissociative state by his self-induced intoxication.  By s 28(2) of the Code, the provisions of s 27 do not apply to the case of a person who has to any extent intentionally caused himself to become intoxicated, whether his mind is disordered by the intoxication alone or in combination with some other agent.  Further, her evidence seemed to stop short of saying that the appellant was deprived of a relevant capacity:  rather it was to the effect that his cognitive functioning was diminished and overcome by his emotional functioning.

[61] Nor did Dr Sundin’s evidence support the exculpation of the appellant under s 27.  In her opinion the appellant was not suffering any mental disease or natural infirmity by which he was deprived of a relevant capacity under s 27:  rather, the appellant’s conduct was a consequence of a combination of a high level of intoxication and a man with a history of bad temper, who was very angry that his partner had left him and had refused him permission to see their son.

[62] The jury was directed that there was also a question about the operation of s 23 of the Code.  The appellant gave evidence and argued to the effect that he was “in and out of consciousness”.  That was not supported by the evidence of either of the expert witnesses.  Indeed, when questioned by the appellant, Ms Perkins specifically rejected that proposition.  Consistently with the evidence of Ms Perkins, it was open to the jury to conclude that the acts of the appellant in assaulting the complainant were voluntary acts.

[63] Once the jury had concluded that these acts, in assaulting the complainant, were acts for which he was criminally responsible, the jury had to be persuaded that the appellant did those acts with the intention of killing him.  Several facts and circumstances were said to compel an inference that he had that intention, not the least of which was the particularly vicious and sustained nature of his assault.

[64] The evidence of each of the experts upon the likely mental state of the appellant was relevant to this issue of intent.  Dr Sundin’s evidence, if accepted, was relevant to the question of intent.  It at least showed the appellant as being driven by his emotions (fuelled by alcohol) rather than by cold reason.

[65] Ms Perkins described the effect of a dissociated state upon, in particular, the existence or otherwise of an intention.  In particular, she said that people with the appellant’s mental state “act without any thought of the consequences”.

[66] Evidence about a mental state which does not absolve a defendant from criminal responsibility for his acts nevertheless can be relevant to the distinct issue of whether the defendant holds a specific intent which is an element of the offence charged.  The High Court so held in Hawkins v The Queen,[2] in which the trial judge had rejected, as irrelevant, medical evidence which cast doubt on whether the defendant was able to form a specific intention to kill or cause bodily harm.  The evidence was sought to be led in the defence case, not to prove a defence of insanity, but to answer the allegation of intent.  A majority of the Court of Criminal Appeal in Tasmania held that evidence of a mental disease which deprived the defendant of a relevant capacity (specified in the equivalent of s 27 of the Queensland Criminal Code) could not be used to consider the question of intent because, absent an insanity which was proved in the defence case, the question of intent had to be decided upon the premise that the defendant had the capacity to understand the nature of his act, to know that it was one which he ought not to do and to resist an impulse to do the act.[3]

[67] The High Court unanimously reversed that decision.  In the joint judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ, it was said that the approach of the majority had overlooked the distinction between, on the one hand the operation of the Tasmanian equivalents of s 23 and s 27 of the Queensland Criminal Code in precluding criminal responsibility for doing an act and on the other, the prescription (as an element of an offence) of a specific intent with which an act is done.[4]  Such evidence could not be considered in determining whether an act of the defendant was involuntary and intentional.  But that provided no “reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent”.[5]

[68] The High Court there approved this passage from a judgment in the Appeal Division of the Supreme Court of Nova Scotia:[6]

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

[69] Hawkins was applied in this court in R v Wilson,[7] where a majority (Fitzgerald P and Lee J) quashed a conviction of attempted murder where the jury had been denied the assistance of medical evidence to decide whether the appellant intended to kill.  The medical evidence would have been to the effect that the appellant had a psychiatric condition which was a volatile combination of an anti-social personality, brain damage from a head injury and alcohol dependency, resulting in a psychiatric disability which “manifested itself erratically and spontaneously by intermittent loss of control, which could occur by only slight provocation …”.[8]

[70] Therefore the respondent is correct in agreeing that the evidence of Ms Perkins and Dr Sundin was relevant to the question of intent.

[71] In the summing up, the trial judge explained the elements of each of the relevant offences together with the defence of insanity under s 27.  Her Honour then extensively detailed the evidence, including that of Ms Perkins and Dr Sundin, before concluding with a summary of the respective arguments.  Her Honour encouraged the jury to determine whether the elements of the offence of attempted murder were established before considering the issue of insanity, although in Hawkins, the High Court observed that in principle, the question of insanity falls for determination before the issue of intent.[9]

[72] Her Honour clearly instructed the jury that an intention to kill the complainant was a necessary element of the offence of attempted murder which had to be proved by the prosecution.  The jury was told that to be satisfied of this element, an inference of an intention to kill had to be the only reasonable inference open on the evidence which the jury accepted.  In the course of explaining the element of intention, her Honour went to the subject of intoxication and directed the jury in that respect as follows:

“Let me say something about intoxication and the interplay between intoxication and intent.  There is evidence, which you might accept, that the defendant was intoxicated when the incident occurred.  This is relevant to intent.  Intoxication, whether complete or partial, may be regarded by you for the purpose of ascertaining whether such an intention, in fact, existed.  The fact that he was intoxicated, and all the other evidence of his state of mind, including the evidence you’ve heard from the experts, may be regarded, for the purpose of ascertaining whether the intent, in fact, existed.

If, because of the evidence as to the effect of intoxication or otherwise, you’re not satisfied beyond reasonable doubt that Mr Huni did, in fact, form the necessary intent, you must find him not guilty of attempted murder.  The evidence that he was intoxicated will not, itself, entitle him to a verdict of not guilty, because a person, when intoxicated, may form the necessary intent, and one who’s formed the necessary intent doesn’t escape responsibility because intoxication has diminished his power to resist the temptation to carry it out.  However if, because of the evidence as to the effect of the intoxication or otherwise, you’re not satisfied beyond reasonable doubt that Mr Huni did, in fact, form the necessary intent, you must find him not guilty of this offence.  It’s for the prosecution to satisfy you beyond reasonable doubt that, although intoxicated, the defendant did, in fact, have the requisite intention.”

(Emphasis added)

[73] Her Honour then directed on the other elements on the charge of attempted murder before directing the jury about unwilled acts.  The jury was then instructed on the elements of the alternative charge of doing grievous bodily harm with intent to do so.  As to that element of intent, the jury were instructed that:

“The prosecution must also prove that the defendant actually had a subjective intent to achieve the desired result.  That is, to do grievous bodily harm.  And here, again, you must consider the effect of his intoxication, if you find he was intoxicated, on that intent and the state of mind, and that his act was voluntary.”

[74] Her Honour then directed about the possibility of a conviction of another offence, namely doing grievous bodily harm and upon the further count on the indictment (the unlawful use of a motor vehicle).

[75] After those directions, the jury was instructed on the defence of insanity.  In this respect the instructions began:

“So let me go on to the defence that’s taken up quite a bit of time in this trial, and that’s the defence of insanity.  If you’re satisfied beyond reasonable doubt that the defendant committed one of the offences with which he’s been charged, you’ll need to consider the effect of the evidence about his state of mind.  Every person is presumed to be of sound mind, that is, sane, and to have been of sound mind at any time which comes in question until the contrary is proved.  The defendant contends that he was not of sound mind when he did the things which constitute the offences with which he’s been charged.

He must satisfy you of this fact, but does not have to do so beyond reasonable doubt …”

[76] The jury was then given directions as to s 27 after which her Honour said:

“Now, you’re not obliged to accept the opinions of the psychologist Meg Perkins, or the psychiatrist, Dr Josephine Sundin, but you should evaluate their evidence having regard to all of the evidence and the circumstances which are relevant to Mr Huni’s state of mind.”

Her Honour explained the relevance of intoxication to this issue as follows:

“Now, this defence does not apply to the case of a person who has, to any extent, intentionally caused himself to become intoxicated, whether in order to afford excuse for the commission of the offence, whether or not his mind is disordered by the intoxication alone, or in combination with some other agent.”

Lastly, when directing on the defence of insanity, her Honour said:

“I will later remind you of the specifics of the expert evidence that you should consider in respect of this defence raised by Mr Huni.”

[77] Her Honour’s account of the evidence then followed and continued during the next day of the trial.  The evidence of the experts was detailed to the jury at the conclusion of that part of the summing up.  Nothing was then said to identify the issue or issues for which that evidence could be relevant.

[78] The summing up concluded at about 12.30 pm on that day.  At about 3.00 pm, there was a note from the jury with the question:  “is planning required to demonstrate intent?”, on which the jury received a direction a few minutes later.  They were told that no planning need be demonstrated and that the requisite intent might have been formed “in a sudden flash of temper”.

[79] There were some further questions from the jury which were answered by further directions given on that afternoon.

[80] On the following afternoon, there were questions from the jury as follows:

“A defence based on mental incapacity or mental infirmity or mental disease is negated where there is evidence of voluntary intoxication of alcohol at the time of the offence’.  Is this a true statement?  Please clarify the relationship between voluntary alcohol intoxication and mental infirmity as it applies in the event of a criminal act.  Is this a matter of law as well as evidence?”

Her Honour read back to the jury the first of the questions within that note and then told the jury that:

“Broadly … [t]hat is correct.  But I’m going to read you the sections from the Criminal Code, just so you know exactly what they do provide”.

Her Honour then read ss 27 and 28 to the jury before explaining that:

“If [there was] a cumulative effect of the alcohol, then it couldn’t be said that it’s the mental disease or natural mental infirmity that has deprived the person [of a relevant capacity].  It must be the case that it is the state of mental disease or natural infirmity only, and not the effect of voluntary intoxication, that has taken away any of the capacities.  So if there is a cumulative effect of the alcohol, then it’s not that the defence is negated, it’s that defence has not been proved by the defendant.  So that is the law in the area.”

[81] This question from the jury indicates that at least some of the jury had not rejected the evidence of Ms Perkins.  Having regard to what her Honour confirmed about the contributing effect of the appellant’s intoxication, this redirection is likely to have assisted the jury to reject a defence of insanity.  The jury reached their verdicts about 40 minutes later.

[82] It is likely that the jury deliberated in the sequence which had been directed by her Honour, which is to say that they had concluded that there was an intention to kill before they considered the question of insanity.

[83] The question then is whether the jury may have not understood the use to be made of Ms Perkins’ evidence, if they did not reject it, on the issue of intent.  The jury was told that they could have regard to the evidence of the experts in considering the question of intent.  But that was said in the context of a direction about what was described as “the interplay between intoxication and intent”.  Each of the experts had said something about the contribution of the appellant’s intoxication to the relevant events.  This general reference to “the evidence you’ve heard from experts” did not identify the particular relevance of the opinion of Ms Perkins, if the jury did not reject it, that the appellant was in a dissociated state and without the capacity to understand what he was doing or to control his actions.  Instead, those things were discussed only in the course of the directions about the defence of insanity.  This is likely to have contributed to an impression on the part of the jury that Ms Perkins’s evidence in that respect had to be considered only in relation to the insanity issue which had “taken up quite a bit of time in this trial”.

[84] The jury was rightly instructed that they had to consider the evidence of the experts on that issue of insanity.  As to intent, they were told that it was permissible, although not necessary, to do so.  Yet they were required to consider that evidence (in so far as they had not rejected it) on the question of intent.  And when the jury was redirected as to ss 27 and 28, an impression that Ms Perkins’s evidence of relevant incapacities was relevant only to a defence of insanity is likely to have been fortified.

[85] The work of both the judge and the jury in this case was undoubtedly complicated by the appellant not being legally represented and by the way in which, for much of the trial, he conducted his defence.  But again that is likely to have obscured the relevance of Ms Perkins’s evidence to the issue of intent, absent a clear and specific instruction about it.

[86] In my conclusion, the jury was not adequately directed upon the relevance of the expert evidence, most importantly the evidence of Ms Perkins, on the question of intent.  What remains to be considered are several arguments made by the respondent which were apparently directed to the proviso under s 668E(1A).

[87] The respondent submitted that the evidence of Ms Perkins was relatively weak:  that it was general in nature and was given without a consideration of much of the evidence which would be relevant for the formation of her opinion.  It is submitted that in contrast, Dr Sundin’s evidence was more detailed and based upon a more complete factual basis.  In this respect, the respondent refers to the observation of the High Court in Hawkins that evidence which falls short of establishing a relevant mental incapacity “may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances”.[10]

[88] These criticisms of the evidence of Ms Perkins’s evidence are valid and, of course, her evidence has to be considered with that of Dr Sundin.  But the question is not, as it would be in a civil trial, which opinion is more likely to be correct.  It is whether the opinion of Ms Perkins must be rejected.  It was given by a qualified and independent witness.  Her evidence was in many respects unfavourable to the appellant and was given in measured terms.  I am unable to reject it.

[89] The respondent makes a further submission about whether there was any substantial miscarriage of justice, which was based on what was said in Hawkins that:[11]

“[I]f there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by [s 27], that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.”

It is submitted that this meant that the jury should not have been directed on the issue of voluntariness, so that the summing up was unduly favourable to the appellant.  However, in my view her Honour was correct to direct the jury about this question because of the appellant’s evidence that he was “in and out of consciousness”.  In any case, unduly favourable direction on one issue could not remedy the injustice of an inadequate direction on a distinct and essential issue.

[90] It is submitted that the jury must not have accepted the evidence of Ms Perkins that the appellant was in a dissociative state because they concluded that the relevant acts of the appellant were acts done by the exercise of the appellant’s will.  That submission does not accurately characterise the evidence of Ms Perkins.  Her opinion was not that the appellant was in a state where these acts were occurring independently of the exercise of his brain.  Her opinion was that the operation of his brain was affected by his emotions taking over his cognitive functioning, so that he was acting as directed by the brain but without reference to the consequences of his acts.

[91] To apply the proviso, I would have to be satisfied, upon the whole of the evidence, that the appellant was guilty of attempted murder.[12]  I am not persuaded that the evidence proved that the appellant did intend to kill.  The evidence of Ms Perkins raised the possibility that the appellant was in a dissociative state which she described.  If so, the appellant’s conduct does not compel the inference that he intended to kill.  In my conclusion, the proviso cannot be applied.

[92] I would allow the appeal and set aside the conviction of attempted murder and order a retrial on that count and the alternative count to it upon the indictment.