R v Papanicolaou

Defence response and related documents

1. The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. It was also noted that a notice under s 151 of the Criminal Procedure Act had been provided. That notice indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In addition, that notice contained the following: "The accused is also exploring the availability of an Indonesian-based psychiatrist to assess the accused, consistently with Dr Eagle's suggestion that a culturally Indonesian transcultural mental health clinician be retained. If such a report is to be relied on by the accused, it will be served as soon as possible."
2. Dr Eagle had made this suggestion in the second last paragraph of her 30 June 2020 report.

Steps taken by the accused's legal representatives

1. There was unchallenged evidence from Ms Connell, a solicitor involved in the preparation of this matter on behalf of the accused, as to the unsuccessful steps taken by the accused's legal representatives to obtain the transcultural mental health clinician's report between May 2020 and March 2021. There was also evidence that an Indonesian psychiatrist, Dr Widiasih, was identified and contacted in March 2021. Dr Widiasih conducted a number of assessments of the accused by AVL and Zoom, in Indonesian, in May 2021 and eventually provided a report dated 31 May 2021 which was received by the accused's legal representatives on 1 June 2021. Counsel for the accused received a copy of the report on 2 June 2021.
2. Based on this evidence, I am satisfied that the accused's legal representatives were not at all dilatory in seeking and obtaining a report from a culturally Indonesian transcultural mental health clinician, as Dr Eagle had suggested.

Dr Widiasih's report - further investigation and consideration

1. Ms Connell's evidence established that Dr Widiasih's 37 page report included the opinion that the accused "was in a dissociative state at the time of the incident such that she was unable to control her actions", having regard to what Dr Widiasih considered to be symptoms of Post Traumatic Stress Disorder, peripartum depression, problematic gambling as well as borderline personality traits (derived from evidence of impulsivity).
2. It was noted that this report had not been served because aspects of her opinion required further explanation and clarification, including clarification of the assumptions on which the opinion was based. In this regard, it can be noted that counsel who appeared for the accused, Mr Quilter, properly informed the Court that, in his opinion, there was a distinct possibility that, after further investigations and conferences with Dr Widiasih were completed, her report would not be relied upon.
3. It appeared to me that there might be a number of reasons why it was very likely that further explanation and clarification of her initial report, in conference with the accused's legal representatives, would be required before a decision could be made on whether her report, or any subsequent or supplementary report, would be relied upon. These reasons might well include that Dr Widiasih was not an Australian medical practitioner and was not familiar with the Australian legal system and was not likely to be aware of the requirements to be satisfied so as render an expert's opinions admissible under Australian law.
4. In my view, the evidence established that there were issues of real substance raised by Dr Widiasih's report in relation to the partial defence of substantial impairment which, in fairness to the accused, were required to be further investigated and considered as there was a reasonable possibility that those issues could substantially contribute to or strengthen the accused's case under s 23A.
5. Counsel for the accused indicated that this further investigation and consideration might take as little as a few days. Given the history of the accused's legal representatives' interactions with Dr Widiasih, the need for an interpreter for her, communication across different time zones and countries and the potential complexity of the issues, I was not satisfied that it was certain or even likely that the accused's interests could be adequately addressed and protected by allowing only a few days for the completion of a proper investigation and assessment of Dr Widiasih's report, and subsequent or supplementary reports and her opinions more generally.

The need for an MRI relating to the earlier motor vehicle accident

1. The evidence also established that both Dr Eagle and Dr Widiasih referred to a motor vehicle accident involving a potential head injury to the accused when she was six years old which led to her being in a coma for two weeks.
2. Dr Eagle did not, however, go on to give any express opinion in either of her reports linking such an injury to the "abnormality of mind arising from an underlying condition" identified by her.
3. Ms Connell's evidence established that Dr Widiasih suspected that the accused may have suffered a traumatic brain injury as a result of that accident but she was unwilling to confirm that diagnosis in the absence of radiological examination of her current brain condition. Ms Connell also stated: "Having considered the extensive history taken from Dr Widiasih and the ongoing concern about a traumatic brain injury, I am now of the view that the [accused] should have an MRI and subsequent analysis in order to explore the possibility of that diagnosis."
4. Mr Quilter indicated to the Court that the matter of an MRI had been raised with Dr Eagle but no definitive answer in writing had, as yet, been obtained from her as to the necessity or desirability of obtaining an MRI. He noted that he anticipated that Dr Eagle would be of the view that "such a process is always beneficial but not of acute importance in this case in her opinion".
5. Having regard to the evidence, I accepted that, in fairness to the accused, at the least, further investigation needed to be undertaken and consideration, probably in consultation with Dr Eagle and Dr Widiasih, needed to be given concerning whether an MRI should be undertaken and an appropriate radiological report obtained. From what could be discerned from the evidence, it appeared that Dr Widiasih considered such investigations were at least potentially relevant to matters that went to the availability or strength of the partial defence under s 23A. Dr Eagle did not appear to reject categorically its potential relevance.
6. Once again, investigation and consideration of the question of an MRI was not something that was likely, in my view, to be properly resolved within a few days. Further, if it was determined that an MRI and radiological report was appropriate, it was be a matter of months, rather than days, before those could be obtained, supplementary reports could be provided by Dr Eagle and/or Dr Widiasih and such reports could be served on the Crown.

Consideration

1. The accused is to face trial on the very serious charge of murder. It is well established that where an application is made by the defence to adjourn a murder trial upon the basis that the defence seeks to explore an issue which may give rise to a defence or partial defence, the Court should be cautious before shutting the accused out from taking such a step: R v Boyd [2017] NSWSC 1099 at [39] (Johnson J); R v Hunter [2013] NSWSC 1713 at [51] (Johnson J).
2. In R v Alexandroaia (1995) 81 A Crim R 286, the Court of Criminal Appeal formulated the test, at 289, as being whether there was a reasonable possibility that material of substantial assistance to the accused's case would be obtained if the trial were delayed while the relevant enquiries were completed. The Court went on to note, at 290, as follows: "The test is not, of course, whether there was a reasonable possibility that the material obtained would provide a successful 'defence' for the accused. Nevertheless, the strength of the theory being propounded by the accused is relevant to the test as we have stated it, although too much weight should not be afforded to that issue as it is usually impossible to judge the 'defence' fairly in the absence of proper investigation into the evidence available to support it."
3. As in Boyd at [41], so also in the present case, the Crown accepted, appropriately, that if there was a possibility of a viable partial defence of substantial impairment being available, then the Court would adjourn the trial to allow that aspect to be fully explored.
4. Having regard to those principles, it appeared to me that in the present case a viable or strengthened partial defence of substantial impairment might be available, depending on the further investigations and consideration in relation to both Dr Widiasih's report and the MRI. In these circumstances and given the time likely require for those investigations and consideration to be undertaken properly, the trial due to commence on 10 June 2021 would need to be vacated if those aspects of the accused's partial defence were to be fully explored.
5. I bore in mind the strong public interest in a criminal trial, once fixed for hearing upon the basis that the parties were ready to proceed, ordinarily proceeding with expedition, referred to in Alexandroaia at 291 and Boyd at [40]. In addition, I took into account the distress and anguish which may be caused to the family and friends of the deceased by the scheduled trial being delayed as well as the disruption to, and adverse effect upon, witnesses to be called at the trial, if it was delayed.
6. Nonetheless, in all the circumstances including that: the accused was charged with murder; it was her application to vacate the trial; she was in custody and has indicated her intention to plead guilty to manslaughter based on s 23A of the Crimes Act; there were issues of real substance going to the accused's partial defence under s 23A that need to be fully investigated which would take some time; and, the accused's legal representatives have not been dilatory in taking appropriate steps, I was of the view that justice and fairness required that the trial in this matter be vacated.
7. Accordingly, I made the orders on 9 June 2021, which have been set out above.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2023