R v Smith (aka Stella)

This case concerned an appeal against a conviction for murder. At trial, the appellant had sought to rely on the defence of diminished responsibility. The experts called were psychiatrists who could give an opinion on the ultimate issue: whether the appellant’s relevant capacities were “substantially impaired” at the time of the offending. However, on appeal, the Court (Davis J with whom Sofronoff P and Bond JA agreed) held that the doctors’ evidence was misleading and inadmissible as it was given without reference to the correct legal test for “substantial impairment”. Further the failure of the trial judge to direct the jury with any specificity on the meaning of the term “substantial impairment” meant a miscarriage of justice had occurred. The Court allowed the appeal, set aside the conviction and ordered a retrial.

Sofronoff P and Bond JA and Davis J

5 May; 29 June 2021

Background

The appellant appealed against his conviction for the murder of Bradley Lester. [3].

The issue on appeal was whether the appellant was in a state of diminished responsibility so that he was guilty of manslaughter rather than murder. [7]. In particular, “whether the appellant’s capacity to control his actions or his capacity to know that he ought not do the act which killed Mr Lester were ‘substantially impaired’ by an ‘abnormality of the mind’ at the time of the killing”. [10].

In respect of this issue at trial, the appellant called a psychiatrist, Dr Grant. In response, the Crown called a psychiatrist, Dr Phillips. [9].

Dr Grant gave evidence that the appellant’s psychiatric condition substantially impaired his judgment and his ability to control his actions. As to the meaning of “substantial”, Dr Grant gave evidence that he was using it in the same manner as to “have a substantial meal” or to “earn a substantial salary”. [11].

Dr Phillips’ evidence was that the appellant’s psychiatric condition did not substantially impair any one of the appellant’s relevant capacities at the time of the offending. [12]. Dr Phillips referred to “substantial impairment” as the “higher level of the threshold” and of the impairment having to be “severe”. [12], [13], [46].

At the conclusion of the evidence, counsel agreed with the trial judge that it was unnecessary to direct the jury as to the meaning of substantial. The trial judge’s direction followed the Benchbook direction. [16], [17].

Diminished responsibility

Diminished responsibility is a partial defence. [29]. It is contained in s 304A Criminal Code 1899.

Justice Davis explained that “[s]ection 304A was intended to operate where there is no defence of insanity but there is an abnormality of mind affecting the accused which reduces the offence from murder to manslaughter. That reduction occurs when the abnormality ‘substantially’ affects one of the three capacities of mind identified in s 304A(1)”. [30].

Decision of the Court of Appeal

Justice Davis, with whom Sofronoff P and Bond JA agreed, held that a miscarriage of justice had occurred. [55]. This was for two reasons: (i) the evidence of the doctors was given without reference to the proper legal test and (ii) the trial judge failed to direct the jury as to the meaning of substantial. [54].

The evidence given by the doctors

Justice Davis held that the evidence given by the doctors as to the meaning of “substantial” was misleading and inadmissible as it was given without reference to the correct legal test. [49].

The doctors were able to give expert evidence as to whether the effect of the appellant’s condition on his relevant capacities was “substantial”. [41]. However, in order to do so, the “legal concept of ‘substantially impaired’ … ought to have been properly explained to the doctors before they formed their opinions about the medical issues”. [47].

Justice Davis went on to explain that:

“They should have been asked to identify the facts supporting the opinion and to explain the reasoning by which their conclusion flowed from the facts proved so as to reveal that their conclusion was based on their expertise.” [47].

The trial judge’s direction to the jury

While acknowledging that the trial judge’s direction followed the Benchbook, Davis J held that the direction should have been tailored to the requirements of the case. [50].

In this case, the only “valid direction” was to instruct the jury to completely ignore the medical evidence. However, this approach would have entirely distorted the appellant’s defence. [52]. Therefore, it was not possible for the prejudice to the appellant to be cured by a direction to the jury. [53].

The Court allowed the appeal, set aside the conviction and ordered a retrial. [4], [56].

A Hughes of Counsel