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[2003] NSWSC 965
procedural. The Crown was directed to call evidence from Dr Skinner in its case and not in reply: [1], [31].
The judge ruled on when the prosecution could present a psychiatrist's evidence in a murder trial where the accused relied on substantial mental impairment. Section 151(3) allowed rebuttal evidence to be given in the Crown case or in reply, unless the judge directed otherwise. The common law rule against splitting the Crown's case did not prevent the Crown from choosing reply for evidence directed only to the defence. However, fairness could justify a direction. Because evidence about the accused's drug use and its possible effects was principally relevant to the defence, and intent to kill was not disputed, the judge directed the Crown to call Dr Skinner during its case.
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In R v Fraser [2003] NSWSC 965, Howie J ruled on the order in which the Crown could call evidence during a murder trial. The ruling did not determine the accused's guilt or whether the substantial-impairment defence ultimately succeeded. It addressed whether the Crown should call psychiatrist Dr Skinner during its case or after the defence evidence, in reply.
No linked legislation citations have been extracted yet.
The accused faced three murder counts concerning the deaths of his three young children. He pleaded not guilty to murder but guilty to manslaughter. The Crown refused to accept those pleas in full discharge of the indictment, and the trial on the murder counts proceeded: [2]. The central issue identified in the openings, and reflected in the way the trial was conducted, was whether the accused had proved the defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW): [3]-[5].
The defence intended to call psychiatrist Dr Westmore. The Crown intended to call psychiatrist Dr Skinner to rebut the defence evidence: [6]. Both psychiatrists accepted that the accused had a personality disorder at the time of the killings, but differed about its effect on his mental processes: [7]. The judge also described evidence concerning alcohol and prescribed drugs consumed by the accused. Under s 23A(3), as set out in the judgment, the effects of self-induced intoxication were to be disregarded in determining whether the defence applied. The Crown's anticipated argument was that the accused retained sufficient judgment, awareness and control, and used alcohol and drugs to overcome inhibition or strengthen his resolve: [7]-[8].
The immediate procedural question arose after counsel argued about whether the Crown could call Dr Skinner in reply. The judge considered the common law authorities on the Crown splitting its case and the statutory wording of s 151(3) of the Criminal Procedure Act 1986 (NSW). He ultimately directed that the Crown call Dr Skinner in its case and not in reply: [1], [31].
The starting point was the general common law principle that the Crown should present its case completely before the accused is called upon for the defence. The authorities discussed by the judge, including Shaw, Killick, Chin, Lawrence and Soma, address limits on Crown evidence introduced after the defence case has closed: [11]-[16]. The judge described the principle as concerned with the proper application of the Crown's onus and fairness to the accused: [18].
But the evidence at issue was intended to rebut a statutory defence for which the accused bore the onus of proof. The judge relied on the discussion of diminished responsibility in Melbourne v The Queen and considered that the common law cases did not prevent the Crown from adducing psychiatric evidence relevant only to rebutting the s 23A defence: [14], [17]-[18]. He distinguished Soma, where the evidence introduced in reply included admissions relevant to proof of the offence: [15], [17].
The statutory provision was decisive. Section 151(3), reproduced at [10], states that evidence tendered to disprove a contention of substantial mental impairment may, subject to any court direction, be given before or after evidence supporting that contention. Howie J read this as generally leaving the Crown a choice about timing, while preserving the trial judge's ability to direct otherwise where fairness required: [19]-[20]. He noted that a direction might be needed where evidence formed part of the circumstances of the killing, could prejudice the accused if given last, or was also relevant to a Crown element such as intent to kill: [20].
The judge distinguished between the evidence already called and the evidence that bore most directly on the timing question. Dr Keller's evidence principally concerned the accused's condition after hospital admission, the making of alleged admissions, and their reliability. The fact that some of the evidence also touched on mental state did not alone mean it was tendered to disprove the defence: [29]. Howie J emphasised that s 151(3) concerns evidence tendered for that purpose, rather than evidence that happens to have that effect: [29].
Professor Starmer's evidence was different. Although some pharmaceutical evidence concerned drugs given to the children, the judge considered the more important part to be the evidence about drugs taken, or purportedly taken, by the accused and their possible effect on his behaviour. That evidence principally related to the substantial-impairment defence, because the accused's intention to kill was not disputed: [30]. In those circumstances, the judge considered a direction appropriate and ordered the Crown to call Dr Skinner in its case: [31].
The judgment describes the pre-existing common law position as a general requirement that the prosecution present its case completely before the defence begins. The authorities discussed by Howie J recognised a limited discretion to permit evidence after the defence case, but generally treated late rebuttal evidence cautiously, especially if the need for it could reasonably have been anticipated or if the evidence was also relevant to proving the prosecution case: [12]-[13].
The judge did not treat the common law rule as an absolute prohibition on reply evidence directed to a defence. His discussion of Chin contrasted different statements in that case and preferred the view that the common law principle did not prevent rebuttal evidence concerning a defence such as substantial impairment where that evidence was not otherwise relevant to proving the offence: [12]-[13], [17]. He also read Soma as dealing with evidence that included admissions relevant to proof of the offence, rather than establishing that the Crown could never call reply evidence to rebut a defence: [15], [17].
Section 151(3) altered the position for evidence tendered to disprove substantial mental impairment. On the judge's reading, it gave the Crown a general choice whether to call such evidence in its case or in reply, subject to a court direction: [19]-[20]. The judgment compared that mechanism with the former s 405A(4) of the Crimes Act and the related s 150(5) of the Criminal Procedure Act, which concerned rebuttal of an alibi. The judge referred to Blewitt as recognising that the alibi provision altered the old common law rule, while leaving open that reply evidence might still be unfair in some circumstances: [22]-[23].
The practical significance is that statutory permission to call rebuttal evidence in reply does not eliminate judicial supervision. Howie J treated fairness as the basis for a possible direction and identified considerations that might bear on it: [20], [24]-[25]. The judgment therefore describes a qualified statutory departure from the common law sequence, rather than a rule that all Crown rebuttal evidence may be placed last without scrutiny.
At [10], s 151(3) is reproduced: evidence to disprove substantial impairment may be given before or after evidence supporting the defence, “subject to any direction of the Court”. In plain English, the Crown can ordinarily choose the timing, but the judge can control it.
At [20], Howie J says that, “on its face”, the provision generally gives the Crown a discretion about calling rebuttal evidence in its case or in reply. He identifies examples where a direction might be needed: evidence forming part of the circumstances of the killing, evidence with prejudicial effect if heard last, and evidence also relevant to a Crown element such as intent to kill. These are examples, not a closed list.
At [21], the judge says he found it difficult to see why the court would usually interfere with the Crown's discretion where the evidence was expert opinion relevant only because the defence intended to rely on s 23A. That passage explains why the court did not regard the mere fact that the evidence was psychiatric as sufficient to require the Crown to call it in its case.
At [29], Howie J distinguishes evidence “tendered to disprove” substantial impairment from evidence that merely happens to disprove it. In plain English, the purpose for which the evidence is led matters. Evidence relevant to another part of the Crown case does not automatically become s 151(3) rebuttal evidence just because it also bears on the defence.
At [30]-[31], the judge applies that distinction. Professor Starmer's evidence about the accused's own drug use and its possible effects was principally relevant to the defence, not an essential part of proving the Crown case where intent to kill was undisputed. The judge therefore directed the Crown to call Dr Skinner in its case. The ruling is about the sequence of evidence, not a finding about the ultimate effect of the accused's mental condition.
The decision is most directly relevant to criminal proceedings in which an accused raises substantial mental impairment under s 23A and the Crown proposes to call evidence to rebut that contention. The statutory setting matters: the judgment's construction concerns s 151(3), which expressly addresses the timing of evidence to disprove a substantial-impairment contention: [10], [19]-[20].
The reasoning is particularly relevant where the Crown proposes to call expert evidence, such as psychiatric or medical opinion, that is directed to the defence and is not otherwise relevant to proving an element of the offence. Howie J considered that such evidence could ordinarily be called in reply under the statutory provision, though a fairness-based direction remained possible: [17]-[21].
A different analysis may arise where the evidence also bears on an element of the Crown case, or forms part of the surrounding facts and circumstances. The judge identified these as possible grounds for requiring the evidence to be called in the Crown case: [20]. The judgment also indicates that evidence merely touching on mental state is not necessarily evidence tendered to disprove the defence: [29].
The facts here included an undisputed intention to kill, psychiatric disagreement about the effect of a personality disorder, and evidence about alcohol and drugs. The judge treated the pharmaceutical evidence about the accused's own consumption and possible behaviour effects as defence-related, while distinguishing evidence that had another purpose in the Crown case: [7]-[8], [29]-[30]. The ruling should therefore be read in light of the statutory provision and the particular relationship between the proposed evidence and the issues at trial.
The supplied judgment contains no later decisions applying, distinguishing, affirming or criticising R v Fraser. It refers to earlier authorities, including Shaw, Killick, Chin, Lawrence, Soma, Melbourne, Niven, Blewitt and Heuston, but those citations do not establish how later courts treated Fraser: [11]-[16], [23]-[24].
Accordingly, the later treatment of this decision cannot be determined from the supplied source. The judgment's own account of the law is that s 151(3) modifies the common law rule for substantial-impairment rebuttal evidence, subject to a judicial direction based on fairness: [19]-[20]. Any account of subsequent appellate treatment would require sources beyond the judgment provided here.
The judgment does not define a comprehensive test for when fairness requires a direction under s 151(3). It gives examples involving the circumstances of the killing, possible prejudice from evidence being heard last, and evidence also relevant to an element of the Crown case: [20]. It also refers to the possible inflated importance of reply evidence and other fairness considerations discussed in Heuston: [24]. The judgment does not specify how those considerations should be weighed in every case.
The distinction between evidence “tendered to disprove” the defence and evidence that merely happens to bear on it may require close attention to the purpose and context of the evidence: [29]. The judgment does not set out a general method for resolving mixed-purpose evidence, where a witness's testimony has both Crown-case and defence-rebuttal relevance.
The relationship between s 151(3) and all aspects of the common law rule is also addressed only in the setting before the judge. Howie J held that the statutory provision displaced the common law restriction for this category of evidence, but continued to recognise the court's power to intervene on fairness grounds: [19]-[21]. The source does not resolve every possible interaction between the provision and common law trial procedure.
Finally, the ruling did not determine whether the accused had established substantial impairment or whether the proposed expert evidence was ultimately persuasive. It decided only the order in which the Crown should call Dr Skinner: [1], [31]. The judgment itself therefore leaves the merits of the defence and the trial verdict outside its disposition.
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CITATION : R v Fraser [2003] NSWSC 965 HEARING DATE(S) : 24/10/2003 JUDGMENT DATE : 27 October 2003
JUDGMENT OF : Howie J at 1 DECISION : The Crown is directed to call evidence of Dr Skinner in its case and not in reply.
CATCHWORDS : Criminal Law and Procedure - Practice and Procedure - Course of evidence - Crown witness to rebut defence under s 23A of Crimes Act - direction sought under s151(3) of the Criminal Procedure Act - relevant considerations. Crimes Act 1900 - ss 23A, 405A(4), 428A LEGISLATION CITED : Criminal Procedure Act 1986 - ss 150(5), 151(3) Evidence Act (QLD) Shaw v The Queen (1952) 85 CLR 365 Killick v The Queen (1981)) 147 CLR 565 The Queen v Chin (1985) 175 CLR 671 Lawrence v R (1981) 38 ALR 38 CASES CITED : Soma v The Queen (2003) 77 ALJR 849 Melbourne v The Queen (1999) 198 CLR 1 Niven v The Queen (1968) 118 CLR 513 Blewitt v The Queen (1988) 62 ALJR 503 Heuston (1966) A Crim R 213 PARTIES : Regina v Steven Anthony Fraser FILE NUMBER(S) : SC 70013/03 COUNSEL : M. Tedeschi QC with J. Cash - Crown J. Stratton SC with G. Ikners - Accused SOLICITORS : C.K. Smith - Crown D.C. Chambers & Associates - Accused
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUDGMENT 1 His Honour: These are my reasons for directing the Crown to call evidence of a witness, Dr Skinner, in its case and not in reply. 2 The accused, Stephen Anthony Fraser, stands trial on three counts of murder, the victims in each of the charges being one of his three young children. When he was arraigned before the jury panel, the accused pleaded not guilty to each count of murder but guilty to manslaughter. The Crown refused to accept those pleas in full discharge of the indictment. The jury was then empanelled and the trial on the counts of murder proceeded. 3 In his opening to the jury the Crown Prosecutor stated that he anticipated that the real issue in the trial would be the accused's claim that, at the time of the killing of each of his three children, he was substantially impaired by reason of an abnormality of mind arising from an underlying condition. This is a defence to a charge of murder under s 23A of the Crimes Act. 4 Defence counsel, Mr Stratton SC, in his opening to the jury told them that, by his pleas of guilty to manslaughter, the accused accepted legal and moral responsibility for the deaths of the children but asked that the jury find him guilty of manslaughter on the basis of the defence of substantial impairment. 5 It is clear, from not only the opening addresses but also the manner in which the trial has been conducted, that the only issue before the jury is whether the accused has proved, on the balance of probabilities, the defence contained in s 23A. The evidence as to the accused's mental state at the time of the killing of the three children is not significantly in issue and there is no dispute that at the time that the accused killed each of the children he intended to do so. Therefore, but for the defence of substantial impairment being established by the accused, he would be guilty of the three counts of murder alleged against him. 6 The question that arose for my determination was whether the Crown should call its evidence to rebut the defence in the Crown case or in reply to the defence case. As I understood the situation, it was the intention of the defence that the accused would not give evidence himself, but would adduce evidence from a psychiatrist, Dr Westmore, in support of the defence under s 23A. The Crown had indicated that it intended to call evidence from a psychiatrist, Dr Skinner, to rebut the evidence that it expected Dr Westmore to give. 7 Both psychiatrists have reached the opinion the accused suffered from a personality disorder at the time of the killing of his children, but there is a dispute as to the affect of that disorder upon the his mental processes at the time of the killing. There is a complicating factor in that the accused consumed both alcohol and prescribed drugs in order to be able to bring himself to kill his children. Section 23A(3) states:
If a person was intoxicated at the time of the acts or omissions causing the deaths concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
Intoxication means intoxication because of the influence of alcohol, a drug or any other substance.
Self-induced intoxication means any intoxication except intoxication that:
(a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a person authorised under the Nurses Act 1991 to practise as a nurse practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage limit recommended, in the manufacturer's instructions. 8 The Crown will be submitting to the jury, that even, if it finds that the accused had a relevant mental impairment at the time of the killings, they would not find that he was substantially impaired by it. The Crown would argue that, notwithstanding that impairment, the accused had sufficient judgment, awareness, and control that he was unable to bring himself to kill the children without the assistance of alcohol and other drugs to either overcome his nature inhibition against performing such an act or to give him the "Dutch courage" he required to strengthen his resolve to carry out his wishes. It is only in that way that his ingestion of alcohol and drugs is relevant to a determination of whether the defence ins 23A is made out. 9 When counsel for the Crown first raised the issue of when he should call Dr Skinner, it was on the basis that either the common law or s 23A(7) gave the Court a discretion to permit the Crown to call evidence in rebuttal of the evidence in the accused's case adduced to establish the defence. It was thought, apparently, that such a discretion had to be conferred on the trial judge because of a line of common law authority, particularly in the High Court, that prohibited the Crown from splitting its own case. I was provided with decisions of single Justices of this Court allowing the Crown to call its evidence in reply on the basis of a discretion residing in the trial judge. 10 However, during the course of argument and after I had indicated my initial view that the section contained no such discretion, reference was made to s 151(3) of the Criminal Procedure Act. Section 151 concerns the obligation of an accused to notify the Crown of an intention to adduce evidence tending to prove the defence under s 23A. Section 151(3) provides:
Any evidence tendered to disprove a contention of substantial mental impairment may, subject to any direction of the Court, be given before or after evidence is given to prove that contention.
In this section a contention of substantial mental impairment means a contention by the accused person that the accused person is not liable to be convicted of murder by virtue of section 23A of the Crimes Act 1900. 11 Mr Stratton relied upon the common law cases concerned with the conduct of the Crown case, to which I briefly referred earlier. These are the High Court decisions in Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565 and The Queen v Chin (1985) 175 CLR 671. In addition to the cases to which Mr Stratton referred can be added Lawrence v R (1981) 38 ALR 38, and Soma v The Queen (2003) 77 ALJR 849. Mr Stratton submits that, throughout this line of authority, the High Court has insisted that the Crown call evidence in its case, not only where the evidence supports an element of the offence, but also where the evidence rebuts a defence of which the Crown had notice. 12 The high water mark of this argument seems to be the following passage in the judgment of Dawson J (with whom Mason J agreed) in Chin at 685:
The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, for example, where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick's case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expressions in the rules which have been laid down: see Killick's case . If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case. There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature: see Archbold: Criminal Pleading, Evidence and Practice 41st ed, 1982, para 4-414, and the cases there cited. 13 That passage however should be compared with the following from the joint judgment of Gibbs CJ and Wilson J at 676 (citations omitted):
The principles that govern the exercise of the discretion of a trial judge [to allow the prosecution] to call evidence after the close of the case for the defence have been discussed in this court in Shaw v The Queen ; Killick v The Queen and Lawrence v R . The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: R v Levy and Tait (1966) 50 Cr App R 198 at 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief. (my underlining) 14 In Melbourne v The Queen (1999) 198 CLR 1 McHugh J said at [9]:
………………………A plea of diminished responsibility, like a plea of insanity, is a plea of confession and avoidance. Any person, relying on the plea, must prove it. In this court, the accused conceded that this was so. Until an accused person tenders evidence in support of the claim of diminished responsibility, the Crown has no issue to meet. It is not like the common law "defences" of provocation or "self-defence" which the Crown must negative once they are fairly raised on the evidence.
15 The latest statement of the principle against the Crown splitting its case is in Soma. That was a case where the Crown introducing evidence of admissions made by the accused in an interview with police after the accused had given evidence and in order to rebut statements made by the accused during the course of his evidence. The majority of the High Court held that the introduction of the evidence, which should have been part of the Crown case if it were to be tendered at all, was a breach of the principle established by the decisions, to which I have already referred, and that nothing in the provisions of the Evidence Act (QLD), concerned with the admissibility of an inconsistent statement, derogated from that general principle. 16 In the course of its judgment, the majority referred to Niven v The Queen (1968) 118 CLR 513. Their Honours stated:
[ 34] Niven concerned, most immediately, the operation of s371(i) of the Criminal Code (Tas) which provided that in proceedings upon the trial of an indictment "[e]vidence in rebuttal may be called by the Crown if the judge is of opinion that in the circumstances of the particular case it should be allowed". The Criminal Code (Qld) contains no equivalent provision. In Niven , the court held that the expression "evidence in rebuttal" should be understood as applying to all evidence sought to be adduced by the prosecution after the accused's defence was complete. It therefore extended to evidence given to prove a prior inconsistent statement by the accused. It was against the background of that conclusion that the court said [at 516]: It would therefore be advisable, in our opinion, for a trial judge as well as for the prosecutor, to bear in mind at the time the cross-examination [about a prior inconsistent statement] is being entered upon that a serious problem may later arise if the prosecutor seeks to adduce evidence to establish the prior inconsistent statement, particularly if that statement amounts to or includes an admission by the accused of guilt or of some significant fact in relation to its proof.
As the court went on to say, in exercising the discretion whether to permit the prosecution to adduce evidence of that prior inconsistent statement in rebuttal, consideration would have to be given to "the possibility of prejudice to the accused as well as of prejudice to the prosecutor which could have been avoided by appropriate action taken at an earlier point in the trial".
[35] Although what was said in Niven was directed to s 371(i) of the Criminal Code (Tas), the principles which it states apply equally to this case. Indeed, there is no reason to think that they do not apply generally to the trial of indictable crime in Australia, unless and until this aspect of the practice and procedure in such trials is explicitly modified by statute. 17 I do not believe that there is anything in the line of authority to which I have referred or the principle that the Crown must not split its case, that would prevent the Crown from adducing evidence of a psychiatrist, as to the mental state of the accused at the time of the killing, to rebut evidence in support of the defence under s 23A and where that evidence is not otherwise relevant to prove the offence. In so far as Dawson J stated anything in Chin to the contrary, I believe it is inconsistent with other statements made in the cases to which I have referred and, in particular, with what was said in the joint judgment of Gibbs CJ and Wilson J in Chin in the passage quoted above. There is nothing in Soma that suggests that the principle is not as stated in the joint judgment. In Soma the evidence called in reply contained evidence of admissions in proof of the offence charged. 18 Having regard to what was said by McHugh J in Melbourne and simple logic, I cannot see any rational policy that would require the Crown to call evidence, which is admissible and relevant only to rebut a defence under s 23A, in its case. I can appreciate why the Crown cannot choose to split its case in reply so that, if it calls evidence in its case-in-chief for the purpose of rebutting the defence, it may not be permitted to call further evidence in reply. The principle enunciated in the High Court decisions, to which I have referred, is concerned with the proper application of the onus of proof on the Crown and fairness to the accused. I fail to see how generally speaking it could be unfair to the accused to permit the Crown to call evidence of a psychiatric nature in reply to evidence in proof of a defence of substantial impairment where the onus to prove that defence is on the accused. 19 But whatever may have been the situation at common law, it seems clear to me that the principle has been affected by s 151(3). I can see no reason why that section should be construed other than in accordance with its terms and unaffected by any common law rule that it may have displaced. 20 On its face s 151(3) provides the Crown generally with a discretion as to whether to call evidence to rebut the defence under section 23A either in its case-in-chief or in reply. However, in an appropriate case the trial judge may be required to intervene and give a direction as to when that evidence should be called. This will usually be necessary because it would be unfair to the accused if the evidence were to be adduced in reply. The need for that direction might arise, for example, because the evidence relied on by the Crown is part of the facts and circumstances surrounding the killing and, therefore, would more appropriately be adduced in the Crown case. Another example may be where the evidence has a prejudicial effect that might operate unfairly against the accused if it were the last evidence to be heard by the jury. Yet another example may be where, although the evidence is tendered to rebut the defence, it is also relevant to either establish or disprove an element in the Crown case, such as an intention to kill. 21 But where the evidence is expert opinion given by a professional such as a psychiatrist or medical practitioner, and is relevant only because the defence intends to rely upon s 23A, I find it difficult to see how the intervention of the Court to interfere with the discretion vested in the Crown by s 151(3) could usually be justified let alone warranted. 22 There is no novelty, in this State, in the fact that a provision has displaced the common law principle against the Crown splitting its case. In relation to alibi evidence it has long been the case that, contrary to the common law rule, the prosecution has had a discretion whether to call the evidence rebutting alibi in its case or in reply. Section 405A(4) of the Crimes Act, before the repeal of that section, stated:
Any evidence tendered to disprove an alibi may, subject to any direction by the Court, be given before or after evidence is given in support of the alibi. A similar provision is now found in s 150(5) of the Criminal Procedure Act . 23 In Blewitt v The Queen (1988) 62 ALJR 503, the High Court said (at 506):
Plainly enough [s 405A(4)] alters the old common law rule that a judge should not permit the Crown to adduce evidence after the accused has closed his case for the purpose of rebutting an alibi which the Crown should reasonably have foreseen would be raised at the trial: Killick. But it may well be that, notwithstanding s 405A(4), there are some situations in which the giving of evidence of a rebuttal of an alibi in reply would so unfairly prejudice an accused as to amount to a miscarriage of justice.
24 In respect of the same section, the Court of Criminal Appeal in Heuston (1996) A Crim R 213 stated at 244:
The present case provides a good example of the need for the flexibility given by a provision such as s 405A(4), and of the undesirability of determining these matters by reference to technical and inflexible rules of evidence, including rules about splitting of cases. It illustrates the desirability of determining the matter by reference to considerations of fairness, and by judicial discretion.
One relevant consideration of fairness will often be that referred to by the High Court in Killick (at 569). Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. Other considerations relevant to fairness may include the position in which an accused will be left if evidence is called in reply, and the matter of the Crown's duty of disclosure……... 25 It seems that in respect of s 405A the question as to when in the proceedings the rebutting evidence should be called was usually raised by an application by the Crown for a direction under the section that it be permitted to call the evidence in reply rather than in the Crown case. I assume that this form of procedure arose in deference to the common law rule rather than as a result of anything in the wording of the section. It is perhaps of no real consequence how the issue is raised, and the Crown is in the best position to know whether it intends to call the evidence in its case or in reply. But the procedure adopted should not be allowed to dictate the result. In my view, it should be borne in mind that s 151(3) is permissive in that it relieves the Crown of the restriction placed upon it by the common law. The onus is upon the defence to show why the Crown should be subject to an order preventing it from calling the evidence in reply. 26 Why then should I make a direction requiring the Crown to call the evidence of Dr Skinner in its case? Mr Stratton has submitted that it is significant that she has changed her opinion as to whether the defence has been made out. However, I do not understand why that fact should require the Crown to call the witness in its case. The jury would clearly be made aware that she has changed her opinion and the reasons why she has done so. The fact that she has changed her view as to the effect of the accused's mental disorder on his behaviour is hardly going to bolster her evidence or unfairly undermine that of Dr Westmore who is to be called by the accused. 27 Mr Stratton relies also upon statements in the High Court as to the possible disadvantage to an accused by the fact that the Crown's evidence in reply is the last evidence that the jury hears. In Heuston the fact that the Crown's evidence in reply convincingly disproved the accused's alibi and that it was "left ringing in the ears of the jury" did not mean that such unfairness arose that there was a miscarriage of justice. I do not believe that the accused is treated unfairly just because the Crown's evidence on the issue of substantial impairment may be the last evidence adduced before the jury. It should be noted, of course, that in this State the accused has the right of last address to the jury. 28 Finally Mr Stratton has submitted that in this case the Crown has split its case on the issue of rebutting the defence under s 23A. It was contended that, in questions asked of Dr Keller and Professor Starmer in examination-in-chief, the Crown adduced evidence as to the accused's mental condition on or about the time of the killing in order to rebut the defence. The argument is that, having commenced to lead evidence on that issue, the Crown should be required to continue to lead evidence on it in its case. 29 Dr Keller was called principally to give evidence concerning the accused's mental state after he was admitted to hospital shortly after the killing of the children. The Crown is alleging that the accused made admissions while at the hospital. The evidence of Dr Keller was relevant, to some degree, as to the making of those admissions and their reliability. But the evidence went further than that and the Crown adduced evidence from the witness of a more general nature about the accused's mental state at the time. However, had this been the only evidence led by the Crown to rebut the defence, I would not have made any direction as to when the Crown should call the evidence of Dr Skinner. It will not be the case that a direction should be made under s 151(3) just because there has been evidence adduced in the Crown case that touches upon the issue raised by the defence. Section 151(3) is concerned with evidence that is "tendered to disprove the contention of substantial impairment" and not evidence that happens to disprove the contention but is not tendered for that purpose. 30 Professor Starmer was called to give pharmaceutical evidence in relation to drugs that were ingested by the accused and the children. Although the Crown submitted that his evidence was relevant to the effect of drugs on the children, that evidence was not essential in proof of the Crown case. There is no apparent dispute that the accused gave Mogadon tablets to the children in order to subdue them so that he could more easily drown them in the bath. Of more importance was the evidence that the witness gave about the drugs taken by the accused, or purportedly taken by him, and how they might have affected his behaviour. That evidence was, on the issues before the jury, relevant to whether the accused could establish the defence under s 23A. It was not simply a case of it being simply convenient for the witness to give that evidence while giving other evidence relevant to the Crown's case. His evidence was principally concerned with an issue about the nature of the drug taken by the accused and the effect it may have had upon him. This is an issue that relates to the defence and not the Crown case, given that there is no dispute that the accused intended to kill the children. 31 In those circumstances it seemed to me to be appropriate to direct the Crown to call the evidence of Dr Skinner in its case. **********
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R
Fraser
(1952) 85 CLR 365
(1985) 175 CLR 671
(1981) 38 ALR 38
(2003) 77 ALJR 849
(1999) 198 CLR 1
(1968) 118 CLR 513
(1988) 62 ALJR 503
(1981) 147 CLR 565
The Crown was directed to call evidence from Dr Skinner in its case and not in reply: [1], [31].