R v Hassan [2004] VSC 85

5. The defence has objected to such evidence being introduced on the grounds that it is inadmissible or should be excluded in the exercise of the court's discretion.

8. At the time the accused gave this account to the psychiatrist, he had been charged with murder and was in custody. The medical assessment had been requested by the Office of Public Prosecutions (hereafter OPP) for two express purposes. The assessment was to determine whether or not the accused was fit to plead and whether there was evidence that may support a defence of mental impairment.

11. At the conclusion of submissions I ruled that I would not permit the Crown to call such evidence. These reasons for so ruling must of necessity be less than comprehensive having regard to the time constraints of the trial and the limited manner in which the matter was argued.

14. The accused was first diagnosed as suffering from schizophrenia in February 2002 and was prescribed a typical anti-psychotic medication. During the months of May and June 2002, it appears that he failed to attend four appointments with his psychiatrist. On 14 June 2002 it is alleged that the accused stabbed Andrew Smith who died from this injury on 11 July 2002. The accused was arrested in August 2002 and has been in custody ever since, bail having been refused. The accused's mental condition deteriorated as a consequence of his remand at the Melbourne Assessment Centre and he was transferred to the Thomas Embling Hospital from the Melbourne Assessment Prison on 31 October 2002 under s.16(3)(b) Mental Health Act 1986.

17. The accused's trial on one count of murder was fixed for hearing on 19 January 2004. When the matter came before me for mention on 19 December 2003, I was informed by both parties that they were intending to obtain medical reports from the accused's treating doctors. Mr Lyon, on behalf of the accused, informed the Court that the defence could not presently say when his illness was likely to improve as the accused was presenting with symptoms that were treatment resistant. Neither the defence nor the Crown anticipated that the medical reports that they would obtain would suggest that the accused was unfit to plead, though it was accepted by both parties that a medical report was necessary before such a question could be resolved.

20. According to the learned prosector the principal reason for which the Crown sought a psychiatric assessment was to determine whether or not the prosecution should seek leave pursuant to s.22(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act") to raise the defence that the accused was suffering from a mental impairment at time the accused stabbed the deceased. According to enquiries made by the learned prosecutor this was the first time that leave would be sought under this legislation by the Director of Public Prosecutions to establish that an accused was mentally impaired at the time an offence was committed.

23. It appears that there were no medical reports available to either party bearing on either question. Following a psychiatric assessment, if evidence was available that the accused was suffering from a mental impairment, the Director intended to seek leave to establish that was the accused's mental state. The Crown's attitude was explained in these terms:

"It would be uncivilised for the Crown to urge a jury to convict on murder if the Crown was in possession of material that indicated that he should not be held so responsible."[1]

27. The pre-trial mention concluded on the basis that both parties anticipated that the psychiatric reports that they sought would be available prior to the trial on 19 January 2004. On that date the Court would determine whether there was evidence which raised the question of unfitness to plead or mental impairment at the time of the alleged offence.

30. The Court has been provided with the letter written by the OPP to Forensicare Community Services. In this letter, Mr Page from General Prosecutions requested a psychiatric report stating that the lateness of the request for an assessment was because the Crown had only learned at a Directions Hearing that the defence were no longer pursuing the issue of mental impairment and they had not obtained the report anticipated by the Crown. The letter went on to say that it was clear on the materials that at the time of offending the accused was suffering from schizophrenia. It further stated that it may be that the defence would not wish to invoke the provisions of the Act and that either the Court or the prosecution would wish to do so. It was on this basis that the hospital was asked to arrange to have a report prepared as to the accused's psychiatric state at the time of the offence, his present state with emphasis as to his fitness to plead and his future prognosis.

33. Psychiatric reports of Dr Patel dated 30 December 2003 and Dr Forrester dated 16 January 2004 were tendered on 19 January 2004 before the accused was arraigned. Both doctors regard the accused as fit to stand trial within the meaning of the Act and neither psychiatrist considered that the defence of mental impairment was available to the accused.

36. Dr Patel's report obtained as a result of the Director's request stated at its commencement that it was prepared at the request of the OPP to determine whether or not the accused had a defence of mental impairment available to him. Dr Patel stated that he interviewed the accused specifically for the preparation of the report. He said that the accused understood the nature and purpose of the interview and the reason for the report and that the accused had been fully co-operative during the examination. Dr Patel also discussed assessing the accused with the accused's legal representative who was agreeable to him having access to the accused for that purpose. Dr Patel expressed the conclusion that the defence of mental impairment was not available and that the accused was fit to stand trial. He hoped that the report would assist the Court in its deliberations.

39. By the first day of the trial the Crown had given notice to the accused's legal advisers of its intention to lead evidence of what Dr Patel had said in his report concerning the account given by the accused of his movements at the time of the offence. According to that report which was tendered as a pre-trial exhibit (Exhibit 3) prior to the empanelment of the jury, the accused had said that, at the time of the offence, he was asleep at his brother's home and that any witness who claimed to have seen him in the vicinity of the crime scene at the time the injured man was discovered was mistaken. The learned prosecutor submitted that this statement to Dr Patel constituted a false denial which the Crown wished to rely upon as establishing a consciousness of guilt of the crime with which the accused was charged.

42. The defence objected to this evidence being led on the basis that to do so would be unfair, that the evidence was unreliable and that its prejudice would outweigh its probative value.

45. As to unfairness, the defence submitted that the accused's narrative had been obtained by his treating psychiatrist for the dual purposes of determining whether or not a statutory defence of mental impairment was available and whether he was fit to plead.

48. There is no doubt that Dr Patel's report and assessment had been undertaken at the Crown's request and for specific and defined purposes. It was said that the defence received Dr Patel's report directly from the Crown, and accordingly it had no opportunity to request the doctor to confine his report to the expressions of his opinion as to the availability of the defence or to advise the accused to refuse to waive privilege.

51. The defence further submitted that the narrative given to the doctor, whilst it may have been voluntary, must be considered unreliable. The accused had a history of ongoing psychiatric illness with psychotic symptomatology. He suffered from auditory hallucinations and somatic delusions at the time he was interviewed by Dr Patel.

54. The accused had given a similar version of events to police at the time of his arrest in Perth on 28 August 2002. The Crown indicated that it did not intend to lead evidence of the accused's initial statements to investigating police as the statements were made in circumstances which rendered them inadmissible. It appears that at the time of his arrest he had not taken any anti-psychotic medication since 14 June 2002. The defence submitted that there was a danger that the narrative given to Dr Patel was an account which the accused believed to be true as a consequence of his illness and was a repetition of what he had previously said to investigating police and read in the depositions. No evidence was adduced which would support such a hypothesis.

57. The defence also submitted that if the accused's narrative was admitted in evidence the Crown would have to establish that the accused had told a deliberate lie. This would result in further evidence being introduced concerning the accused's mental history and his present status. The accused's mental condition would, the defence argued, render the statement unreliable. Such medical evidence would also substantially prejudice the accused's position in the eyes of the jury.

60. In response the learned prosecutor submitted that there was nothing within Dr Patel's report to support the suggestion that the narrative given by the accused was unreliable. Dr Patel's report revealed that the accused had understood the nature and purpose of the interview and the reason for the report. The learned prosecutor submitted that there was no unfairness in admitting the report into evidence as the accused had understood the purposes of the interview which were to provide a report to the Court in relation to whether the accused was suffering from mental impairment at the time of the offence and whether he was fit to plead.

63. The prosecution relied upon the fact that Dr Patel had discussed furnishing the report with the accused's legal representative who was agreeable to the assessment taking place for those purposes. It was said by the Crown that Dr Patel had made it clear to the accused that his narrative would be communicated to the prosecution. He submitted that the accused was aware that he was not obliged to submit to the psychiatric assessment which would be provided to the Court. He submitted that medical privilege did not apply to criminal trials by virtue of s.28 Evidence Act 1958 and that there was nothing unlawful in Dr Patel providing such a report. The learned prosecutor asserted that the accused's statement to Dr Patel was voluntary. He submitted that the Court should in any event exercise what was referred to as the Bunning v Cross[2] discretion to admit the evidence having regard to the significance of the evidence which the Crown sought to lead and the public interest in having all relevant evidence led upon a trial of such a serious matter.

66. Despite an opportunity to research the matter, no authority could be cited by the prosecution in aid of the proposition that information provided by an accused in the course of a medical assessment for the express purposes of determining whether the accused was fit to plead or whether the accused had been suffering from a mental impairment at the time of the commission of the offence could, without the consent of the accused, be used by the prosecution to establish the guilt of the accused on his trial.

69. It was stated in terms by both parties during the submissions that it was not intended to introduce evidence at the trial that the accused was suffering from a psychiatric condition at any material time. No medical evidence was available that could support such a view.

72. The law and procedure concerning unfitness to plead and mental impairment is now largely contained within Parts 2, 3 and 4 of the Act. The procedures for dealing with persons who had committed serious criminal acts while suffering from a mental impairment, or who are unfit to plead, have been re-defined under the Act. RDM v Director of Public Prosecutions[3]. The Act replaces the former procedures as a more flexible and humane procedure. Section 82 of the Act repeals ss. 393 and 420 Crimes Act 1958, while s.25 abrogates the common law defence of insanity in favour of the defence of mental impairment under s.20 of the Act. The Court of Appeal recognised in RDM that an objective of the Act has been to transfer from the executive government to the courts certain responsibilities concerning accused persons who are unfit to plead and who were suffering from mental impairment at the time of the commission of an offence.

75. Section 9 of the Act requires a court to reserve the question of a defendant's fitness to stand trial for Investigation under Part 2 where it appears to the Court that there is a real and substantial question as to the defendant's fitness to stand trial.

78. On investigation into a defendant's fitness to stand trial, a trial judge may, under s.11 of the Act, require the defendant to undergo a medical examination, the results of which may be placed before the Court. Though the assessment by Dr Patel was not undertaken pursuant to an Investigation under Part 2, it was tantamount to an assessment for the purpose of determining whether there was a real and substantial question as to the defendant's fitness to stand trial, which should be reserved for an Investigation.

81. The parties having informed the Court of the need for a psychiatric assessment of the accused, and the Court having concurred in that view, I consider that Dr Patel's report should be treated as obtained as part of the curial process or, at the very least, as obtained pursuant to a procedure that was sanctioned by the Court for the express purposes which I have identified.

84. The formal written request to the hospital for an assessment reiterated those express purposes. The advice given by the accused's legal representative that he should participate in such an assessment was given in the knowledge that the assessment was for the express purposes which I have identified and in the belief that the Court had sanctioned such an assessment.

87. Section 76(1) of the Act expressly provides that a document prepared for the purpose of an Investigation, under Part 2 of the Act, or for a Special Hearing under Part 3 of the Act, would not be admissible in criminal proceedings in the absence of the accused's consent. Although the matter has not been the subject of submission, Dr Patel's report, had it been prepared for the purpose of an Investigation or Special Hearing, would clearly be a document that falls within the meaning of s.76 of the Act.

90. Section 76(3) of the Act provides that a court may rule such a document admissible in criminal proceedings on the application of a party to the proceedings if the court is satisfied it is in the interests of justice to do so. The court thus has a discretion to admit such evidence.

93. While s.76 of the Act has no application in the present circumstances, because Dr Patel's report was not obtained for the purpose of an Investigation or Special Hearing, the report was a necessary preliminary step to a determination as to whether an Investigation should be reserved. It is in accordance with common law principles and the spirit of s.76 that such a report should be excluded unless the interests of justice demand its admission.

96. As I have not had the benefit of submissions in relation to the Act, I would make only these limited observations. In the absence of the accused's consent the prosecution should not be permitted to lead evidence of things said by the accused for the expressed and sole purpose of providing information that was required by the Crown to enable a determination of issues which arose under Parts 2, 3 or 4 of the Act where such a course has been approved by the Court.

99. The accused had exercised his right to remain silent when questioned by investigating police. He remained in custody as an involuntary in-patient at Thomas Embling Hospital. The Crown informed the Court that it was intended to request the assessment for the limited purposes which I have identified and its letter of request reiterated those limited purposes. The psychiatric report confirmed those express purposes for which the information was obtained. In such circumstances the interests of justice require that the use to which such information is put be confined to the express purposes for which the prosecution has said such information would be utilised. The efficacy of the procedures in Parts 2, 3 and 4 of the Act would be compromised if it were thought that information provided expressly for such purposes could be used to incriminate the accused on the issue of his guilt. The administration of justice would fall into disrepute if information provided by the accused in response to a request from the prosecution and sanctioned by the Court were not confined to those declared purposes.

102. It would be unfair for the prosecution to utilise the accused's utterances in the trial for the purpose of establishing his guilt. It places in jeopardy the accused's right to remain silent if what he said could be used to incriminate him when it had been sought for the specific purposes of Parts 2, 3 or 4 of the Act. Most of the considerations which have led me to this conclusion are discussed in the recent decision of the Court of Appeal in R v Juric. [4] The unfairness of using the accused's utterances arises because of the circumstances in which it was made.[5]

105. To solicit information in such circumstances without a caution when the accused had already exercised his right to remain silent may bear upon the voluntariness of any statement made. I do not stay to consider this question as it was assumed by the party that the statements made were voluntary.

108. That the Court has a discretion to exclude the accused's narrative to the psychologist if it would be unfair to admit it, is not in doubt.[6]

111. Section 76 of the Act where it applies, provides the Court with a discretion, though by contrast to the common law the scheme of the legislation is to treat such reports as inadmissible unless in the interests of justice the Court exercises its discretion to admit such evidence.

114. For such evidence to have its intended effect, the Crown must persuade the jury that it was a lie told because of a realisation that the truth would reveal that he committed the offence with which he was charged. As the purposes for which the information was requested were to determine whether the accused suffered from a mental impairment at the time of the offence and whether he was fit to plead, the motive for any conscious untruth might relate to these issues. The Crown would be faced with considerable difficulty in demonstrating that an untruth told to a medical practitioner conducting such an assessment was borne of a consciousness of guilt of the crime charged.

117. The reliability of the utterances made to Dr Patel by the accused must also be in issue having regard to the mental disorder from which he suffered. To establish consciousness of the guilt, the Crown would have needed to establish that the accused's utterances were made in circumstances where the accused was able to rationally determine whether or not he was providing Dr Patel with an accurate account of his movements at the time of the offence. That is to say, it would have to establish that the accused at the time he gave this account was capable of recognising that his account was false.

120. It was inevitable that if this issue had been explored much of the circumstances concerning the accused's mental disorder would have emerged. The content of Dr Patel's report suggests, on its face, that the Crown would have had difficulties in persuading a jury that they should view the accused's utterances as reliable and as constituting a deliberate lie.

123. I am also satisfied that irreparable prejudice would have been done to the accused's position if the prosecution were permitted to call evidence which would reveal to the jury that the accused was an involuntary in-patient being treated for a schizophrenic disorder. In the context of a trial in which neither party was seeking to establish that the accused's capacity to form the requisite intent was in any way impaired, and where the sole question is the identity of the offender, evidence that the accused suffered from a psychiatric disorder would be likely to generate a prejudice that could not be cured by appropriate directions and which would outweigh any probative value that such account may have.

126. The right of the Crown to present all of the evidence that is available on a serious charge is only one of a number of matters that must be taken into account when considering the interests of justice.[7] I am satisfied that it would not be in the interests of the administration of justice to permit the Crown to follow a course which was contrary to the expressed purposes for which the information was sought. Its admission would be unfair to the accused. The prejudice that would flow to the accused from the exploration of the reliability of his utterances also strongly militates against the admission of this evidence. It must be excluded.

[2] [1978] HCA 22; (1978) 141 CLR 54.

[3] [1999] VSCA 86; [1999] 2 VR 270 per Winneke P.

[4] [2002] 4 VR 411 at 42-52.

[5] MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; McDermott v R (1948) 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Driscoll v R [1977] HCA 43; (1977) 137 CLR 517; Bunning v Cross supra; R v Juric supra.

[6] Pollard v R [1992] HCA 69; (1992) 176 CLR 177; R v Lee supra_; Bunning v Cross_ supra; Cleland v R supra_; R v Juric_ supra; Heydon, J.D. (2000), Cross on Evidence (6th Australian Edition) Butterworths, Sydney at paragraph [27305].

[7] See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; R v Juric supra.