R v Logan

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0082 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

• 8 - IN THE COURT OF CRIMINAL APPEAL 60413/03

Wood CJ at CL Sperling J Kirby J

Friday, 16 April 2004 Regina v Paul Jason Logan Judgment 1 Wood CJ at CL: I have read in draft form the judgment of Sperling J. I agree with the orders proposed, and with the reasons of his Honour. 2 Sperling J: On 18 June 2001, the appellant stood trial in the District Court on a charge that on 13 October 1999 he robbed a person of a wallet and $150 in cash in circumstances of aggravation, namely, that at the time of the robbery he used corporal violence.

The trial 3 The appellant was represented by Ms D Yehia of counsel. She entered a plea on behalf of the appellant that he was not guilty by reason of mental illness. The plea admitted the objective elements of the offence as charged. 4 The appellant had signed an election under s132(1) of the Criminal Procedure Act 1986, electing to be tried by a judge alone. Other formal requirements were fulfilled. The trial proceeded before Kinchington DCJ without a jury. 5 The Crown case consisted of the tender of the Crown brief and the written election to be tried by judge alone. The brief consisted of witness statements and a report by Dr J F O'Dea, forensic psychiatrist, dated 15 June 2001, following an interview with the appellant on 12 June 2001 at the Silverwater Correctional Complex. The report was prepared at the request of the Director of Public Prosecutions. According to Dr O'Dea, the appellant told him that, on the occasion of the offence, the appellant was hearing voices which told him to take the money because it belonged to him, that he did not believe he had done anything wrong, and that he believed it was reasonable for people to take money from each other at automatic teller machines. 6 In Dr O'Dea's opinion, the appellant was suffering from a severe psychiatric illness, best understood as severe chronic schizophrenic illness, which was characterised by auditory hallucinations, problems with thinking, fatuous affect, disorganised and aggressive behaviour, problems with information processing and poor judgment. Dr O'Dea was doubtful about fitness to be tried which he said might be clarified by his legal representatives. 7 Dr O'Dea also said that the appellant might satisfy the criteria for the mental illness defence. He said it was reasonable to assume that, at the time, the appellant was suffering from significant problems with his thinking and behaviour. It was reasonable to accept that he might not have been able to control his actions or might not have understood that what he was doing in the context of the alleged offence was wrong. 8 The case on behalf of the appellant consisted of a report by Dr O Neilson, forensic psychiatrist, dated 9 May 2001. Dr Neilson had been retained on behalf of the appellant by Sydney Regional Aboriginal Corporation Legal Service. He had interviewed the appellant at the Metropolitan Reception Remand Centre on 4 May 2001. The appellant's account of the circumstances of the offence as given to Dr Neilson was materially identical with that given to Dr O'Dea. According to Dr Neilson, the appellant told him that voices had told him that it was his money and that he should go and get it, and that the appellant thought, at the time, that the person from whom the money was taken was robbing him. 9 In Dr Neilson's opinion, the appellant was suffering from a severe and disabling mental illness, at the time of the offence charged, characterised by perceptual disturbances in the form of auditory hallucinations, disorganised and illogical thinking and persecutory delusional beliefs. The condition was consistent with chronic schizophrenia. 10 In Dr Neilson's opinion, as expressed in the report, the appellant was fit for trial although, he added, the appellant's counsel might be in a better position to decide that according to the quality of instructions received. At the time of interview, the appellant seemed to Dr Neilson to be able to provide adequate instructions and seemed able to follow the proceedings. 11 It was Dr Neilson's opinion that the appellant had the defence of mental illness available to him on the ground that, at the time of the offence charged, he was affected by the delusional belief that the money he took was his and that what he was doing was not morally or legally wrong. He was, in Dr Neilson's opinion, unable to reason with any measure of calmness at the time of the offence, partly because of moderate intoxication, but mainly because of the illogical thinking and emotional arousal caused by acute mental illness.

Verdict and order 12 On 19 June 2001, Kinchington DCJ delivered judgment. His Honour noted, correctly, that the facts of the case were not in dispute. He reviewed the evidence that the victim had been struck on the head and knocked to the ground by the appellant who took the victim's wallet and $150 in cash before running off. The victim had chased and caught the appellant, recovering the wallet and the money after a scuffle. The appellant had run off again. However, the appellant had lost his credit card in the scuffle, which the victim picked up and handed in to the investigating police who traced the appellant and arrested him. 13 Necessarily, his Honour found the objective elements of the offence proved. 14 His Honour then turned to the matter of mental illness. He referred to the reports by Dr O'Dea and Dr Neilson. His Honour found that the appellant was fit to stand trial. 15 As to the defence of mental illness, his Honour was not satisfied that the necessary mental element in the offence charged had been established because (as he put it) he was not satisfied that the appellant was able to control his actions or understood that what he was doing in the context was wrong in either a moral or a legal sense. 16 His Honour proceeded to return a special verdict that the appellant was not guilty by reason of mental illness. He then ordered that the appellant be detained in the psychiatric ward at Long Bay Correctional Centre or such other place as the Mental Health Review Tribunal should direct until his release was approved in accordance with the law.

Notice of appeal and grounds of appeal 17 On 18 October 2003, the appellant filed a notice of intention to appeal. The notice was dated 2 October 2003. It was substantially out of time. 18 The grounds of appeal accompanying the notice of appeal were that the appellant had been denied justice pursuant to the Australian Constitution. The appellant raised other constitutional law arguments. These grounds of appeal were not referred to by the appellant on the hearing of the appeal. They have no merit in law. 19 After filing the notice of intention to appeal, the appellant notified further grounds. These can be summarised as follows:

(2) That the plea of not guilty on the ground of mental illness was entered contrary to his instructions;

(3) That he was not guilty of the offence because he was not there.

Fitness to be tried 20 The relevant provisions of the Mental Health (Criminal Procedure) Act 1990 are as follows. Section 5 provides that the question of a person's unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the court. Section 7 provides that the question of a person's unfitness to be tried should be raised before the person is arraigned but may be raised at any time during the course of the hearing of the proceedings. Section 10 provides that if (following the question being raised before the person is arraigned) the Attorney General determines that an enquiry should be conducted or the question is raised after arraignment, the court is to conduct an enquiry to determine whether the person is unfit to be tried. 21 Section 13 provides that, if, following an enquiry, an accused person is found fit to be tried, the proceedings go on in the ordinary way. If, on the other hand, the accused person is found unfit to be tried, the proceedings are not to continue and the court must refer the person to the Mental Health Review Tribunal. Pursuant to s16, if (as is usually the case) the Tribunal determines that a person will not, within 12 months, become fit to be tried, the Tribunal is to notify the Attorney General of that determination. Pursuant to s18, the Attorney General may then direct that a special hearing be conducted. 22 Section 19 provides that, at a special hearing, the person is to be acquitted unless it can be proved that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative. Pursuant to s21, at a special hearing, the accused person is to be taken to have pleaded not guilty and may, by counsel, raise any defence that could be properly raised if the special hearing were an ordinary trial. Pursuant to s22, the verdicts available at a special hearing include not guilty, not guilty on the ground of mental illness, or that, on the limited evidence available, the accused person committed the offence charged or an available alternative offence. 23 Section 22(2) provides that a verdict of not guilty on the ground of mental illness, found at a special hearing, is to be taken to be equivalent to a special verdict that an accused person is not guilty by reason of mental illness under s38 of the Act. Pursuant to s25, if, at a special hearing, the defence of mental illness is raised and there is a special verdict that the accused person is not guilty by reason of mental illness, the person is thereafter to be dealt with as if there had been a special verdict at a normal trial of criminal proceedings.

The special verdict of not guilty on the ground of mental illness 24 The foregoing reference to a "special verdict" is a reference to s38 of the Act. That section provides that, if on the trial for an offence, it is given in evidence that a person was mentally ill, so as not to be responsible, according to law, for his or her action at the time, then, if it appears that the person did the act or made the omission charged but was mentally ill at the time, a special verdict must be returned that the accused person is not guilty by reason of mental illness. 25 A person is entitled to the defence of mental illness where the M'Naghten rules apply: Re M'Naghten's Case (1843) 10 Cl & Fin 200, 210: [T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was acting under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. 26 Section 39 provides that, following such a special verdict, the court may order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law or may make such other order as the court considers appropriate. (It is unnecessary to mention the consequence of other verdicts available at a special hearing.)

Trial by judge alone 27 Provision for trial by judge alone is made by s132 of the Criminal Procedure Act 1986. The section provides, in relation to proceedings in the Supreme Court or the District Court, that a person must be tried by the judge alone if the person has so elected in accordance with the section and the judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor. The section further provides that an election may be made only with the consent of the Director of Public Prosecutions and before the date fixed for the person's trial.

Right of appeal 28 Section 5 of the Criminal Appeal Act 1912 provides that a person convicted on indictment may appeal against the person's conviction to the Court of Criminal Appeal. The section further provides that a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted. 29 Where a plea of mental illness is entered (or even where the defence of mental illness is raised as an alternative, following a plea of not guilty), no appeal lies against a special verdict of not guilty on the ground of mental illness: Foy (1922) 38 WN (NSW) 20; Grieg (1996) 89 A Crim R 254. 30 Section 6 of the Criminal Appeal Act 1912 provides that, on an appeal against conviction, the court shall allow the appeal if it is of the opinion that on any ground whatsoever there was a miscarriage of justice.

The appellant's evidence 31 The appellant represented himself at the hearing of the appeal. He gave evidence at the hearing. He said that, at an earlier time, he was hearing voices which told him that the Kudachi man was going to make everything alright. They told him what the Kudachi man said. The doctors and possibly the solicitors were working against the Kudachi man. 32 In cross-examination, the appellant said that the solicitor, Mr Cameron, was an agent for the devil. He denied that he told Mr Cameron and Ms Yehia that he wanted to raise mental illness as a defence. He said in that regard that they were working for the demons. 33 The appellant said he did not recall talking to Mr Edwards. He did not recall being interviewed by Dr Neilson. 34 He recalled speaking with Ms Yehia. The appellant did not respond directly to the suggestion that she explained to him that he could plead guilty or not guilty. He said that he thought she could read his mind and that he was talking to her with his mind. He said that was how they were communicating. Asked further about his conversation with Ms Yehia on 27 March 2001, the appellant said that he was not involved in the alleged offence, that he was not there. Asked further about instructions to plead not guilty on the ground of mental illness, the appellant's answers were not responsive. He disagreed that he had accepted that he suffered from schizophrenia when under treatment prior to trial. He disagreed that he appeared to be pleased with Dr Neilson's opinion at the meeting with Ms Yehia on 29 May 2001. 35 The appellant said he did not recall Ms Yehia explaining the election to be tried by a judge alone. He denied that Ms Yehia explained to him that if he was found not guilty by reason of mental illness he would not receive a set sentence. Asked about his admission to Ms Yehia that he took the money, the appellant said that he did not disagree with that assertion because the voices told him to say that he had done it. Again, he said that he thought he was talking to her with his mind. 36 Concerning his treatment before trial, the appellant said that the voices told him what to say to the doctor.

Conference 27 March 2001 37 Ms D Yehia, who appeared as counsel for the appellant at the trial, gave evidence on the appeal by affidavits sworn on 23 and 30 March 2004, and orally. 38 In her affidavit evidence, Ms Yehia said that she advised the appellant of the crown case against him and read to him the statements which were subsequently tendered in evidence at the trial. According to her, the appellant agreed that he had taken the money but said that he was under the influence of a spell of the Kudachi man at the time. She then advised him that if he accepted the facts alleged, he could plead guilty and that if he denied them he could plead not guilty. According to her, the appellant himself raised the option of relying on mental illness to explain his behaviour. She explained that, before she could advise in relation to that possibility, it would be necessary to have a psychiatric assessment. 39 Ms Yehia said that she did not observe any sign of delusion or mental illness at this conference. She said he appeared to understand the court process and the options of pleading guilty or not guilty. She said she believed he was fit to instruct her in relation to the trial. 40 Mr T Edwards, a solicitor employed by the Aboriginal Legal Service, was present at that conference. His notes in relation to the conference were in evidence on the appeal. His notes include, Delusional at the time … Wants to run mental illness defence … Spell from 1998. Seeing ghosts. Kudachi man used to wake him in the morning and spin him around. Wishes to plead N.G. [not guilty] due to mental illness. Admitted involvement in offence but delusional at the time.

Conference 24 April 2001 41 Mr A Cameron, another solicitor employed with the Aboriginal Legal Service, said, in his affidavit sworn on 31 March 2004, that he attended this conference with Ms Yehia. According to him the appellant said on that occasion that he was under a spell of the Kudachi man and confirmed that he wanted to raise mental illness as a defence. He said that was consistent with the previous instructions taken by Mr T Edwards, whose notes relating to the conference on 27 March 2001 were annexed to Mr Cameron's affidavit. 42 He then arranged the psychiatric assessment by Dr Neilson.

Conference 29 May 2001 43 Ms Yehia said in her affidavit evidence that she attended this conference with Ms P Dwyer, another solicitor employed by the Aboriginal Legal Service. She said she explained the content of Dr Neilson's report to the appellant who appeared pleased that Dr Neilson supported a finding of not guilty by reason of mental illness. 44 Ms Yehia said that she did not observe any sign of delusional thinking at this conference. She said that she formed the view that, although the appellant was suffering from a mental illness at the time of the offence and continued to do so, he was capable of giving her instructions. 45 Ms Yehia went on to say that she advised the appellant to elect to be tried by a judge alone, that she explained the necessary form to him, that he appeared to understand the choice and that he signed the form, which was witnessed by Ms Dwyer. Ms Yehia said that she explained to the appellant that if he was found not guilty by reason of mental illness he would not receive a set sentence but would be supervised by the Mental Health Review Tribunal and it would be up to them to recommend his release; in the meantime he would be held in a psychiatric ward. Ms Yehia said that following that explanation, the appellant confirmed his instructions to plead the defence of mental illness. 46 A copy of the signed election form for trial by a judge alone was annexed to Mr Cameron's affidavit.

Ms Yehia, oral evidence on appeal 47 Ms Yehia was cross-examined by the appellant. The appellant challenged her evidence concerning his election to be tried by a judge alone. She affirmed her evidence. She denied the appellant's suggestion that she and the appellant had communicated by mind. Asked whether the appellant understood everything, she affirmed her evidence that he appeared to understand what they were talking about.

Mr Cameron, oral evidence on appeal 48 Mr Cameron also denied the appellant's suggestion that he and the appellant had communicated by mind.

Dr Neilson 49 Dr Neilson's report of 9 May 2001, which followed an interview with the appellant on 4 May 2001, was before this Court on the appeal as part of the record of the trial. I have referred earlier to the content of that report. 50 No evidence by Dr Neilson had been filed by the Crown in the matter of the appeal. Accordingly, he was called, in effect, by the appellant. Dr Neilson said he was not aware of the appellant experiencing voices at the time of his interview with the appellant on 4 May 2001. He said that the appellant told him that the treatment he was receiving had stopped the voices. Dr Neilson said that he understood the appellant had recovered from the illness which he had at the time of the alleged offence. 51 In re-examination, Dr Neilson agreed that a more recent exacerbation of the illness could affect memory or information retrieval concerning earlier events, such as what transpired at the interview in May 2001.

Dr O'Dea's evidence 52 Dr O'Dea's report of 15 June 2001, which followed an interview with the appellant on 12 June 2001, was before this Court on the appeal as part of the record of the trial. I have referred earlier to the content of that report. 53 As in the case of Dr Neilson, Dr O'Dea was, in effect, called as a witness by the appellant. Dr O'Dea affirmed that in his opinion the appellant had been under treatment for a genuine mental illness. Asked whether a belief that he could communicate with his mind made him unfit to be tried, Dr O'Dea affirmed his written evidence that he had concerns about that but thought it was for others to decide. In re-examination Dr O'Dea affirmed his written evidence that the appellant's legal representatives had been in the best position to decide the question of fitness to be tried.

Appeal out of time 54 It is reasonable to assume that the appellant's mental illness contributed to the delay in instituting this appeal. Accordingly, the time for filing the notice of appeal should be extended to the date of filing, 18 October 2003.

Jurisdiction 55 The Crown submits that the appeal is incompetent on the ground that no appeal lies against a special verdict of not guilty on the ground of mental illness where the defence was raised at the trial by the appellant. The Crown says that the plea of not guilty on the ground of mental illness was entered by the appellant's counsel on his behalf. The appellant says, in effect, that this was not so because he did not authorise the plea. 56 As appears below, I would resolve that issue of fact in favour of the Crown. In consequence, the appeal is incompetent and must be dismissed. However, in deference to the appellant's arguments, I will also review the appeal on its merits.

Ground 1: that the appellant was unfit to be tried 57 At the time of trial in June 2001, the appellant's counsel, Ms Yehia, was a barrister of 12 years' standing, with considerable experience in the field of criminal law. She was in the best position to assess whether the appellant was fit to be tried. She adverted to this question and formed the opinion that he was. 58 Nothing has emerged on the hearing of the appeal to show that Ms Yehia's opinion was wrong. Accordingly, this ground of appeal fails.

Ground 2: that the plea of guilty on the ground of mental illness was entered contrary to the appellant's instructions 59 The evidence of Ms Yehia, Mr Edwards's note and the evidence of Mr Cameron are to the contrary. The burden of that evidence is that it was the appellant himself who wished to raise the defence of mental illness and that he adhered to that instruction following receipt of Dr Neilson's report and having had that report and the implications of the plea explained to him. 60 I do not doubt that the appellant gave informed instructions to his legal representatives to plead the defence of mental illness. Accordingly, this ground of appeal also fails.

Ground 3: that the appellant was not guilty of the offence because he was not there 61 The plea of not guilty on the ground of mental illness admitted the objective facts of the offence charged, including the involvement of the appellant. As indicated above, that plea was entered on the appellant's informed instructions. Additionally, the evidence adduced at the trial established that the appellant was the person involved. 62 In these circumstances, there is no basis on which it can be contended that the finding of the appellant's involvement was not reasonably open to his Honour and should not have been made. Accordingly, this ground of appeal also fails.

Appellant not mentally ill 63 Although not raised as a formal ground of appeal, the tenor of the appellant's evidence and argument on the appeal was that he was not mentally ill at the time of the offence charged and that the evidence of Dr O'Dea and Dr Neilson to that effect was incorrect and knowingly false. 64 Nothing has emerged at the hearing of the appeal to establish the appellant's contentions in this regard. 65 Accordingly, no such ground of appeal has been made out.

Conclusion and orders 66 For the reasons given above, the appeal fails for want of jurisdiction and on its merits. 67 I propose the following orders:

(2) Appeal dismissed. 68 Kirby J: I agree with Sperling J. -oOo-

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