Court of Appeal (WA)|2007-01-17|Before: Smith JA

BARRY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 12 (17 January 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARRY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 12

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : BARRY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 108

Appeal against conviction - Application for review of single Judge's decision to refuse leave to appeal - Appellant's mental fitness to stand trial queried by counsel at trial - Whether trial Judge made inadequate investigations and erred in failing to abort trial - Turns on own facts

Application for leave to add additional ground of appeal - Appeal already dismissed - Application incompetent

Application for leave to add an additional ground of appeal dismissed

Barry v The State of Western Australia [2006] WASCA 108

Pezzino v The State of Western Australia [2006] WASCA 131

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

Apidopoulos v Sheriff of Victoria [2000] VSCA 104; (2000) 1 VR 476

Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 62 ALJR 319

CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458

Gooch v The Queen [2002] NTCCA 3

Grierson v The Queen [1938] HCA 45; (1938) 60 CLR 431

McDonald v The Queen (1992) 85 NTR 1

Prizac Developments Pty Ltd v Unley Property Development Pty Ltd [2001] SASC 141

Wentworth v Wentworth (1994) 35 NSWLR 726

1 STEYTLER P: There are two applications before the Court. The first is an application for review of the decision of a single Judge of this Court, Roberts-Smith JA, refusing the appellant leave to appeal against his conviction on a charge of wilful murder. The second is an application for leave to rely upon a ground of appeal, to be added by amendment, that was not before Roberts-Smith JA at the time of dismissing the application for leave.

Relevant events at the trial of the appellant

2 The evidence at the appellant's trial established that in about January 2002 he had formed a relationship with a woman, Claire Amos. About a year later, Ms Amos gave birth to their son, Jarrad. On 25 May 2003 Jarrad died. The appellant was away at the time. The relationship between Ms Amos and the appellant subsequently failed and, for reasons which it is unnecessary to recite, the appellant became concerned about the circumstances of Jarrad's death. The relationship between the appellant and Ms Amos deteriorated further. On the morning of 27 January 2004 the appellant went to Ms Amos' home to talk to her. An argument broke out and the appellant stabbed Ms Amos. The prosecution case was that he stabbed her several times, causing her death. The appellant's defence was that he had stabbed her only twice and that the additional stab wounds must subsequently have been inflicted by someone else.

3 On the morning of the third day of the trial (14 September 2005), after nine of the prosecution witnesses had given evidence, the then counsel for the appellant said that there was something he needed to canvass with the trial Judge in the absence of the jury. He asked that the court be closed. The trial Judge suggested, instead, that counsel see her in chambers in order that she might discover what it was that was troubling the appellant's counsel. That suggestion was acceded to. It seems, from what was subsequently said by the trial Judge in open court, that, while in chambers, she was told by the appellant's counsel that he needed more time to obtain instructions from the appellant because there was "tension" between the two of them. He suggested that this was because the appellant had trouble focussing on what he regarded as being the relevant issues in the trial.

4 The trial Judge allowed some additional time for counsel for the appellant to obtain further instructions. Once these had been obtained, counsel for the parties again met with the trial Judge in her chambers. Counsel for the appellant told her that he was still having difficulties getting the appellant to focus on the relevant issues. He said that he believed that the appellant might be suffering from post-traumatic stress. He said that he doubted whether the trial should continue, although the appellant wanted the trial to proceed.

5 Thereafter, an approach was made to a clinical nurse, Ms Tracy Westworth, employed by the State Forensic Mental Health Service. After Ms Westworth had spoken to the appellant, the hearing resumed in court, but still in the absence of the jury. Counsel for the appellant told the trial Judge that the appellant had spent some 25 minutes with Ms Westworth who, he said, "saw no overt matters that raised her attention". However, he went on to say that he had not had an opportunity to speak to Ms Westworth in order to explain what had given rise to his request that she should see the appellant. In that circumstance, and because Ms Westworth had seen the appellant for only 25 minutes, he proposed that the jury be discharged and that the appellant be remanded "for a seven-day assessment under a hospital order".

6 There followed some debate concerning this suggestion. It resulted in the trial Judge hearing evidence from Ms Westworth. In her evidence, Ms Westworth said that she had been asked to assess the appellant because of concerns arising out of the fact that he had been "quite agitated and had been raising his voice". She said that she had no concerns after her assessment, but went on to say that she could "understand after that short amount of time of seeing someone that there could be underlying issues that may need ... a lot longer assessment". When asked whether the appellant seemed to understand "what he was in court for" she responded:

"Yes. When we do court assessments, especially like at central courts, they're the things that we are trying to find out, whether people are able to follow the court direction and why they're in court, and I did ask all relevant questions and I felt he was able to do that."

7 The following exchanges between the trial Judge and Ms Westworth then took place:

"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 [sic] 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? ... [the then counsel for the appellant] 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."

8 When asked by counsel for the appellant how soon the appellant could be seen by a psychiatrist, Ms Westworth said that this would probably be during the following day. When asked whether there was anything further that she wanted to say, Ms Westworth stressed that she was a nurse and not a doctor, albeit she had "a lot of clinical experience" (she had a postgraduate degree "in working with people with a serious mental illness", had worked as a community mental health nurse for 10 years and had worked for the State Forensic Service for the previous two and a half years). She went on to say:

"If I had any concerns about ... [the appellant's] mental state at this point ... I would have expressed them. I understand, like, in a seven-day hospital order he would have ... 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".

9 The trial Judge then ruled that the trial should proceed. She said that there was insufficient evidence before her to justify the discharge of the jury. She said that the requirements for making a hospital order under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) had not been satisfied and that she could accordingly not make an order of that kind. She also said that she was not going to hold an inquiry as to the question of mental fitness under the Act but that she hoped that the appellant would speak to a psychiatrist. The trial Judge thanked the appellant for seeing Ms Westworth. She went on to say:

"As I understand it, you have a desire to continue with the trial ... 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."

10 The trial then proceeded. A number of other prosecution witnesses gave evidence and, on 16 September 2005, the appellant gave evidence in his defence.

11 There is only one ground of appeal that was the subject of the application for leave to appeal brought before Roberts-Smith JA. It reads as follows:

"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."

12 I have said that the application for leave to appeal was dismissed. Roberts-Smith JA ruled that the sole ground had no reasonable prospect of success: s 27(2) of the Criminal Appeals Act 2004 (WA) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. After reciting the material events at the trial, Roberts-Smith JA said (Barry v The State of Western Australia [2006] WASCA 108 (at [40])) that all that had really been put to the trial Judge was that there had been disputation concerning the issues that should be pressed at the trial. He said that this was not uncommon and was in itself no indication of mental illness, nor of lack of capacity to understand the trial processes or to give proper instructions. He accepted (at [43]) that, on the material before the trial Judge, she could have come to no other conclusion than that there were no reasonable grounds for suspecting that the appellant had a mental illness or that he was otherwise unfit to stand trial. He went on to say that, since the events to which he had referred, a number of reports had been prepared in respect of the appellant for sentencing purposes. These were a pre-sentence report prepared on 21 October 2005 by Ms Valerie Thatcher, a Senior Community Corrections Officer; a psychiatric report prepared by a Consultant Forensic Psychiatrist, Dr Ananth Pullela, on 25 October 2005; and a psychological report prepared by Ms Kirstin Bouse, a Forensic Psychologist, in November 2005. He said that he not been able to obtain a copy of the psychiatric report but that the pre-sentence report and the psychological report lent no support to the contention that the appellant had been unfit, in any respect, to stand trial.

13 Section 27(1) of the Criminal Appeals Act provides that the leave of the Court of Appeal is required for each ground of appeal in an appeal from a superior court. Section 61(1) of the Supreme Court Act 1935 (WA) provides that, in relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of that court that are conferred on a single judge of appeal by rules of court. Rule 43(2)(c) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that a single judge has jurisdiction, in a criminal appeal, to exercise the Court of Appeal's functions under s 27 of the Criminal Appeals Act. Section 61(3) of the Supreme Court Act provides that a person who is dissatisfied with a decision or order made by a single judge of appeal may apply to the Court of Appeal to set aside or vary that decision or order. Section 61(4) gives to the Court of Appeal the power to set aside or vary such a decision or order. Rule 8 of the Court of Appeal Rules provides for the procedural aspects of an application for review.

14 In Pezzino v The State of Western Australia [2006] WASCA 131 (at [10]) Wheeler JA suggested that, in a review of this kind, the task of the Court might well be that of evaluating for itself, afresh, the grounds pressed by the appellant. Because nothing turned, in that case, on the distinction between a review of that kind and the task of a court on an appeal, she found it unnecessary to reach any final conclusion in that respect. In the same case Roberts-Smith JA (at [54]) took "the correct principle to be that on a review under r 8 the Court of Appeal is required to make its own assessment of the grounds in accordance with s 27 of the Criminal Appeals Act ... '. The third judge, Martin CJ, agreed (at [60]) with everything that had been said by each of the other judges but, because there had been no considered argument on the question of the approach to be taken on an application for review of a refusal of leave, he preferred to leave the question open for another day. While it seems to me that the approach favoured in Pezzino was that intended by the legislature, it is, in this case also, unnecessary to give further attention to that question. Regardless of whether or not the review is treated as a fresh evaluation of the rejected ground or as an appeal in its stricter sense, the application fails for reasons that I will outline.

15 The Criminal Law (Mentally Impaired Accused) Act applies, by s 4, in respect of any accused before any court exercising criminal jurisdiction. Sections 9 and 10 of that Act read as follows:

"9. Mental unfitness to stand trial, definition

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.

10**. Presumptions as to mental fitness to stand trial**

(1) An accused is presumed to be mentally fit to stand trial until the contrary is found under this Part.

(2) An accused found under this Part to be not mentally fit to stand trial is presumed to remain not mentally fit until the contrary is found under this Part."

16 Section 11 of that Act provides that the question whether an accused is not mentally fit to stand trial may be raised in the Supreme Court before an indictment is presented, after an indictment is presented but before a jury is sworn, or at any time after a jury is sworn and during the trial of the accused. It also provides that the question whether an accused is not mentally fit to stand trial may be raised by the prosecution or the defence or by the presiding judicial officer on her own initiative. A question of that kind can be raised more than once in a trial: s 11(3). Section 12 reads as follows:

"12**.** Deciding the question of mental fitness

(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) 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."

17 In a nutshell, the sole contention advanced on behalf of the appellant is that the comments made by the then counsel for the appellant during the course of the trial suggested that the appellant was not mentally fit to stand trial for one or more of the reasons specified in s 9(e) - (g) and that, although the trial Judge appropriately chose to investigate that question, she did so inadequately, with the consequence that she should not have been satisfied that the appellant was mentally fit to stand trial.

18 There is no evidence to suggest that the appellant was in any sense mentally unfit to stand trial. The assertion by his counsel did not amount to evidence. In any event, as I have mentioned, that assertion was only to the effect (ignoring the untutored diagnosis of post-traumatic stress) that there was tension between him and the appellant and that, in his opinion, this was because of the trouble that the appellant had in focussing on what counsel regarded as being the relevant issues in the trial. More importantly, perhaps, Ms Westworth saw nothing that caused her any concern. Although she was not a psychiatrist, she was seemingly well qualified in her field and had a good deal of clinical experience. While it is true that she had not been told what it was that had led to counsel's concern, and while she regarded it as preferable for the appellant to be given access to a psychiatrist, her evidence was entitled to be given some weight. Moreover, because the appellant chose not to avail himself of the opportunity to see a psychiatrist and preferred to go on with the trial, there was no other evidence upon which the trial Judge could place any reliance. She could, of course, have exercised the power given to her by s 12(2) of the Criminal Law (Mentally Impaired Accused) Act to order that the appellant be examined by a psychiatrist, but there is nothing to suggest that this would have revealed that he was mentally unfit to stand trial. Rather the available evidence points overwhelmingly to the conclusion that he was fit to stand trial.

19 The first indicator of this is the transcript of the appellant's evidence at the trial. It seems to me to be readily apparent from the transcript that the appellant fully understood the case that was being advanced against him, the case that he raised by way of defence and the effect of the evidence that had been presented. He had no difficulty in answering the questions put to him and he plainly understood the significance of those questions and of his answers to them. There is nothing in the transcript of his evidence that gives rise to any concern at all as regards his mental state and nor did his counsel suggest otherwise during the course of his evidence. No further application was made during the trial in respect of the appellant's mental fitness. Similarly, counsel for the appellant did not, during the appeal, identify anything untoward in the transcript of the appellant's evidence. Nor did he suggest that there is any fresh, or even new, evidence that casts doubt on the appellant's mental fitness at the time of the trial.

20 There is, of course, subsequent evidence in the form of the three reports to which I have referred. While these relate to the mental state of the appellant at the time of the reports, rather than during the trial, there is nothing in the reports to suggest that there was, or that there even might have been, any mental unfitness at the time of the trial, whether as a consequence of post-traumatic stress or otherwise. Instead, they indicate very strongly that, at the time of examination at least, there was no mental unfitness. The reports of Dr Pullela and Ms Bouse are particularly important.

21 Dr Pullela saw the appellant on 25 October 2005, not long after the trial. He said that the appellant's personality profile revealed no specific personality deficits or disorder. His speech and thought process were normal. There was no evidence of any clinical depression or of any underlying psychosis. There was no evidence of any formal thought disorder. Nor was there any evidence of perceptual distortions or irrational beliefs. The appellant's cognitive functions were "grossly intact", although these were not tested formally. No management concerns had been reported to Dr Pullela. He concluded that, from a psychiatric point of view, the appellant presented with no evidence of any treatable mental illness or psychopathology.

22 In her report, the psychologist, Ms Bouse, expressed no relevant concern concerning the appellant's then mental state. She found him to be surprisingly "jovial and friendly (on most occasions)". However, she said that he also presented as "highly focused (if not preoccupied) with the various elements of his court case and evidence that he claims casts doubt upon his responsibility for Ms Amos' death", to the extent that he was "extremely difficult to focus on other topics of conversation, always returning to discussions regarding evidence/witnesses". She said that his degree of focus was such that it might well have prevented him from fully grasping the implications of his conviction and future.

23 In all of these circumstances it seems to me that, even if the appellant was to succeed in persuading the Court that further investigations could and should have been made at the time of the trial, the available evidence suggests very strongly that, if such investigations had been made, they would have revealed nothing of significance and that there was consequently no substantial miscarriage of justice. In my opinion, the sole ground of appeal has accordingly no reasonable prospect of succeeding (as to which see Samuels at [51] - [59]) and the primary Judge was right to dismiss the application for leave to appeal.

The application to add an additional ground

24 Section 27(3) of the Criminal Appeals Act provides that, unless the Court of Appeal gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed. It follows that, because Roberts-Smith JA refused leave on the sole ground of appeal, the appeal was dismissed. Because the application for review has been unsuccessful, the dismissal of the appeal stands unaltered. The application to add a further ground of appeal is consequently incompetent. That seems to me to be the plain effect of s 27(3). If the situation was otherwise, the effect of that provision could be nullified in any case merely by bringing an application to review the refusal of leave in respect of one or more of the grounds of appeal and coupling it with an application to add a further ground or grounds.

25 I would consequently dismiss the application for review and also the application to add an additional ground of appeal.

Law (Mentally Impaired Accused) Act 1996

Court (Court of Appeal) Rules 2005

BARRY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 12 (17 January 2007)

At a glance

Court

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Catchwords

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Judgment (73 paragraphs)

BARRY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 12 (17 January 2007)

Legislation Cited (4)

Cases Cited (9)