Mizzi v The Queen

Nov. 8 Dixon C.J., McTiernan, Fullagar, Menzies and Windeyer JJ.

This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Victoria refusing the applicant leave to appeal from a conviction for murder. The decision was that of a majority of the Court, Herring C.J. and Gavan Duffy J., Monahan J. dissenting.

On 23rd December 1959 the prisoner killed a woman named Myrtle Bourke by stabbing her with a knife which he took from some place in the kitchen where they were at the time. It was the kitchen of a house in Fitzroy Street, Fitzroy, where he dwelt. She lived some doors up the street. They had become acquainted and had established a sexual association. For present purposes it is unnecessary to go into the circumstances of the sordid life they led or indeed to give an account of the detailed facts of the case.

He left her on the kitchen floor and went off to the police station. Ultimately he signed a written statement recounting what had occurred. This showed a clear enough perception of the course of events but there was much in it to arouse suspicion as to his sanity and as to the reality of some of the more or less trivial actions he ascribed to the dead woman. At his trial his defence was insanity. The defence was supported by three physicians, psychiatrists, who were called for the prisoner. No evidence was called by the Crown in rebuttal. The three physicians were of high qualification and experience; two were government officers whose work lay at the psychiatric clinic at Pentridge Prison. They had investigated the prisoner's condition for the Authorities. The third was a specialist in private practice. All three physicians deposed to the opinion that the prisoner suffered from a disease or disorder of the mind, namely paranoiac schizophrenia, as a result of which he had stabbed the woman. They considered that in consequence of this disease or disorder he had no appreciation of the wrongness of his act and they went as far as saying that it might well be that he had not a full or sufficient appreciation of the nature and quality of his act. The latter view was put by the witnesses on grounds that were not identical but one of the prison doctors said, in effect, that the prisoner's knowledge of what he was doing with the knife "was on a less responsible level than the word "know" is usually used". This may be taken to indicate the reason for their tendency to doubt or deny the sufficiency of the prisoner's appreciation of the nature and quality of his act. All three were of opinion that he should be certified as an insane person.

Although no evidence was called in rebuttal of the case for the prisoner upon the defence of insanity, counsel for the Crown cross-examined the three physicians who gave evidence of his insanity, and the cross-examination was directed to show that the prisoner could not but know the nature and quality of his act and that, having regard to his repairing to the police station immediately after killing the woman and to the statement he there made, he must be taken to have been aware that his act was wrong. The reasoning upon which the cross-examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from a reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons.

However this may be there are many reasons why, when a defence of insanity is strongly supported by expert evidence that an accused person was suffering from a disease or disorder of the mind, the instructions to the jury should include an attempt to explain not only the test which they must apply but also the real meaning of the expert evidence in its bearing upon that test and the considerations which may properly be used in deciding to accept or reject the opinions advanced. We are not here dealing with a case in which the medical evidence is under suspicion of partiality or one in which it is contradictory. The experts were independent, they were of undoubted qualification and they were in complete agreement as to the prisoner's mental state. The case is simply one in which an opposition was disclosed between the view which experts took of the matter and the conclusion which laymen would or might reach. From a forensic point of view at all events, it may be said that the acceptance of the medical view that the prisoner at the time of the commission of the homicide was incapable of understanding the wrongness of his act was made less easy for a jury by the tendency of the physicians to suggest that notwithstanding his possessing himself of the knife and inflicting deadly wounds upon his victim, the prisoner may have lacked a sufficient capacity to understand even the nature and quality of his act. The difficulty was doubtless increased by the fact of his going at once to the police station. The expert witnesses perhaps did not feel the difficulty, because they were concerned with a paranoiac schizophrenic and because they concentrated upon the confusion of mind apprehension and reason which in their view would beset such a person. But these very difficulties increased the importance of the jury's obtaining an understanding of what was being discussed under the term "knowledge of the wrongness of his act". They increased too the importance of a correct appreciation of the measure of proof which the defence of insanity should sustain. For the case might well depend upon the jury's being prepared to surrender to independent expert opinion doubts which had been engendered by arguments based upon the prisoner's subsequent action and by the learned prosecutor's cross-examination. But the initial complaint which counsel for the prisoner put forward in support of the present application was that the charge to the jury was inadequate in both these respects. The summing up contained directions concerning the acts which would, apart from the defence of insanity, amount to murder. In this part of the charge the necessity was emphasized of the Crown's proving the elements of the crime to the satisfaction of the jury beyond reasonable doubt. But when the charge to the jury turned to the plea of insanity the jury were told that the defendant must prove that plea to their satisfaction and that if he left them in doubt he failed to establish the defence of insanity. In one sentence, it is true, a statement of the standard of persuasion was made which in itself was sufficiently correct. But no contrast was expressly instituted between the two standards. The jury were never told definitely that it was not necessary that the case for the prisoner should remove all reasonable doubt as to his insanity as the case of the Crown must do in proving the elements of the crime. We do not under-estimate the difficulty of charging a jury in a case of this description nor are we unconscious of the dangers of over-elaboration, dangers from which perhaps the very learned judge who presided sought to escape by recourse to a brevity and simplicity of statement. Nevertheless when the summing up is read as a whole it seems unlikely that it would make the jury thoroughly aware of the great distinction between very different burdens of proof resting upon the Crown and, in reference to the plea of insanity, upon the defence. We do not think it is necessary to set out in this judgment an analysis of the charge proceeding, as it did, from the description or explanation of what in law amounted to the crime of murder and of the necessity of the Crown's proving the charge beyond reasonable doubt to a final direction, given on the jury being recalled, as to the different verdicts they might find if they thought on the one hand that the case for the Crown "is made out" or "not made out" and on the other hand if they thought "that the defence of insanity has been made out". It is enough to say that we have given anxious consideration to the whole charge and have reached the conclusion that a jury listening to it may well have failed to derive from it a sufficient appreciation of the contrast. In the same way we think that the brevity of the treatment of the basal issue of the prisoner's incapacity from disease or disorder of the mind to know the wrongness of his act is open to objection. It appears to us to provide the jury with an inadequate explanation of the real meaning and effect of the medical evidence as to the mental incapacity of the prisoner at the time of the homicide to appreciate the wrongness of the act sufficiently to satisfy the test expressed in the word "know". But clearly enough it was there that the issue lay between the layman's view presented by the learned prosecutor for the Crown in his cross-examination and the psychiatric view presented by the evidence of the three physicians.

When the two complaints about the charge to the jury are considered together it is difficult to avoid the conclusion that as a direction it does not form a satisfactory basis for the conviction, which we think ought not to be allowed to stand. But when the conviction is set aside ought a new trial to be ordered? The Solicitor-General made it clear enough that it was not the desire of the Crown that the issue of the prisoner's insanity should be tried again; but the legislation of Victoria is in a form which leaves some uncertainty as to what the Supreme Court dealing with a criminal appeal should do in such circumstances. The verdict at a trial where it is established that the prisoner is insane at the time of the commission of the alleged offence is prescribed by s. 420 of the Crimes Act 1958 and, as is well known, that verdict consists of an acquittal on the ground of insanity. The provision enacts that "the jury shall be required to find specially whether such person was insane at the time of the commission of such offence and to declare whether such person was acquitted by them on account of such insanity". On an appeal however by a prisoner who is convicted the Supreme Court sitting as a court of criminal appeal, if it comes to the conclusion that a verdict of acquittal on the ground of insanity should have been found, is not authorized in express language to enter such a verdict. Section 568 of the Crimes Act 1958 does authorize the Court in general terms to allow an appeal and quash the conviction and direct a judgment and verdict of acquittal to be entered or a new trial to be had. Section 569, according to the side-note, is devoted to conferring powers upon the Court in special cases. Sub-section (4) of s. 569 is directed to the case of its appearing to the Court that the prisoner was insane at the time of the commission of the acts forming the crime. But its terms are obviously taken from the Criminal Appeal Act 1907 of the United Kingdom from which such legislation is derived: see s. 5 (3) of that Act. In the United Kingdom the appropriate verdict of the jury is "Guilty but insane". Sub-section (4) of s. 569 of the Victorian Act is expressed in language which appears to ignore, so to speak, the Victorian law as to the verdict to be found. It says that "if on any appeal it appears to the Full Court that an appellant found guilty of the offence with which he was charged was insane at the time of the commission of such offence so as not to be responsible according to law for his actions the Court may quash the sentence passed at the trial and order the appellant to be kept in strict custody until the Governor's pleasure shall be known in the same manner as if the appellant had been found to be insane by the special verdict of the jury under sec. 420 of this Act". What the sub-section should have said if consistency were to be maintained is that a verdict of not guilty on the ground of insanity should be entered. Under Victorian law no sentence except a sentence of death is permitted upon a verdict against an adult person of murder. It seems necessary to construe the provisions of s. 568 and s. 569 (4) so as to reconcile them with what might be regarded as the substantive provisions relating to the sentence authorized by law in the case of murder and the verdict authorized by law in the case of acquittal on the ground of insanity. The intention is clear enough but owing to the influence of the language of the English prototype and the form of verdict in England in cases of insanity no express provision is made for a change by the court of criminal appeal in the verdict. But we think that the true meaning of the provisions of the Act considered together is to authorize the Court to enter what is the proper verdict according to the substance of the law. We think on the whole that the right course to take is to set aside the sentence and verdict upon the prisoner to enter a verdict of "not guilty upon the ground of insanity" and to direct that the appellant be kept in strict custody until the Governor's pleasure shall be known in such a place and in such manner as is customary. Special leave to appeal will be granted. The appeal will be treated as heard instanter and allowed.