R v Lee[2014] QCA 36

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  For the reasons given by Mullins J, I joined in the orders made by this Court on the hearing of the appeal.

[2] GOTTERSON JA:  I agree with the reasons prepared by Mullins J for the orders made.

[3] MULLINS J:  The appellant was convicted after trial before a jury of one count of rape.

[4] The appellant appealed against his conviction on the basis of what occurred at the commencement of the trial, rather than the trial itself.  The grounds of appeal were:

(a) the learned trial judge erred in failing prior to the arraignment of the appellant on 22 August 2013 to undertake the procedure mandated by s 613 of the Criminal Code 1899 (Qld) to determine the fitness of the appellant to stand trial;

(b) the trial judge erred in failing after arraignment on 23 August 2013 to undertake the procedure mandated by s 645 of the Code to determine the fitness of the appellant to stand trial;

(c) alternatively, the trial judge erred on 23 August 2013 in failing to discharge the jury and adjourn the trial of the appellant.

[5] On the hearing of the appeal, the court made the following orders and indicated reasons would be published later:

1.Appeal against conviction allowed.

2.Verdict of guilty set aside.

3.Retrial ordered.

[6] These are reasons for making those orders.

The charge

[7] The appellant was charged that on or about 5 September 2010 he raped the complainant who was then 16 years old.  There was no dispute that the appellant digitally penetrated the vagina of the complainant. The issues at trial were whether that occurred with the consent of the complainant or whether the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting.

[8] The solicitors had referred the matter on 7 February 2011 to the Mental Health Court.  On 15 March 2012 the court ruled that, there being a reasonable doubt that the appellant committed the alleged offence (on the basis of the issue of whether the appellant had the honest and reasonable belief about the consent of the complainant), the question of unsoundness of mind was not determined and it was determined that the appellant was fit for trial.

The arraignment

[9] The charge did not proceed to trial until 22 August 2013.  Before the jury panel was brought into the courtroom, experienced counsel for the appellant raised with the trial judge the appellant’s concern about the composition of the jury panel and that the appellant did not believe he was of sufficient mental capacity at this stage to proceed to trial.  Counsel stated:

“Now, my difficulty is that I’m just not able to get instructions from him to proceed today.  I can’t state that I’ve been sacked, I can’t state that I have found myself in a position where I have to seek to withdraw because of any sort of conflict that has arisen and I’m not suggesting that.  I’m really never been in this position before, I just – I’m just not in the position to proceed, I can’t – there are matters I have to raise with him and I’m not finding it possible to take my final instructions.  He’s asked that he address you and perhaps if he’s allowed to do that I’ll be able to find out my position at the same time.”

[10] The appellant then had an exchange with the trial judge.  The appellant asserted that he was not getting “a fair due process” and then expanded on that:

“Because I have special prosecutors who have prepared my legal defence.  I’m quite willing to qualify what a special prosecutor is.”

[11] The following exchange then occurred:

“DEFENDANT:Your Honour, are you a special Prosecutor?

HIS HONOUR:I don’t need to be.

DEFENDANT:Are you ---

HIS HONOUR:Now, if you don’t want [defence counsel] to act for you you’ll have to represent yourself.  Do you understand that?

DEFENDANT:I do, your Honour.  I’m happy with [defence counsel] at the moment representing me.

HIS HONOUR:Yes, well, he tells me that he is having some difficulty getting instructions from you.

DEFENDANT:I think the fact that I’ve just become aware that I had a special Prosecutor or a special Prosecutor lawyer prepare my defence I had – I take exceptional – exceptional – I have a major issue with that, your Honour.

HIS HONOUR:Yes.  Well, I don’t see that as having any relevance to proceeding with the trial and you should – you should make up your mind now whether you’re going to keep [defence counsel] for the trial, because I propose to get a jury panel in and select a jury for your trial.  So are you going to keep [defence counsel]?

DEFENDANT:Yes, I am, your Honour.”

[12] The trial judge then asked for the jury panel to be brought in.  The appellant’s counsel did not pursue any adjournment of the trial at that stage.  The appellant had a further request which was to be seated away from the dock and that was refused by the trial judge who asked again whether the appellant was prepared to have defence counsel represent him and the following exchange occurred:

“DEFENDANT:If [defence counsel] is not a special Prosecutor I’m very happy with that.

HIS HONOUR:Yes, well, he’s not a special Prosecutor, as I understand it.  Thank you.”

[13] It is curious that the trial judge could assure the appellant that his counsel was “not a special Prosecutor” when it was not apparent from the preceding exchanges as to what the appellant meant by the expression “special Prosecutor”.

[14] The jury panel was brought in and the appellant was arraigned and pleaded not guilty.  After the jury was empanelled for the trial of the charge, the trial judge made opening remarks and the prosecutor opened the case for the prosecution.  The trial was then adjourned until the following day.

The second day of trial

[15] There was a delay in commencing the trial on the second day, as the appellant’s lawyers had organised for him to be seen by psychiatrist Dr Flanagan whose report dated 7 December 2010 had been the basis of the referral to the Mental Health Court.  The trial judge was provided with a copy of that report and a copy of the report commissioned by the Mental Health Court from psychiatrist Dr Grant dated 7 April 2011.

[16] Dr Flanagan had expressed in his 2010 report that the appellant was “perfectly fit to plead in the state he was in when I examined him (on medication)”.  Dr Flanagan had examined the appellant for that report on 6 and 17 December 2010.  Dr Flanagan diagnosed the appellant with bipolar affective disorder (Type 1) and at the time of the incident with the complainant, depending on whether the erotic belief that he expressed was delusional or not, he was either manic or hypomanic.  In December 2010 the appellant was taking an anti-psychotic/mood stabiliser.

[17] Dr Grant noted in his report that the appellant gave a history consistent with suffering from bipolar affective disorder and considered, from the history given by the appellant, that at the time of the incident with the complainant he was suffering from hypomania.  Dr Grant considered that at the time of the report the appellant was well and able to plead, instruct his counsel and endure a trial with no significant adverse affects, and was therefore fit for trial.  Dr Grant also expressed that the appellant required ongoing psychiatric treatment for his bipolar affective disorder and would best be managed on a mood stabilising medication.

[18] The appellant’s counsel informed the trial judge of what he understood the appellant meant by referring to a special prosecutor:

“Your Honour will remember at the outset that my client was concerned about me being a special prosecutor.  I don’t know if you understood what that meant, I certainly didn’t.  It – to his mind, a special prosecutor is somebody that’s actually employed by the government to secretly assist the Crown in proceedings such as this.  Now, you correctly pointed out that I’m not a special prosecutor and I’ve told my client the same thing, but I’m still dealing with that sort of mentality.”

[19] The appellant’s counsel explained that he and his instructing solicitor had ascertained from the appellant that he had taken himself off his medication approximately two months ago because “he wanted to be more clear minded for this trial”.  Defence counsel also conveyed Dr Flanagan’s opinion that the appellant was temporarily not fit for trial, that he could not rule out the fact that the problem was caused by the appellant being off his medication, and believed he should be re-assessed in about two weeks’ time.

[20] The prosecutor referred the trial judge appropriately to the decision in R v Ogawa [2011] 2 Qd R 350, particularly at paragraphs [109] to [112], and submitted that the threshold question for the trial judge was to decide “whether there is a real question as to whether it appears to be uncertain that the defendant is incapable of understanding”.

[21] Dr Flanagan was then called to give evidence on the voir dire by telephone.

[22] Dr Flanagan expressed his opinion on the appellant’s capacity to stand trial when he assessed him on that day in these terms:

“My opinion is that he’s not fit to stand trial.  He – he is actually experiencing both auditory hallucinations and paranoid delusions.  He said that during the course of the prosecutor’s opening address, he was constantly distracted by voices that he believed the police were projecting by some kind of a device in his glass dock, and these voices were accusing him and interrogating him so that he was unable to concentrate on what the prosecutor was saying.  And, moreover, he developed the idea that his solicitors weren’t on his side and, in particular, one of them was a mole for the Crown prosecutor.”

[23] Dr Flanagan considered that the appellant’s incapacity was temporary as a result of his not being on his medication, particularly due to the stressful situation of the trial and stated “I think it’s quite likely that if he resumes his medication within a week or so, these psychotic symptoms will go away”.

[24] During cross-examination Dr Flanagan stated that the appellant was cooperative, spoke spontaneously and at length and was responsive to his questions during the assessment that morning.

[25] Dr Flanagan conveyed what the appellant had reported to him about the first day of the trial:

“Yes.  He said – he said in the first instance that he found it very stressful to be confined to what he called a glass cage or a fish tank and not be in close contact with his lawyers, and that he felt that would make it look to the jury that he was guilty.  Then he went on to say that he’d become suspicious about both his solicitors, he’d been unhappy about the constitution of the jury, and when he – after he – when – while he was in the dock and getting these hallucinations which were being fired at him in a hallucinatory fashion by – he believed by the police, he developed the idea that his barrister in particular was a plant; that was he was someone employed by the – by the Crown, and to act as if he was his defence but, in fact, was there to trap him.”

[26] When questioned further about whether the appellant had given any information about what had given rise to his delusion or hallucination, Dr Flanagan responded:

“There are two distinct things here.  The hallucinations that he was hearing mainly in the witness-box, and there was the delusions, or apparent delusions that his – his solicitor was a plant.  He’d heard – he’d heard from the voices last night that he could expect after my interview that when he went back to the barrister’s rooms there would be another person there who was also a plant.  Yes, I’m not quite sure if that answers your question, but you can ask me again if it didn’t.”

[27] When pressed about whether the appellant had identified anything “coming specifically from his lawyers”, Dr Flanagan stated that the appellant reported that “he’d apparently had an interview with his lawyers yesterday during the lunch break and he’d been unhappy about the way they were questioning him, and became increasingly suspicious about their motivations.”

[28] Dr Flanagan accepted that his advice about the appellant’s auditory hallucinations and paranoid delusions was based on the appellant’s self-reporting.  He conceded that the appellant did not appear to be “overly psychotic” during his interview with him.  Dr Flanagan noted that when he advised the appellant about the need for him to resume taking his medication, the appellant acknowledged that he had to resume taking it and had taken a tablet the previous evening.

[29] In re-examination, Dr Flanagan confirmed that it would take between a few days and a week on medication for the appellant to stabilise.

[30] In response to questions from the trial judge, Dr Flanagan noted that the appellant seemed quite motivated to take his medication.  The trial judge asked Dr Flanagan whether the appellant could be fabricating what he had expressed about hallucinations and delusions and Dr Flanagan agreed that could be the case.

[31] In further questioning by the prosecutor about the cause of the appellant’s hallucinations, Dr Flanagan expressed the opinion that it was very likely they had been precipitated by the stress of being in the dock and being faced with prosecution, stating that “stress is well known to precipitate psychotic symptoms in people who are not on their medication.”

[32] The prosecutor returned to Dr Flanagan’s observation that the appellant did not appear to be psychotic that morning and Dr Flanagan expanded on that: 

“Well, he didn’t – he didn’t give any outward evidence of being psychotic.  He wasn’t thought disordered, he wasn’t disorganised.  He gave his history very coherently, but he was giving me a history of hallucinations and delusions.”

The threshold question

[33] Because the appellant’s trial had commenced the previous day, s 645 of the Code was relevant:

“(1)If on the trial of any person charged with an indictable offence it is alleged or appears that the person is not of sound mind, the jury are to be required to consider the matter, and if the jury find that the person is not of sound mind, the finding is to be recorded, and thereupon the court is required to order the person to be kept in strict custody, in such place and in such manner as the court thinks fit, until the person is dealt with under the Mental Health Act 2000.

(2)A person so found to be not of sound mind may be again indicted and tried for the offence.”

[34] An allegation had been raised on the second day of the trial on behalf of the appellant that he was unfit to proceed with his trial.  It was therefore for the jury to decide that issue under s 645 of the Code, if the trial judge found in the appellant’s favour on the threshold question, as explained in Ogawa at [111]:

“Once the Court becomes aware of ‘any reason’ whereby ‘it appears to be uncertain’ that a defendant ‘is capable of understanding the proceedings at the trial’ (for State offences), or ‘is [fit] to be tried’ (for Commonwealth offences), the trial judge should determine the threshold question as to whether there is ‘a real question’ as to whether it appears to be uncertain that the defendant is either capable of understanding the proceedings at trial, or fit to be tried, as the case may be.”

[35] In dealing with the threshold question, after summarising the events that had occurred in the trial, the opinions in the written reports of Dr Flanagan and Dr Grant and the evidence from Dr Flanagan on the voir dire, the trial judge concluded:

“I am concerned about the difficulty of Mr Lee ever being brought to trial on this charge. There is no assurance, or no assurance that satisfies me that he will, if he has started to take his medication, continue with that medication. It seems to me possible that Mr Lee could, when facing a trial again in the future, go off his medication.

However, I consider there is an even more fundamental problem here with respect to this application this morning - which I take to be an application to either adjourn the trial for later in the sittings, or to adjourn it and discharge the jury with a view that a trial come on at some time in the future - that I consider Mr Lee's claims of [defence counsel] and his solicitor to be plants, and these auditory hallucinations and paranoid delusions are fabrications by him to avoid being prosecuted on this trial.

Clearly, the evidence I've seen shows that he has a good grasp of the allegations against him and what he says happened. There does not appear to me to be, despite there being times when he may have been depressed about life's events - there are no other examples that to my mind give credibility to what he is saying about the jury composition, the dock, and his legal representation.

Dr Flanagan accepted that his opinions were based on the veracity of what Mr Lee was telling him. I do not accept that what Mr Lee was telling Dr Flanagan is genuine. Certainly, I accept he may be feeling the stress of facing a trial. However, that does not mean the trial should not proceed. I - I am satisfied Mr Lee is capable of understanding the proceedings and is fit to be tried. However, what has happened yesterday and today with regard to the complaints about jury composition and [defence counsel] and his solicitor's position, and about the dock concerns me to the extent that I have come to the view that Mr Lee's bail should be revoked.”

Was there an error?

[36] It was submitted on behalf of the appellant that this was not a case where the medical evidence was such that the trial judge could safely conclude that the appellant was feigning symptoms (as had been the case in Ogawa at [108]-[109]).  The question as to whether or not the appellant might be feigning symptoms was one properly for a jury charged with the task of determining fitness to consider.  On the basis of the material that was brought to the trial judge’s attention on the voir dire, a jury might reasonably have concluded that the appellant was not fit to be tried at that stage and therefore s 645 of the Code required the trial judge to charge the jury with the task of considering the soundness of mind of the appellant.

[37] The respondent disputed the evidence of Dr Flanagan was sufficient to require the issue of the soundness of mind of the appellant to be determined by the jury under s 645 of the Code.  In the alternative, even if Dr Flanagan’s evidence raised a real question as to the appellant’s fitness for trial, no jury properly instructed could have come to the conclusion that the appellant was unfit for trial.  In accordance with Kesavarajah v The Queen (1994) 181 CLR 230, 245, there was no error in the trial judge withholding the question from the jury.

[38] The test applied under s 645 of the Code is the same test that is applied under s 613 of the Code where there is an issue about a defendant’s mental capacity before the trial commences:  Kesavarajah at 244.  The minimum standards required for capacity to understand the proceedings at the trial and to make a proper defence were stated by Smith J in R v Presser [1958] VR 45, 48 and summarised in Kesavarajah at 245:

“In Reg. v. Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well‑known explanation given by Alderson B. to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.” (footnotes omitted)

[39] On the basis of the appellant’s self-reporting to Dr Flanagan, his ability to follow the course of the proceedings at the trial was in issue, if he were distracted by the hallucinations or delusions.  Dr Flanagan considered that the appellant’s reporting of hallucinations and delusions was consistent with being off his medication.  Although Dr Flanagan was prepared to accept that it could be the case that the appellant was not being truthful about his hallucinations and delusions, Dr Flanagan’s assessment was that the appellant was unfit for trial, until his medication stabilised him.  There was no evidence given by the appellant on the voir dire.

[40] It is apparent that the trial judge formed a negative impression of the appellant over a period of two days, but it was not a case such as Ogawa.  In Ogawa there had been extensive opportunities for the trial judge to form an opinion about the defendant that was consistent with the expert medical evidence that the defendant did not suffer from a mental illness which impaired participation in the trial process.

[41] Instead of deciding the threshold question of whether there was a real question about the appellant’s incapacity which should go to the jury, the trial judge decided the ultimate question by deciding a factual question about the appellant’s credit.  They were questions for the jury to decide on the evidence that would have been adduced before the jury on the issue of whether the appellant was fit for trial.  In the light of the evidence of Dr Flanagan on the voir dire, this was a case where the threshold question could not have been answered against the appellant.  The issue of his incapacity should have been given to the jury as required by s 645 of the Code.  An alternative course, on the basis that the incapacity was temporary until the medication took effect, may have been to discharge the jury, adjourn the trial, and make any bail granted to the appellant conditional on his taking his medication.  The fact that the question about incapacity may have been brought on by the appellant’s conduct in ceasing his medication before the trial did not change that it was a question about incapacity.

Conclusion

[42] The error of the trial judge in deciding the question that should have gone to the jury under s 645 of the Code or failing to adjourn the trial in the circumstances resulted in a miscarriage of justice:  Eastman v The Queen (2000) 203 CLR 1 at [319].  As the error was patent in respect of the events on the second day of the trial, it is unnecessary to deal with the alternative ground of appeal in relation to the events that occurred prior to the arraignment.