R v Frazer [2001] VSCA 101

Court of Appeal (Vic)|2001-06-29|Before: PHILLIPS, CHERNOV and VINCENT, JJ.A.

The applicant now seeks leave to appeal against conviction and sentence. In her notice of application in relation to the conviction, the applicant relied on three stated grounds, namely:

(a) The convictions were unsafe and unsatisfactory in that the jury could not exclude the reasonable possibility that the collision occurred as a result of the applicant's suffering an epileptic fit.

(b) His Honour erred in not withdrawing the case from the jury at the end of the Crown case because on the evidence, the jury could not have excluded the reasonable possibility that the collision occurred as the result of the applicant's suffering an epileptic fit.

(c) His Honour failed to define further "gross negligence" when requested so to do by the jury after it had retired to consider its verdict.

On 24 May 2001 the registrar gave leave to the applicant to add a fourth ground, namely:

(d) There are new facts and circumstances bearing on the issue whether the applicant was in conscious and voluntary control of the vehicle at the time of the collision, namely, new information about the medical conditions from which the applicant suffers. In the light of the new evidence, the conviction should be quashed and a verdict of not guilty entered.

In her notice of application relating to sentence, the applicant claimed that the sentence imposed was manifestly excessive in the particular circumstances. Four particulars of the manifest excess ground were set out which need not be repeated here. On 24 May 2001 the Registrar granted leave to the applicant to add a further ground, namely, that there were new facts and circumstances which indicate that a different sentence should have been passed.

The circumstances leading to the offences were these. In February 1996, the applicant was diagnosed in New South Wales by Dr. Crimmins, a neurologist, as suffering from juvenile myoclonic epilepsy. Apparently, Dr. Crimmins considered the possibility of the applicant suffering from pseudo seizures, also known as psychogenic seizures (which are of shorter duration than true epileptic seizures and which do not impair consciousness to the same extent). Given her symptoms and history, however, Dr. Crimmins concluded that there was a high probability that the applicant suffered from epilepsy. He prescribed Epilim for her, but she stopped taking it a few months before the events in question and in March 2001 obtained a driver's licence (without disclosing to the Roads Corporation that she suffered from epilepsy). At the time, she and her two young sons, one aged six years and the other approximately eight months, were living with Alan Michael Minutoli ("Minutoli") in Melton. He had recently lost his driver licence with the result that the applicant often drove his car.

At approximately 5.05 p.m. on the Sunday in question, the applicant collected Minutoli from his place of work in Kensington (which is located approximately 4.5 kilometres from the scene of the collision) with the view to driving him home to Melton. The car was a black, automatic, V8 SS Commodore which was capable of reaching high speed over a relatively short distance. The applicant also had with her in the car, her two sons who were strapped in in the back seat. She proceeded to drive the car with her passengers in a westerly direction along Ballarat Road. There was no issue before us about the conditions. The relevant section of Ballarat Road, which runs generally east-west and is straight, carries four lanes of traffic, two lanes being devoted to east-bound traffic and the other two, west-bound traffic. There is an unbroken white line in the centre which marks off the two sets of lanes. On the late afternoon in question, the weather was fine, the roadway was dry and the visibility was good, although it was getting close to dusk. West-bound traffic in the relevant area was heavier than east-bound traffic.

At the intersection of Ballarat Road and Gordon Street (which is the second main street to the east of Stanley Street) the applicant's vehicle stopped in the right hand lane behind two cars which were waiting for the red lights to change so they could proceed to turn right into Gordon Street. A vehicle driven by Christine Sutton was stationary at that intersection in the left hand lane of Ballarat Road, adjacent to the applicant's vehicle. As the lights changed Mrs. Sutton drove on but the applicant was prevented from proceeding by the cars in front of her waiting to turn. Shortly after passing through the next set of lights at the intersection of Ballarat Road and Rosamond Street, Mrs. Sutton changed to the right hand lane in order to avoid being held up by cars which usually slowed down to turn left into the Caltex service station in Ballarat Road. She drove at approximately 60 kilometres per hour. When she was adjacent to the Caltex service station which is within 100 metres or so of Studley Street, the applicant's vehicle passed her on her left side, travelling at approximately 80-90 kilometres per hour, then turned into the right hand lane. Immediately in front of the applicant were two stationary vehicles waiting to turn right into Havelock Street. Still travelling at the speed referred to earlier, the applicant's vehicle then swerved into the left lane and, almost immediately after overtaking the two stationary vehicles, careered across into the right lane and, being out of control, skidded across the centre line of Ballarat Road towards the oncoming east-bound traffic and was thereupon involved in the collisions to which I have referred.

When the applicant was first seen by helpers who came to the scene, she was slumped over the steering wheel apparently unconscious. She was pinned in the driver's seat with the steering wheel pressed against her chest. An ambulance officer who attended said that she had no recollection of the impact which suggested to him that she lost consciousness at the point of impact and was suffering retrograde amnesia. Approximately 25 minutes after his arrival, the applicant suffered a seizure of about 20 seconds duration which "self-resolved". Apparently, the applicant's recovery of full orientation occurred within a couple of minutes. She was then taken to the Western General Hospital where she had another seizure at approximately 6.40 p.m.

The police expert evidence was to the effect that the tyre marks left on the road by the applicant's vehicle immediately prior to the collision were consistent with her vehicle being at that time under increased pressure from the accelerator. The marks also indicated a steering angle which was too excessive for the driver of the vehicle to maintain control at that time. One of the police witnesses, Sergeant Bellion concluded that:

- immediately prior to the impact, the applicant's vehicle had over-steered to the right and was under heavy acceleration at the time of the collision; and

- at the time of the over-steering, the speed of the applicant's vehicle was likely to have been around 87 kilometres per hour and was travelling at that speed when it struck the deceased's vehicle.

The applicant was interviewed by the police on 5 November 1998 in the course of which she said that she could not recall the collision. She said that she had often driven Minutoli's car and recalled having "a little argument" with him in the car not long before the collision but that it was sorted out and that thereafter she did not feel a seizure coming on and drove normally at 60 kilometres per hour. The applicant told the police that she sometimes had epileptic fits which she afterwards did not recollect and that she did not recollect having a seizure which was observed after the collision. She claimed that a seizure usually occurred due to stress, when she was upset or lacked sleep.

In his evidence, Minutoli agreed that, not long before the collision, he and the applicant had an "argument" in the car about his late homecoming on the previous night; the applicant accused him of having slept with another woman and would not accept his denials. Minutoli said that he was very tired and, in the end, ignored the applicant's allegations and started to go to sleep and then the collision occurred. He claimed that, after the argument, the applicant did not appear upset or angry and he estimated that, by the time he "turned off", the applicant was driving at 70 or maybe 80 kilometres per hour. He did not say that he noticed that anything unusual or untoward about the applicant prior to the collisions.

Dr. Crimmins, who was in New South Wales, gave evidence at the trial by way of video link. He explained his diagnosis of the applicant in February 1996 and the common manifestations of an epileptic fit. He expressed the view that a person who drove as the applicant did, would not have been suffering at the time from an epileptic fit because such a person would not have had the ability to manoeuvre the car successfully around the stationary vehicles. In cross-examination, Dr. Crimmins agreed that a person suffering a partial seizure would experience jerking of the body but would not necessarily suffer complete loss of consciousness. He also agreed in cross-examination that he could not exclude as a reasonable possibility that the applicant had either a partial or generalised seizure just prior to the collision.

Dr. Odell of the Victorian Institute of Forensic Medicine also agreed in cross-examination that a person like the applicant could suffer from partial seizures during which partial consciousness was retained although he did not think that that would satisfactorily explain the applicant's evasive action of driving at high speed around two stationary cars. He said that a driver who is suffering from a partial seizure has limited ability to take evasive action (as the applicant did). He was also of the view, which he repeated on a number of occasions, that the applicant would not have been able to take the evasive action of driving around the two stationary cars while suffering a seizure. Nevertheless, he agreed with the applicant's counsel that he could not exclude the reasonable possibility that the applicant suffered some kind of seizure shortly prior to the collision.

The applicant did not give evidence at the trial, although she relied on her record of interview which was tendered as supporting her case that, shortly prior to the collision, she suffered from a seizure by reason of which she lost control of the vehicle. In the conduct of her case before the jury, her counsel placed great reliance on the concessions by Drs. Cummins and Odell that they could not exclude, as a reasonable possibility, that the applicant suffered a seizure shortly prior to the collision.

This, then, was the gist of the relevant evidence that was before the jury. I now turn to consider the applicant's grounds.

At the hearing of the appeal Mr Wraith, who appeared for the applicant, agreed that grounds 1 and 2 essentially raise the same point and conceded that the applicant's driving was erratic. It was common ground at the trial that, if the applicant had suffered an epileptic seizure shortly prior to the collision, it could not be said that she had driven her car just prior to the collision voluntarily and consciously so that she could not be properly convicted of the offences with which she was charged. Mr. Wraith contended, principally in reliance on Knight v. The Queen[1] that, since the two expert witnesses could not exclude the reasonable possibility that the applicant had suffered a seizure shortly prior to the collision, the jury could not have properly excluded this hypothesis which was consistent with innocence and consequently, could not have properly convicted her.

In Knight, the majority held[2] that the real possibility that the shooting was accidental could not reasonably have been excluded by the jury. The situation here, however, is materially different in that, on the whole of the evidence, it was reasonably open to the jury to exclude the hypothesis on which the applicant relies. Put another way, the hypothesis here consisted of exculpatory evidence. It could have been rejected by the jury if they were satisfied beyond reasonable doubt on the whole of the evidence that the applicant had not suffered a seizure of such a kind as to render her not responsible for her driving. There was, of course, no direct evidence of the applicant suffering a seizure at the relevant time and almost all the other evidence pointed to the applicant losing control of the vehicle otherwise than by reason of a seizure. Thus, there was the evidence of her erratic driving at very high speed, the opinions of Dr. Cummins and Dr. Odell that, given the apparently deliberate avoiding action on the part of the applicant of driving around two stationary cars, she was unlikely to have been subject to an epileptic seizure. There was also the evidence of Minutoli that the applicant drove at 70 to 80 kilometres per hour before she passed Mrs. Sutton's car. Moreover, Minutoli did not observe any jerking of the applicant's body which he would have done if that had occurred, at least until he started to fall asleep at the conclusion of the "argument" with the applicant. His evidence strongly suggested that nothing untoward occurred in relation to the applicant's body movements prior to the collision. After all, he sat alongside her in the car and the jury may well have considered that if the applicant had suffered an epileptic seizure whilst driving, Minutoli would have become aware of it. Furthermore, it was open to the jury to conclude that the experts did not reject the hypothesis in question because, having regard to the range of possible scenarios that could arise in the complex area of epilepsy, they were not prepared to reject the postulated hypothesis without empirical evidence that would justify rejection of epilepsy.

It was argued for the applicant that the jury could not have properly rejected the hypothesis because:

(a) the applicant's driving was "under control" before she reached the Rosamond Street intersection;

(b) the applicant suffered two seizures shortly after the collision.

Although (a) probably correctly describes the applicant's driving at the point referred to, it is only one item of evidence that was before the jury and could not be regarded as determinative of the issue: it really says nothing about the subsequent loss of control. It was still open to the jury to conclude beyond reasonable doubt on all the evidence that the applicant's inability to control the vehicle after it passed the two stationary cars was not brought about by an epileptic seizure; rather, it was the speed and over-steering that brought about the loss of control of the vehicle. Similarly, the matter in (b) above would not preclude the jury from properly rejecting the possibility of seizure, particularly bearing in mind that there was no evidence at all that the two seizures suffered by her after the collision pointed to her having suffered a seizure prior to the collision. On the contrary, the evidence was that the two seizures were probably brought on by the trauma of the collision.

It should also be borne in mind that the jury were properly charged as to the obligation of the Crown to satisfy them beyond reasonable doubt that the applicant drove the car as she did consciously and voluntarily. In that context, his Honour made it plain that it was part of the applicant's case that they should not be satisfied beyond reasonable doubt that the accused was acting consciously and voluntarily in driving the car because there was a reasonable possibility that she suffered an epileptic seizure in the course of her driving. Moreover, his Honour emphasised that there was no onus on the accused to show that she had an epileptic seizure at the time; it was for the Crown to satisfy the jury beyond reasonable doubt that the applicant "was not having a fit or going through [an] aura before a fit or the period of confusion after the fit to the extent that her manner of driving was not conscious or voluntary". It should be said that his Honour's charge was not challenged by the applicant before us.

In the circumstances, whether there was a reasonable possibility that the applicant suffered an epileptic seizure shortly prior to the collision was an issue that was properly left to the jury and, in my view, it was open to them on all the evidence relating to the applicant's driving and her medical condition, to be satisfied beyond reasonable doubt that there was no reasonable possibility that the applicant was impaired in her ability to control the car by reason of an epileptic seizure.

After the jury retired to consider their verdict and had deliberated for some time, they asked his Honour to define the word "gross" as it appears in the relevant definition of culpable driving in s.318(2)(b). In response, his Honour told them, in effect, that the word has a well known meaning and that it would confuse things for a judge to try and define further what is meant by it. It was claimed by the applicant that his Honour erred in not further defining "gross" as requested by the jury. Although not stated in terms, it was effectively submitted that this error produced a miscarriage of justice. In substance, it was first submitted by Mr. Wraith that his Honour should have assisted the jury by further describing the meaning of the word in question by reference to other adjectives. He argued that the Full Court in R. v. Stephenson[3] envisaged the trial judge so assisting the jury. It is true that in that case their Honours said[4] that there may be some circumstances where a further explanation of the words used in s.318 of the Crimes Act might be called for "eg if a jury indicated that it required further assistance". But their Honours went on to say, in effect, that if such elaboration was required, a way of achieving it was to compare civil negligence and the negligence required by the statute. Their Honours did not say that, in elaborating on the meaning of the term in question, it would be helpful if the jury did so by reference to other adjectives. On the contrary, they said that the word "gross" in the context of negligence has a natural and well understood meaning and if adjectives were used to explain it, the meaning of the adjectives might also have to be explained. Perhaps more importantly, as Phillips, J.A. pointed out in the course of argument, what their Honours said[5] was that adherence by the trial judge to the terms of the section when describing the content of the offence would not amount to a misdirection.

In the end, Mr. Wraith contended that his Honour should have, in effect, told the jury in response to their request for assistance, what he claimed was sanctioned by Callaway, J.A. in R. v. Wright[6]. In that case, in response to a jury request for "a better definition of the degrees, if we can get it, between negligence and gross negligence", the trial judge, after repeating to them his earlier charge on this issue, added the following:

"A rider may assist you if I say this. You would need to be satisfied that the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment".[7]

Mr. Wraith submitted that his Honour should have given the jury a similar direction when they sought his assistance.

It should be understood, however, that in Wright, it was the applicant who sought to attack the rider as effecting a restriction on the directions that had preceded it. Callaway, J.A. (with whom the Chief Justice and Charles, J.A. agreed) said that, in the context of the case, the rider would have been understood by the jury as further assisting them to distinguish between civil and criminal negligence. But his Honour did not say that, whenever a jury seeks clarification of the meaning of "gross", the trial judge must give a further explanation in terms of the rider or words to that effect.

In this case, the assistance to the jury that was contemplated in Stephenson was in any event provided by his Honour. In a careful and detailed charge, he emphasised to them on many occasions the distinction between civil negligence and the negligence required by s.318(2)(b) and stressed on six or seven occasions that they had to be satisfied beyond reasonable doubt that there was a gross departure from the civil standard of care before they could convict the applicant. The applicant's counsel took no exception to this. Similarly, when his Honour refused further to define "gross" as requested by the jury, the applicant's counsel made no complaint. Furthermore, when his Honour informed counsel before they commenced their addresses what he proposed to say in that regard, it was not suggested by the applicant's counsel that such a charge would be inadequate. Mr. Wraith said that the reason no exception was taken to the charge or to his Honour's refusal to define "gross" further was that he had earlier submitted to his Honour what the jury should be told in relation to the elements of the offence, but his Honour had rejected his submission. In my view, however, given what counsel had in fact submitted to his Honour in that regard, his Honour's rejection of counsel's submission could not have been a reason for not taking the exception if it was thought that his Honour erred in refusing to accede to the jury's request for more information (or if it was thought that what his Honour had told the jury in his charge was inadequate). What counsel raised with his Honour on the earlier occasion was what counsel proposed to tell the jury in his address. He said that he proposed to say, in effect, that the conduct forbidden by the section was conduct of such seriousness that it was deserving of punishment by imprisonment. His Honour told counsel that it would not be appropriate in his address to link the offence with punishment by imprisonment. At the same time, his Honour told the parties what he proposed to say to the jury. As I have said, there was no suggestion from the applicant's counsel that his Honour would err if he so charged the jury. His Honour's informal ruling was that counsel could not speak of "imprisonment" in the context of describing the seriousness of the offence: nor did it in some way anticipate counsel taking exception to his Honour's refusal further to define "gross" if and when the jury should, after the charge, seek further information about it. The failure to take exception to his Honour's response to the jury's request is a serious obstacle to the applicant's raising the complaint for the first time on appeal - Wright[8].

In R. v. Horvath[9], the Full Court said[10]:

"the proper course for the trial judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified by must be to a gross degree...to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury."

This approach was, in effect, sanctioned by the Full Court in Stephenson[11], by the President in R. v. Franks[12] and by Callaway, J.A. (with whom the Chief Justice and Charles, J.A. agreed) in Wright[13]. His Honour's direction as to the degree of culpability required by the section accorded with the requirements laid down by these authorities. As I have said, in emphasising the seriousness of the offence, his Honour drew with clarity the distinction between civil negligence and the negligence required by the section. In my view, no purpose would have been served to repeat this again by way of a response to the jury's question. Thus, in the circumstances of this case, his Honour did not fall into error when he refused to expound further the meaning of "gross" notwithstanding that he was requested to do so by the jury.

It was submitted on behalf of the applicant, that, since the date of sentence, new evidence has come to light which should result in the conviction being quashed. The new evidence is set out in the report dated 17 April 2001 of Dr. O'Brien of the Epilepsy Clinic at St. Vincent's Hospital. Dr. O'Brien says that, in his opinion, the applicant suffered from psychogenic epilepsy rather than from true epilepsy. According to Dr. O'Brien, although the aetiology and mechanism of psychogenic seizures is still controversial, it is generally believed that they have an underlying psychological cause (in contrast with epilepsy which is caused by an uncontrolled rhythmic discharge in the brain) and may be triggered by the person's reaction to stress. It was said that the practical consequence of this diagnosis for present purposes is that, while it is unlikely that a person suffering a general epileptic seizure would have been able to drive around the stationary vehicles as the applicant did, it was possible for someone suffering from psychogenic seizure to have done this. On the other hand, says Dr. O'Brien, it would be very unusual for someone to have a psychogenic seizure while driving at high speed because such seizures usually tend to occur in non-dangerous situations.

Mr. Wraith submitted that, in light of this fresh evidence, the conviction should be quashed; had it been before the jury at the trial, he argued, there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charges. It is trite that fresh evidence will not be received unless it is established, inter alia, that it could not have been obtained by the application of reasonable diligence prior to trial. Without going into details, the affidavit of the applicant's solicitor and the report of Dr. O'Brien which is exhibited to it, make it fairly clear that this requirement is satisfied. The applicant's advisers were entitled to rely on Dr. Crimmins' diagnosis and the diagnosis that the applicant might also be suffering from psychogenic epilepsy was not made until April 2001 in the circumstances to which I will refer later.

But, as Kenny, J.A. (with whom the President and Charles, J.A. agreed) made clear in R. v. Nguyen[14], "an appellate court cannot set aside a verdict on similar `fresh evidence' grounds unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial: see Gallagher v. R.[15] and Mickelberg v. R.[16]". One of the matters about which the court must be satisfied before it orders a new trial on the basis of "fresh evidence" is that there is a significant "possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial" - Gallagher v. R.[17] and Nguyen[18].

Mr. Wraith submitted that, if the new evidence had been before the jury, it would have introduced a "new dimension" into the case, namely, the jury would or might have considered whether the applicant was stressed by reason of the "argument" she had with Minutoli concerning his late homecoming and as a result experienced a psychogenic seizure shortly prior to the collision. But such an analysis would necessarily have to disregard the evidence of Minutoli and the claim by the applicant in her record of interview to the effect that the "argument" did not leave her with a residual feeling of stress. Mr. Wraith, however, argued that there was a significant possibility that the jury would have rejected that evidence and would have considered that the "argument" resulted in the applicant suffering stress leading to psychogenic seizure and to loss of control of the car. Such a train of reasoning, said Mr. Wraith, would have led to an acquittal.

In my view, however, there is no significant possibility that the jury could have arrived at verdicts different to those which they reached simply because of the introduction of the O'Brien material. First, there is a degree of unreality in the suggestion that, had the opinion of Dr. O'Brien been placed before the jury, they might have disregarded the claims of the applicant and the evidence of Minutoli as to whether she was feeling stressed after the "argument". There would be no basis on which the jury could come to such a conclusion. Moreover, it is almost inconceivable that counsel for the applicant would have sought to persuade the jury to disregard what the applicant said in her record of interview about this matter. Not only would there be no basis for such an argument by counsel, but it would border on forensic suicide to pursue such an argument which would involve effectively attacking the credibility of the client.

Secondly, according to Dr. O'Brien's report, it would be "very unusual" for a person to experience psychogenic seizure whilst driving at high speed or whilst in a dangerous situation. They were the very conditions in which the applicant found herself at the relevant time. Minutoli's evidence was that the applicant drove at 70 to 80 kilometres an hour even before they reached the Rosamond Street intersection. Prior to that he was holding a conversation with the applicant and it was not suggested by him that she was suffering a seizure. A short distance later, when overtaking the Mrs. Sutton's car, she drove at 80 to 90 kilometres an hour. On any view such driving could only be described as being at high speed and, in such traffic conditions, dangerous. If not before, then certainly after, passing Mrs. Sutton the applicant was in a dangerous situation, swerving her vehicle whilst at great speed first into the right lane and then into the left lane and back into the right lane. According to Dr. O'Brien's material, it would have been "very unusual" for the applicant to have suffered a psychogenic seizure during this period.

Furthermore, to the extent that Dr. O'Brien's material establishes that seizures have a psychological basis, that conclusion would have had no relevant impact on the verdict. In the end, it related only to the medical cause of the seizure (as distinct from its existence) which was not a matter that was considered relevant by either party at the trial.

In the circumstances, therefore, I cannot see any significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charges if Dr. O'Brien's evidence had been before them. In my view, having regard to what I have said above, there has not been a miscarriage of justice because Dr. O'Brien's evidence was not put before the jury at the trial.

The only argument that was pursued by Mr. Wraith in support of the application relating to sentence was that the combination of stress of imprisonment and her pregnancy has resulted in the burden of imprisonment for the applicant being significantly greater than his Honour envisaged when he sentenced her. Counsel emphasised that his Honour was not aware when constructing the sentence that:

(a) the stress of imprisonment would lead, as it did, to the applicant suffering a number of seizures which required her to be hospitalised;

(b) the applicant was pregnant and was to give birth in or about November 2001.

In relation to the first matter, Dr. O'Brien's report shows that she was admitted to St. Vincent's Hospital on three occasions since she was imprisoned on 19 February 2001 because of seizures. The first admission was on 20 February 2001. This followed two generalised convulsive seizures which occurred in one day. It was thought at the time that her seizures were related to inadequate medication and she was discharged with a plan for the prison doctor to ensure she was administered appropriate doses of medication. The applicant was re-admitted to the hospital, however, on 2 March 2001 following five partial seizures which consisted of prolonged periods of altered consciousness with intermittent jerking of arms, legs and head. She was under observation at the hospital for a period of 24 hours during which she remained well and seizure-free. Consequently, she was discharged back to prison on 3 March 2001.

On 5 March 2001 the applicant was again re-admitted to the hospital, apparently following a generalised seizure which included a generalised convulsive seizure. Apart from suffering a small seizure on 6 March 2001, she was kept under observation and the tests performed showed generally that she had returned to normal. Consequently, she was discharged back to prison on 9 March 2001.

Because the applicant had suffered partial seizures since imprisonment which Dr. O'Brien considered to be atypical for an epileptic and raised the possibility that they were psychologically induced, and because the applicant was thought to be under stress in prison thereby increasing her propensity to have such psychological seizures, it was arranged that she be admitted to St. Vincent's Hospital for prolonged in-patient testing and observation. This resulted in the applicant's hospitalisation in about mid-April 2001 for a number of days for testing and observation during which she did not suffer from seizures. Dr. O'Brien concluded on the tests that were conducted on the applicant that she also suffered from the susceptibility to psychogenic seizures. Although he does not state this in his report, it may be fairly assumed that, as a result of this new diagnosis, the applicant's medication was correspondingly altered.

The Court also had before it the report of Dr. George Harris of 1 June 2001 which was an exhibit to the affidavit of the applicant's solicitor. Dr. Harris is the Visiting Medical Officer at the Dame Phyllis Frost Centre. He reports that the applicant had experienced ten seizures of various kinds since being sentenced. Presumably, all of them occurred on or before 6 March 2001 as seems to be the case from Dr. O'Brien's report. He says that the applicant also experiences chronic back pain as a result of a prolapsed disc and that she is seen regularly by psychiatric staff at the Centre for management of stress while in prison.

In relation to the applicant's pregnancy, Dr. Harris reports that it is managed by the Royal Women's Hospital which apparently is monitoring her well being and that of her unborn child. The applicant's solicitor has deposed that the applicant will have to make an application to the prison authorities for permission for her child to remain with her and, although the decision as to that will be made in the context of a range of matters, there appear to be accommodation options available within the prison system for mothers with children.

In my view, it is clear from his Honour's sentencing remarks that he took into account when sentencing the applicant the fact that imprisonment will be more onerous on her because she suffers from epilepsy. As events turned out, however, the applicant has been re-diagnosed and, as I have said, this has presumably led to an improvement in her medication and treatment. Moreover, as best one can tell from the material before the Court, save for the relatively early period of her imprisonment, the rate at which the applicant suffers from seizures seems to have stabilised.

As to the applicant's pregnancy, obviously his Honour was unaware of it and clearly it will impose an additional burden on the applicant while she is in prison

and will make it more onerous for her to serve the sentence. On the other hand, on the material before the Court, the applicant is and will remain for the relevant time under the care of the leading women's hospital in Melbourne which is aware of her peculiar medical condition and needs. It has not been suggested that the applicant's welfare or that of her unborn child is in jeopardy by reason of her being in prison.

In the circumstances, including the fact that, in my view, the sentence imposed on the applicant was probably on the lenient side, the combined effect of the added stress of imprisonment on the applicant and her pregnancy do not amount to such an increase in the burden of imprisonment over and above that taken into account by his Honour in sentencing the applicant as to require, in the interests of justice, interference in the sentence by an appellate court.

Consequently, even if the new material is admissible on the question of sentence, the application for leave to appeal against sentence should fail.

It follows that, in my opinion, both applications should be dismissed.

I also agree that the applications should be dismissed for the reasons advanced by Chernov, J.A. in his judgment.

[4] At 383 per Young, C.J., Nelson and Harris, JJ.

[7] As Callaway, J.A. pointed out at 358, this rider was taken from Andrews v. Director of Public Prosecutions [1937] UKHL 1; [1937] A.C. 576.

[8] At 356 per the Chief Justice and Charles, J.A. and 360-361 per Callaway, J.A.

[17] At 402 per Mason and Deane, JJ. (with whom Gibbs, C.J. was "in substantial agreement"). See also Gibbs, C.J. at 399 and Dawson, J. at 421.

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (1)