Lucas v The Queen

He now applies for an extension of time in which to appeal on a point of law and for leave to appeal in respect of some matters of fact or of mixed fact and law and against sentence. In case such an extension should be granted, he has lodged a notice of appeal and notices of motion for leave to appeal.

The facts evidenced in support of the indictment were few and undisputed. The defences were an absence of intent in the case of each charge due to the state of intoxication in which the applicant appears to have been at the relevant time and insanity at the time of the performance of the acts constituting the offences, again due to alcoholic excesses.

Apart from a complaint as to the emphasis given by the learned trial judge to some facts - a matter which even if made out would not lead us in this case to grant the requisite leave to appeal - the only submissions made as to the summing up were, firstly, that the trial judge had not canvassed with the jury all the statements of the appellant, which if accepted by the jury could, so it was claimed, have founded a verdict of not guilty on the grounds of insanity. Secondly, that the trial judge had not informed the jury of, and had not explained to them, the consequences of such a verdict: thirdly, that, although his Honour had directed the jury properly as to the ingredients of insanity as a defence, his failure to discuss the evidence which, as counsel claimed, tended to establish insanity and to relate that evidence to the legal elements of insanity, amounted to a failure adequately to instruct the jury on that defence.

The material on which the appellant relied as establishing insanity comprised firstly and perhaps pre-eminently the claim that due to an excessive consumption of methylated spirits he was in a state of delirium tremens at the time of the commission of the acts constituting the offences and, secondly, some statements attributed to him which it was said indicated a lack of comprehension of events that were taking place. No medical evidence was called as to the existence of any mental disease or disorder. Whilst medical evidence may not always be indispensable to the establishment of a defence of insanity, its absence in this case meant, in our opinion, that the material before the jury was insufficient to found such a defence. Whilst the jury could have concluded that the applicant was at relevant times very intoxicated, there was, in our opinion, nothing on which it could have been concluded that any mental disease or disorder had supervened so that by reason of that disease or disorder he was unable to know what he was doing or to appreciate its quality. However, the trial judge left the defence of insanity to the jury. As we have said, the facts in the case were few and at the time of the summing up had been but recently evidenced and canvassed before the jury. In our opinion, the trial judge did not fail adequately in the circumstances of the case to place the defence before the jury and to instruct them in its legal elements. In so far as leave to appeal may be necessary, we would refuse it.

However, the applicant's counsel, who presented the applicant's case with clarity and frankness, submitted that in point of law the trial judge was bound to inform the jury that if they returned a verdict of not guilty on the ground of insanity, the applicant would be held in some appropriate institution during the Governor-General's pleasure. The reason assigned by counsel for this requirement was, in the words of Barry J. in Reg. v. Weise [1] , "to ensure that the jury will be able to deliberate upon the issue" i.e. of insanity "without being distracted by a fear that if they find a verdict of not guilty on the ground of insanity, the accused, who they may consider should be kept in custody for protective purposes, may be set free".

In our opinion, the law does not require any such direction. Indeed, the jury are not concerned with the consequences which may follow upon their verdict whether it be a verdict of guilty of the offences charged or a special verdict of not guilty on the ground of insanity. In our opinion, the judge is not bound to tell them, and counsel ought not to be allowed in any case to tell them, of the possible results of their verdict. No doubt, in places where capital offences remain, juries know what is the maximum punishment for the offence. Even then, in our opinion, it is undesirable that counsel be allowed to attempt to divert the jury from their consideration of the issues for their decision by emphasis upon the consequences of their verdict should they convict.

Not only do we think that a trial judge is not bound to inform the jury of the consequences of a verdict of not guilty on the ground of insanity, but in our opinion it is in general unnecessary and undesirable that he should do so. With great respect to so experienced a judge as the late Barry J., we are unable to accept as universally valid the reason he gives in Reg. v. Weise [1] for giving the jury information as to the consequences which may follow on a verdict of not guilty on the ground of insanity. Certainly Dixon J. (as he then was) did not so think when summing up in R. v. Porter [2] , a case in which insanity was pleaded. There is, in our opinion, no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is truly, so far as the jury are concerned, an extraneous matter. It is, in our opinion, generally undesirable that reference should be made to the possible consequences which may ensue upon any verdict which the jury may properly return.

Of course, there may be occasions when it is appropriate to apprise the jury of the consequences of the special verdict, i.e. not guilty on the ground of insanity. For example, if counsel should so far exceed his function as to speak to the jury of such consequences it may be not only desirable but necessary in the interests of justice for the judge to advert to the matter in his summing up. Attorney-General (S.A.) v. Brown [3] affords an illustration of such a case (see p. 454 of the report). There may be other circumstances in which a like intervention by the presiding judge is justified and at times called for. But the conclusion that he may, or should, refer in such cases to the consequences of the verdict can only arise in special circumstances.

In our opinion, the other complaints as to the summing up are without substance and afford no ground for interference with the jury's verdict.

Lastly, it was submitted that the sentences were excessive and should be reduced. We have already rejected the application for leave to appeal on this ground. Counsel properly called our attention to various factors which, as he claimed, ought to have induced the trial judge to impose considerably lighter sentences. But having weighed all that counsel has said, we were unable to hold that the trial judge has fallen into any error in imposing the two sentences to which we have referred. The sentences were well within the proper exercise of his discretion in all the circumstances of the case.

We would extend the time for lodging a notice of appeal and for giving notice of motion for leave to appeal. In so far as leave to appeal is necessary, we would refuse to grant it and in so far as such leave is unnecessary we would dismiss the appeal.