Criminal law and procedure - Appeal - Appeal - Application for leave to appeal against conviction - Wilful murder - Mental condition of accused - Adjournment - Application to discharge jury and order psychiatric examination of accused - Criminal Law (Mentally Impaired Accused) Act 1996 (WA) - Fitness to be tried - Nature of inquiry - Whether reasonable prospect of success on appeal

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9, s 12

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230

R v Khallouf [1981] VicRp 38; [1981] VR 360

R v Presser [1958] VicRp 9; [1958] VR 45

R v Pritchard [1836] EngR 540; (1936) 7 C & P 303

R v Sexton [2000] SASC 276; (2000) 77 SASR 405

1 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction. The applicant was convicted of wilful murder on 19 September 2005. His appeal notice was filed on 7 October 2005. On 14 November 2005 the Court of Appeal Registrar ordered the time to file the Appellant's Case be extended to 10 February 2006. Even so that was not filed until 17 February 2006. On 27 February a consent notice that time be extended to 17 February was filed and that order then was made by Acting Court of Appeal Registrar Rayney on 27 February.

2 On 30 May 2006 I ordered that the application for leave to appeal be listed ex parte for hearing before me today, with a further order that the applicant's oral submissions be limited to not more than 15 minutes. In addition to the Appellant's Case therefore I have now also had the benefit of Mr Watter's oral submissions on behalf of the applicant.

"The learned trial Judge erred when she failed to uphold an application by the Appellant's trial counsel to abort the trial based upon the Appellant's medical condition such that there was a miscarriage of justice.

Particulars

1. In the course of the trial an issue as to the Appellant's mental condition was raised ('the issue');

2. The Court received evidence from a clinical nurse about the issue;

3. Such evidence was deficient in adequately dealing with the issue;

4. Further, a psychiatric assessment could have been undertaken the following day that could have properly determined the issue."

4 The circumstances, as presented in the Appellant's Case, are that during the course of the trial counsel for the applicant made an application to abort the trial based upon the applicant's inability to focus on the relevant issues concerning the trial, based possibly upon "some post-traumatic stress" suffered by the applicant. In dealing with this issue her Honour received evidence from a clinical nurse with the State Forensic Mental Health Service.

5 It is submitted that the clinical nurse was mistaken as to the reason she was required to do an assessment of the applicant, that she qualified her expertise by stating that she was a nurse and not a doctor but even so, based upon that evidence, her Honour determined that the applicant did not have a mental health issue. There was evidence before her Honour that a psychiatrist could have attended to the applicant the following day.

6 It is submitted that whilst her Honour may not have had the power to order a psychiatric assessment take place the evidence before the Court was that the applicant could have been assessed by a psychiatrist at Hakea Prison the following day. According to the submissions in the Appellant's Case, the Court was informed a seven-day hospital order would allow for a much fuller report as to the applicant's "mental state and if there [were] any underlying delusional ideas or whatever".

7 Notwithstanding the clinical nurse indicating to her Honour "that there could be underlying issues that may need ... a lot longer assessment" than she could provide that day, it is submitted that her Honour failed to properly consider the section in the relevant Act. No particular section is specified. The submission continues that, in refusing to abort the trial and have the applicant properly assessed, her Honour failed to adequately consider the provisions of the "Criminal Law (Mentally Impaired Defendants [sic]) Act 1996". Again no specific statutory provision is referred to.

8 Section 27(2) of the Criminal Appeals Act 2004 (WA) stipulates that leave to appeal must be refused on a ground of appeal unless that ground has a reasonable prospect of success. The application of that statutory test which must be given effect to according to its terms was explained by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, especially at [51] to [59].

9 The sole ground of appeal here asserts error in the trial Judge by what it expresses as her Honour's refusal to uphold an application by the applicant's trial counsel to abort the trial, so as to amount to a miscarriage of justice. It may be noted that the particulars do not go to the ground itself, they seem more to be directed to whether or not the trial should have been adjourned.

10 Furthermore, the gravamen of the submissions set out in the Appellant's Case and elaborated upon this morning assert error of law in that her Honour failed to properly consider the provisions of the relevant legislation. I note in passing that the Act is now called the Criminal Law (Mentally Impaired Accused) Act 1996.

11 By s 4 of that Act it applies in respect of any accused before any court exercising criminal jurisdiction. The relevant provisions for present purposes are as follows.

12 Section 9 deals with mental unfitness to stand trial. It provides:

"An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -

(a) unable to understand the nature of the charge;

(b) unable to understand the requirement to plead to the charge or the effect of a plea;

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge."

13 By s 10 an accused is presumed to be mentally fit to stand trial until the contrary is found under that Act. Section 11 deals with when the question of mental fitness may be raised. That section provides in the Supreme Court it may be raised before an indictment is presented or after an indictment is presented to the court against an accused and before a jury is sworn or at any time after a jury is sworn and during the trial of the accused.

14 Section 12 deals with the issue of deciding the question of mental fitness. That section reads:

(1) The question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.

(2) For the purpose of the inquiry the judicial officer may -

(a) order the accused to be examined by a psychiatrist or other appropriate expert;

(b) order a report by a psychiatrist or other appropriate expert about the accused to be submitted to the court;

(c) adjourn the proceedings and, if there is a jury, discharge it;

(d) may make any other order the judicial officer thinks fit.

(3) The judicial officer may make a report about the accused available to the prosecutor and to the accused, on such conditions as the officer thinks fit.

(4) The prosecution or an accused may appeal against a judicial officer's decision that the accused is not mentally fit to stand trial."

15 Section 14 provides that if any proceedings are adjourned under Pt 3 of the act the judicial officer may grant the accused bail or remand the accused in custody or make a hospital order under s 5.

"(1) This section applies if under the Bail Act 1982 a judicial officer refuses to grant bail to an accused.

(2) If the judicial officer suspects on reasonable grounds that -

(a) the accused has a mental illness (as defined in the Mental Health Act 1996) requiring treatment;

(b) the treatment is required in order

(i) to protect the health or safety of the accused or any other person; or

(ii) to prevent the accused doing serious damage to any property; and

(c) the accused has refused or due to the nature of the mental illness, is unable to consent to the treatment,

17 The section goes on to detail what a hospital order involves but pertinently to the present proceedings would have enabled her Honour to order that the applicant be made the subject of a hospital order for not more than seven days and in the course of that the applicant would have been subject to psychiatric examination.

18 As to the course of these proceedings and the substance of the application, the trial commenced on 12 September 2005. By the end of 13 September some eight prosecution witnesses had given evidence. It was on the morning of 14 September that counsel for the applicant raised this issue with her Honour.

19 It began when Mr Huggins, counsel for the applicant at trial, asked her Honour to make an order closing the Court because he wished to raise with her something which, as he put it, would affect the future conduct of the trial.

20 In response to a query from her Honour, he said that it had to do with the instructions he was receiving from the applicant and the discussions he was having with him. He said he did not think it was in the interests of justice that what was transpiring should be known to the public or published in open Court because it might affect some aspects of what might occur thereafter. He indicated that he did not wish to go into it any further than that.

21 Her Honour acceded to the application and closed the Court before hearing further from counsel in the absence of the jury. I should observe in passing that of course what had transpired to that point was also in the absence of the jury. Her Honour acceded to a request from counsel that they see her in Chambers and that was done prior to resuming in closed Court.

22 The transcript of the proceedings thereafter indicate that counsel said to her Honour that the applicant had been assessed by a mental health nurse called for the purpose of seeing him. Counsel told her Honour that he informed the applicant about 12.30 or 1 o'clock that a nurse would be coming to see him and that he should speak to her and he agreed to do so.

23 However, he had been unable to speak to the nurse before the nurse spoke to the applicant and so counsel had been unable to relay to the nurse what his particular concerns were. Counsel then went on to say that the assessment of the clinical nurse immediately after seeing the applicant was that she saw no overt matters that raised her attention.

24 He described briefly what he understood had transpired between them and also that he understood the nurse had spoken to the doctor on duty, Dr Brett, who indicated that a formal assessment could really only be made on a hospital order, which would have to be for a maximum of seven days. Counsel then went on to say:

"My main concern, your Honour, is that I have had two occasions now where things have had to have been turned around at the last minute. The first was on an occasion where a client of mine who was in custody, as was Mr Barry, gave me very clear instructions to proceed in a certain way in the Supreme Court and it was only some three to four months later before the matter was finally dealt with - when it was about to be dealt with that he was brought to the attention of psychiatric services and they said, 'This man is not fit to plead.'

On the second occasion, I had a client who was sent for assessment and spoke to Dr Patchett who was the acting head of clinical services. Dr Patchett spoke to him for three or four days and thought there was nothing wrong with this particular person and then suddenly on a particular cue word within the seven day assessment discovered that the man was unfit to plead. Those are the concerns I have, your Honour.

I simply am very uncomfortable and I have told Mr Barry this. He is aware of my concerns. I believe the clinical nurse basically can only say, 'I saw him for 25 minutes. I saw nothing outwardly wrong. However, things are not always clear after 25 minutes'. I can simply say that as an officer of the court I would not have raised this if I did not have real concerns."

Asked then what his proposal as to how they should proceed was, counsel told her Honour that his proposal was to discharge the jury and have the applicant remanded for a seven-day assessment under a hospital order.

25 The State prosecutor, in his submissions to her Honour, said that the application was inappropriate, at least at that juncture, and that notwithstanding Mr Huggins' concerns there was simply no reason for any particular concern to be had.

26 He submitted it would be an extreme measure to discharge the jury on the basis there might be something there depending upon what the application came to. That would be an extreme and grave step to take without at least further inquiry.

27 The difficulty with that was (it was suggested) that further inquiry would take some time and was really begging the question. His submission was that on the face of the material currently before her Honour there was nothing which would give any reason for concern. There was no overt concern following the professional examination, and in the history of the proceedings to that point no indication of any lack of fitness. Her Honour inquired whether she should hear from the clinical nurse. Counsel acceded to that suggestion and she did so.

28 The clinical nurse was Ms Westworth who told her Honour that she had been a Community Mental Health nurse for the last 10 years and had worked for the State Forensic Service for the last two and a half years. She also had a postgraduate degree in working with people with a serious mental illness.

29 She explained to her Honour that she had been asked to do an assessment because there had been some concerns about the applicant being agitated and raising his voice. She did some background searching before she came to the Court, and she spoke to the mental health nurse in Hakea Prison.

30 She had been informed that the applicant had not come to attention there previously at all. There had been no previous mental health treatment or anything with a psychiatrist. Ms Westworth said that she spoke to the applicant for 20 or 25 minutes and came to the conclusion that overtly there was no mental health issue; there were no paranoid ideas. She did not feel as though there was any mental health sort of delusional paranoid idea. The applicant did not express any ideas of self-harm or his mood was quite relevant. He had expressed anxiety, being afraid of being in Court, but she had no concerns after her assessment. She went on to say she could understand that after that short amount of time of seeing someone there could be underlying issues that may need a lot longer assessment than she could provide that day.

31 Her Honour then asked Ms Westworth a number of questions. She asked whether the applicant seemed to understand what he was in Court for. Ms Westworth said yes, and added that when "they" do court assessments, especially such as at the Central Law Courts, they are the things that they are trying to find out - whether people are able to follow the Court direction and why they are in Court, and she did ask all relevant questions and she felt he was able to do that. The transcript records the following exchanges:

"JENKINS J: So he understood what the purpose of the trial was as far as you were concerned?

WESTWORTH, MS: Yes.

JENKINS J: In the course of your discussions with him did he seem able to follow your conversation and your questioning?

WESTWORTH, MS: Appropriately, yes. I had no concern.

JENKINS J: You have said that he had some complaints about what had occurred during the course of the trial. Did they seem to reflect a misunderstanding of anything that had gone on during the course of the trial or not?

WESTWORTH, MS: I felt it more a disappointment in the sort of things that he had expected that hadn't occurred; more that kind of labour really.

JENKINS J: Did he seem to understand the evidence that had been led?

WESTWORTH, MS: I didn't really go into that. I was there to assess his mental state. I don't know anything about the trial or anything really.

JENKINS J: What are the options for further investigation? Mr Huggins has mentioned one, the hospital order. If he's remanded simply as he has been, in custody, is there any facility there for him to be - - -

WESTWORTH, MS: Yes, there are. There are psychiatrists who are in Hakea. That's why I was surprised if there had been any ongoing concern that he would have seen a psychiatrist but I checked with the nurse. He hasn't been seen by anybody, but there are psychiatrists who go to Hakea daily who would be able to do an assessment, I'm quite sure."

32 Neither counsel wished to ask Ms Westworth questions, other than a few from Mr Huggins as to how often the psychiatrist visited Hakea. It was established that Ms Westworth understood a psychiatrist visited daily. Asked whether there was anything further that she wished to say, Ms Westworth added:

"Only that, you know, it's difficult to fully - like we said before, I'm a nurse, I'm not a doctor. I've got a lot of clinical experience. If I had any concerns about Mr Barry's mental state at this point, you know, I would have expressed them. I understand, like, in a seven day hospital order he would have, you know, full access to a psychologist, psychiatrist, and that would bring back a much fuller report as to anybody's mental state and if there are underlying delusional ideas or whatever."

33 Ms Westworth confirmed that she had been a registered Mental Health Nurse since 1992.

34 What her Honour had before her therefore was that information and what she had been told in Chambers. As to that, information given to her in chambers (unsatisfactorily) by way of something said in the absence of the applicant and not a matter of record, it is known only because of what her Honour said about it prior to sentencing, at t/s 434. She explained it as follows:

"The situation was that during the course of the trial I saw Mr Barry's counsel in chambers with Mr Dempster. At that time he requested more time to take instructions from Mr Barry because he said that there was tension between the two of them and in his view that was resulting from Mr Barry having trouble focusing on what he regarded as being the relevant issues in the trial.

I allowed further time for counsel to take instructions from Mr Barry, then saw Mr Barry's counsel again in chambers with Mr Dempster and I was then advised that the time had been useful but that counsel was still having difficulties getting Mr Barry to focus on what he believed were the relevant issues and that he believed that Mr Barry may be suffering some post traumatic stress. His counsel told me at that time that he doubted that the trial ought to continue because of those issues but that Mr Barry wished the trial to proceed and wished for Mr Huggins to continue as counsel during the course of the trial.

It was in that context that it was arranged for Mr Barry to see the person who I will describe as the mental health nurse from the Central Law Courts. I received a report from her in closed Court which led me to determine that Mr Barry did not have a mental health issue justifying me taking any action at that time. Mr Huggins did maintain his view that he thought the trial should be adjourned to have these issues investigated but I understood from what he was saying that that was his personal view and that Mr Barry remained of the view that he wished the trial to continue."

35 I return now to her Honour's ruling made on 14 September (at t/s 213 - 214):

"My current view is that the trial should proceed. There has not been a question of mental fitness of the accused raised that would justify me discharging the jury and adjourning the trial. I appreciate that a question of mental fitness has been raised essentially by Mr Huggins has a result of his contact with Mr Barry. However, I have now heard from Ms Westworth who is a very experienced nurse in the mental health area.

On the basis of the whole of the material that I have before me, my view is that there is not sufficient evidence or material before me upon which I could act to discharge the jury. That's not to say that it would not be in Mr Barry's best interests and the interests of justice that he be examined by a psychiatrist.

I don't know that I can order that that occur at this time. My powers under the Criminal Law (Mentally Impaired Defendants) Act 1996 appear to be limited to the situation where I make a hospital order. I can't make a hospital order unless I suspect on reasonable grounds that the defendant has a mental illness requiring treatment, that the treatment is required in order to protect the health or safety of the defendant or any other person or to prevent the defendant doing serious damage to any property and that the defendant has refused or is unable to consent to the treatment. I'm not satisfied that those requirements have been met. Consequently it does not seem to me that it's open for me to make a hospital order.

The only other power that I can see in the Criminal Law (Mentally Impaired Defendants) Act to require someone to be examined is if I decide to hold an inquiry as to the question of mental fitness. As I have just determined, I am not going to at this point of time hold such an inquiry. However, I would hope that my comments would be acted upon by the authorities and indeed by Mr Barry. I would hope that he would appreciate that it would be in his best interests to speak to a psychiatrist if that is able to occur and certainly if Ms Westworth is able to arrange that, then that would be appreciated. However, as I have said, I don't think I have the power at this stage to order that the accused be psychiatrically examined.

I don't think there is anything else I need to say at this point of time. Obviously my decision may affect others' decisions but that is my determination on the issue of fitness to be tried."

36 After making some observations about the suppression order, her Honour added (t/s 214):

"Mr Barry, thank you very much for seeing Ms Westworth this afternoon. As I understand it, you have a desire to continue with the trial. As I have said, I do appreciate you seeing Ms Westworth. If indeed the option becomes available for you to see a psychiatrist, I would highly recommend that you take that opportunity and take advantage of it. It would seem to me that it could only help you, not hinder you. Apart from that, you will be remanded in custody to appear here at 10 am tomorrow morning. ..."

37 As I have noted, it appears to have been counsel's application to discharge the jury and have the applicant made the subject of a hospital order. The application was supported by no more than quite vague statements by counsel from the bar table, saying only that he was, quote, "very uncomfortable". His references to his experiences with other clients were of no assistance to her Honour because he did not relate them in any specific or particular way to the applicant.

38 What he said to her Honour in Chambers again lacked specificity and of course it was not anything said from the point of view of any expertise in the field. The State's position was that the application was inappropriate at least at that stage.

39 The State prosecutor quite obviously correctly submitted to her Honour that there would have to be very strong grounds to discharge the jury and that in the first place there was no overt reason for concern following examination by the psychiatric nurse, and ,in the second place, there is nothing in the history of the proceedings to that point which might indicate any lack of fitness to stand trial.

40 Disputation or argument between trial counsel and an accused about what issues should be pressed at the trial is not uncommon. That really seems to be all that counsel was putting to her Honour. That in itself is not indicative of mental illness, nor of lack of capacity to understand the trial processes nor to give proper instructions.

41 Albeit the psychiatric nurse was not a doctor, she was nonetheless highly qualified and experienced in the field of forensic psychiatry. She addressed the appropriate considerations. She found nothing to indicate psychiatric illness or unfitness to stand trial. She had no concerns after her assessment. Her Honour accepted that evidence as she was entitled to do. Indeed, she had no other evidence to suggest a concern otherwise.

42 The application before her Honour was for discharge of the jury and an adjournment. Her options were either to refuse that or to grant it, in which latter event under s 14 she could have granted the applicant bail (which was not a likely option given the charge of wilful murder), remanded him in custody or made a hospital order under s 5. It was the hospital order which counsel was seeking.

43 Her Honour expressly and correctly referred to the statutory requirements for the making of a hospital order under s 5(2) of the Act. She concluded that there were no reasonable grounds for suspecting the applicant had a mental illness. On the material before her Honour, there could have been no other conclusion. Her Honour then turned her mind to conducting an inquiry on the question of the applicant's mental fitness to stand trial under s 12. In fact, of course, she had in effect already done so to an extent, and the result of that gave her no reason to think further inquiry was necessary.

44 Again, that decision seems not only a reasonable decision but the only decision which could properly have been made at that stage of the trial having regard to the material before her Honour.

45 Her Honour expressly left open the possibility of revisiting the question subsequently if the applicant was psychiatrically examined and wished to present additional material. That apparently never occurred.

46 Although not referred to in the submissions in the Appellant's Case nor in counsel's oral submissions today, I have noted that in the draft index to the appeal books documents and the Appellant's Case, reference is made to a pre-sentence report of Ms Valerie Thatcher dated 21 October 2005; a psychiatric report of Dr Pullela dated 25 October 2005; and a psychological report of Ms Kirsten Bouse, all of which were prepared for the purposes of sentencing.

47 I have read the pre sentence report. There is nothing in that which would suggest any concern about the applicant's mental state in terms of any unfitness to stand trial, or mental illness. For some reason the psychiatric and psychological reports are not on the Court file. I was able to obtain a copy of the psychological report before the hearing this morning but not the psychiatric report.

48 I note Mr Watters was counsel for the applicant on the sentencing. Although I was not able to obtain the psychiatric report before the hearing this morning, all the reports were referred to in counsel's written submissions, (that is to say, Mr Watters' written submissions) to her Honour, filed 23 November 2005. Those submissions rehearse the following in relation to those reports.

49 First, the psychiatric report. Of that it is said that Dr Pullela states there are no management concerns about the applicant since he has been in prison. He was working in the prison canteen. He had three children aged 10, 12 and 14 from a previous relationship. He has had four previous de factos, one for 10 years resulting in his three children, and one with the deceased resulting in their son Jarrod (deceased).

50 The applicant did express remorse regarding the death of his son and ex-de facto; there was no evidence of mood swings or problems controlling his anger; no specific personality deficits or disorder; no form of thought disorder; no clinical depression; no underlying psychosis; no hallucinations or delusions; comes from a relatively stable family background; no evidence of any treatable mental illness or psycho pathology; has experienced loss of love objects, his son and ex-de facto; has experienced a need to deal with grief and loss; and there are no specific psychiatric recommendations made concerning the defendant.

51 As to the psychological report of Kirsten Bouse dated November 2005, Mr Watters noted in his submissions:

"• his risk of re-offence is assessed as being low;

• has an apparent ability to lead a law-abiding life;

• has had late involvement with the Criminal Justice System;

• has been a productive member of society (noting his employment record);

• his history reflects an absence of substance abuse;

• the factors in this offence suggest the Defendant was experiencing a particular set of stressors (as set out at the bottom p4/5 of report) and that these stressors were unique to his relationship with the deceased, Ms Amos;

• the factors outlined (bottom p4/5 of report), together with;

i. the way the relationship between the Defendant and the deceased started (the deceased was married at the time and had two children);

ii. the family disharmony and disapproval of their relationship;

iii. the death of their son and the Defendant's grieving;

iv. the Defendant's frustration and anger due to his belief the deceased was responsible for their son's death and her frequent telephone contact with him,

are considered to have caused the Defendant significant emotional distress in addition to having impaired his judgement."

52 Again, there is nothing to suggest any mental illness going to any apparent unfitness on the applicant's part to stand trial. As I have already noted, I have read the psychological report and that consists almost entirely of the psychologist recounting a history given to her by the applicant. There is nothing there which goes to the present issue.

53 Having regard to all of these considerations, there is no prospect this ground of appeal could succeed. Leave to appeal in respect of it is accordingly refused.