Court of Appeal (WA)|2000-12-20|Before: Kennedy J, Pidgeon J, Wallwork J, Scott J, Wheeler J

Ward v The Queen [2000] WASCA 413 (20 December 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WARD -v- THE QUEEN [2000] WASCA 413

Criminal law and procedure - Insanity - Directions to jury when insanity in issue - Whether issue of insanity should be considered by jury before issue of intent

Criminal law and procedure - Sentencing - Murder - Direction that applicant serve minimum term of 12 years before becoming eligible for parole - Applicant presenting significant risk of re-offending - Minimum term not excessive

Criminal Law (Mentally Impaired Defendants) Act 1996, s 21

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Pantelic (1973) 21 FLR 253

1 KENNEDY J: The facts in this case are set out in other judgments, and it is not necessary for me to repeat them. It is sufficient for the present purposes to indicate that the jury found the applicant not guilty of wilful murder, but guilty of murder. It had been conceded by the applicant that he had killed the deceased. He claimed, however, that he was of unsound mind at the time of the killing. The issue for determination in relation to the applicant's appeal against his conviction is whether the learned Chief Justice correctly directed the jury that, once they were satisfied beyond reasonable doubt that the accused had killed the deceased, they should then consider whether, when the accused did the act which caused the death of the deceased, he was not criminally responsible for that act by reason of insanity, and that the defence of insanity should be considered by them before they considered what was the accused's specific intention at the material time.

2 The history of the law of insanity in relation to the criminal law was discussed by Sir Owen Dixon in his well known paper, "A Legacy of Hadfield", M'Naghten and Maclean (1957) 31 ALJ 255. James Hadfield who, in May 1800, had fired a horse pistol at George III as the King was entering his box at the Drury Lane Theatre, was found by the jury on his trial to be "not guilty, it appearing to us that he was under the influence of insanity when the act was committed". Hadfield was thereafter detained in custody, although there was no legal authority for taking this action. In July 1800, the Act, 38 & 40 Geo III, c 94 was therefore passed to remedy this deficiency. The preamble to the Act recited that it may be dangerous to permit persons acquitted on charges of high treason, murder or felony by reason of insanity to go at large. Section 1 of the Act then provided:

"That in all cases where it shall be given in evidence upon the trial of any person charged with treason, murder, or felony, that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether such person was acquitted by them on account of such insanity; and if they shall find that such person was insane at the time of the committing such offence, the court before whom such trial shall be had, shall order such person to be kept in strict custody, in such place and in such manner as to the court shall seem fit, until His Majesty's pleasure shall be known; and it shall thereupon be lawful for His Majesty to give such order for the safe custody of such person, during his pleasure, in such place and in such manner as to His Majesty shall seem fit ...."

3 In 1882, Roderick Maclean made an attempt upon the life of Queen Victoria. He was acquitted on the ground of insanity. At the behest of the Queen, the Trial of Lunatics Act 1883 (46 & 47 Vic c 38) was enacted. It repealed s 1 of the 1800 Act. Section 2(1) of the Trial of Lunatics Act then provided:

"Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission."

Provision was made in the Act for the safe custody of persons in respect of whom special verdicts of guilty but insane were found.

4 In his paper, Sir Owen Dixon, at 256, wrote of the Act:

"When the Trial of Lunatics Act 1883 says that if it appears to the jury that the accused did the act or made the omission charged but was insane they must return the verdict in the form specified, does it refer to the overt acts only or to the acts together with the requisite state of mind which combine to constitute the crime? Logically it must mean the overt acts only. For if it meant more than the overt acts independently of the intent or other mens rea, how could it ever appear to the jury that he possessed the intent or the like when he did the acts in a case where the party accused was labouring 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?"

5 At 260 - 261, Sir Owen Dixon summarised the position, writing:

"The thesis of this paper is that the whole question of irresponsibility for acts, otherwise criminal, done under the influence of particular mental states has gone astray. The first step, that taken in 1800, seemed natural enough. But it was not really logical to require what I may call a rider to the verdict stating the ground of acquittal. The purpose of doing so involved a confusion between the administration of criminal justice and the administration of the law relating to lunacy. Further, so far as the common law goes, a jury should acquit a prisoner if some jurors think that an overt act forming an element in the crime is not proved, other jurors think a specific intent is not made out and the remaining jurors think that he has established a defence of insanity. Even the Act of 1800 seems to exclude that situation."

6 Before turning to the authorities, it is desirable to set out the relevant provisions of the Criminal Code. Section 1(1) of the Code defines "criminal responsibility" as "liable to punishment as for an offence". Section 2 of the Code defines an offence as an act or omission which renders the person doing the act or making the omission liable to punishment.

7 Section 26, which has remained unamended since the enactment of the Code, provides:

"Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question until the contrary is proved."

"A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist."

9 The expressions "not of sound mind", "unsound" and "unsoundness of mind" were not to be found s 27 of the Code in its original form. However, the words "on account of unsoundness of mind", following the word "omission" where it first appears in the first paragraph of s 27, were inserted by s 7 of the Mental Health (Consequential Provisions) Act 1996. By the same Act, the words "mental disease or natural mental infirmity" were deleted, and the words "mental impairment", which now appear in the first paragraph, were substituted. Definitions of the terms "mental illness" and "mental impairment" were included at the same time in s 1 of the Code. The term "mental illness" is defined to mean "an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli". The term "mental impairment" is defined to mean "intellectual disability, mental illness, brain damage or senility".

10 Section 653 of the Code, in its original form, provided as follows:

"If the jury find that the accused person is not guilty, or give any other verdict which shows that he is not liable to punishment, he is entitled to be discharged from the charge of which he is so acquitted; provided that if on the trial of a person charged with any indictable offence, it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the jury are to be required to find specially if they find he is not guilty, whether he was of unsound mind at the time when such act or omission took place, and to say whether he is acquitted by them on account of such unsoundness of mind; and if they find that he was of unsound mind, at the time when such act or omission took place, and say that he is acquitted by them on account of such unsoundness of mind, the Court is required to order him to be kept in strict custody in such place and in such manner as the Court thinks fit, until His Majesty's pleasure is known.

In any such case the Governor, in the name of His Majesty, may give such order for the safe custody of such person during his pleasure, in such place of confinement and in such manner as the Governor may think fit."

11 This section was derived from the amalgamation of s 644 and s 645 of the Criminal Code 1902, without any material change in the wording. It is to be noted that there was then no requirement for a special verdict identifying the offence of which the person was acquitted.

12 The present s 653 was substituted for the previous section by the Mental Health (Consequential Provisions) Act 1996. It provides:

"(1) If on the trial on indictment of an accused person the question arises whether the person was not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to -

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

(b) if they so acquitted the person, the offence the person was acquitted of.

(2) If a jury finds an accused not guilty on account of unsoundness of mind, the person is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996."

13 This section followed a recommendation of the Western Australian Law Reform Commission in its report on The Criminal Process and Persons Suffering from Mental Disorder, Project No 69, August 1991. That recommendation had its origin in the judgment of Burt CJ in Perkins v R [1983] WAR 184, at the end of the passage quoted in [23] below, notwithstanding that the present s 653 came into operation some two years after the decision of the High Court in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500.

14 Section 693(4) now provides that, if it appears to the Court of Criminal Appeal that a convicted appellant ought to have been found not guilty on account of unsoundness of mind, they may quash the conviction and direct a judgment and verdict of acquittal on account of unsoundness of mind to be entered. In that event, by s 693(5), the appellant is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996. The Court of Criminal Appeal is not expressly directed to identify the offence of which the appellant has been acquitted.

15 Section 693(4) of the 1913 Code in its original form provided:

"When it appears to the Court that a convicted appellant ought to have been acquitted on account of unsoundness of mind, they may quash the conviction and direct a judgment and verdict of acquittal on account of unsoundness of mind to be entered, and shall thereupon order the appellant to be kept in strict custody until His Majesty's pleasure is known, and in any such case the Governor in the name of His Majesty may give such order for the safe custody of the appellant during the pleasure of the Governor, in such place of confinement and in such manner as the Governor may think fit."

16 Section 21 of the Criminal Law (Mentally Impaired Defendants) Act 1996 provides:

"21. If under section 653 or 693(4) of the Criminal Code a defendant is found not guilty of an offence on account of unsoundness of mind, the court -

(a) if the offence is a Schedule 1 offence, must make a custody order in respect of the defendant;

(b) if the offence is not a Schedule 1 offence - may make an order under section 22 in respect of the defendant."

Wilful murder, murder and manslaughter are included in the offences in respect of which a custody order must be made. The expression "custody order" is defined in s 3 of the Act to mean an order that a defendant be kept in custody in accordance with Pt 5. Part 5 deals with places of custody, leave of absence, the making of reports about mentally impaired defendants, and the release of those defendants.

17 In Hawkins v The Queen (supra), the High Court was concerned with s 13 and s 16(1) of the Criminal Code (Tas). Section 13 of that Code is in identical terms to s 26 of the Western Australian Code. Section 16(1) differs from s 27 of the Western Australian Code, but not, for the present purposes, to any material extent.

18 The court in Hawkins v The Queen, consisting of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ, delivered a joint judgment. At 517, their Honours said:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16.

It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was "voluntary" and "intentional" within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code."

19 The intents prescribed by par (a) and par (b) of s 157(1) are respectively an intention to cause the death of any person and an intention to cause to any person bodily harm which the offender knew to be likely to cause death in the circumstances.

20 It clearly follows from s 27 of the Western Australian Code that if an accused is found by the jury, on the balance of probabilities, to be of unsound mind, he or she is not criminally responsible for the killing. No question of intent, or lack of intent, then arises. It is, however, still necessary to apply s 653(1) of the Code, which requires the jury, if they have found the accused person not guilty on account of unsoundness of mind at the time of the act or omission, to return a special verdict as to "the offence of which the person was acquitted". If there is a finding of unsoundness of mind, applying Hawkins v The Queen, the offence of which the accused must be found not guilty must be the offence with which he or she was charged. Thus, the jury could not acquit the accused of wilful murder and murder but find him or her not guilty of manslaughter on the ground of unsoundness of mind.

21 The Queensland Code, in s 647(1), is for all practical purposes in the same terms as s 653 in the Western Australian Code prior to its replacement in 1996, except insofar as it refers to the Mental Health Services Act 1974 (Qld).

22 The equivalent Tasmanian provision is to be found in s 383(2), which provides:

"If the jury acquit the accused person on the ground of insanity the verdict shall be that -

'The accused committed the act (or made the omission) charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law'. "

Accordingly, in neither Queensland nor in Tasmania is there any requirement for the jury to return a special verdict regarding the offence of which the accused is said to have been acquitted.

23 In Perkins v R (supra), at 188, Burt CJ considered the terms of the direction given by the trial Judge in relation to a defence of insanity on a charge of wilful murder. The trial Judge had told the jury that the first question for them to decide was whether the appellant had established his defence of insanity because "if he does not have that soundness of mind then he is not guilty of any of the homicides that I have mentioned, either wilful murder, murder or manslaughter". They were told that if the appellant established to their "satisfaction on the balance of probabilities that he did not have the capacity to control his actions then the verdict .... is not guilty on the ground of insanity and one would not be looking at the further charges - at either the wilful murder charge or the other charges on the indictment". Burt CJ indicated that this was a serious misdirection and he expressed the view that the jury must in the first place act upon the presumption under s 26 that the accused was at all material times of sound mind. If upon that footing, he said, they were not satisfied beyond reasonable doubt that the accused was guilty, then he was entitled to an unqualified verdict of not guilty and no question of his insanity then arose for the jury's determination. That question, he indicated, only arises if the jury, assuming the accused to be of sound mind, would find him guilty, and it was only when that stage had been reached that it is necessary to ask whether, on the balance of probabilities, the accused has established that he was insane within the meaning of s 28 of the Code. His Honour continued, at 188 - 189:

"It is the affirmative answer to that question following upon what would otherwise be a verdict of guilty which requires the jury to return the special verdict called for by s 653. [The only special verdict at this time required under s 653 was, if the accused was found not guilty, whether the accused was of unsound mind at the time when the act or omission alleged to constitute the offence occurred and, if so, they were required to say that he was acquitted by them on account of such unsoundness of mind]. In the terms of that section he is "acquitted by them on account of such unsoundness of mind" and it follows upon a finding that "the act or omission alleged to constitute the offence occurred". The finding is that he is not criminally responsible for that act or omission (s 27). To proceed as this jury was directed would result in a man not found to have committed any offence but being found by the jury to be of unsound mind being kept in strict custody until Her Majesty's pleasure is known.

Furthermore, I am of the opinion although it does not appear to be the practice and I know of no authority on the point, that in a case such as the present, that is to say, on an indictment charging wilful murder the jury if they acquit the accused "on account of such unsoundness of mind" should be asked to say whether they for that reason have acquitted him of wilful murder, murder or of manslaughter. It may be that upon an indictment charging wilful murder the jury -

(a) find and find beyond reasonable doubt that the accused unlawfully killed the deceased;

(b) are not persuaded to that standard of persuasion that he did so intending to cause that death; and

(c) find upon the balance of probabilities that when he did the act which caused the death he was insane and deprived of one or other of the capacities spoken of in s 27 of the Code,

and if it be the position the accused is entitled to an unqualified verdict of not guilty of wilful murder and, ignoring the verdict of murder simply to make the point, the jury would bring in a s 653 verdict specifically related to the crime of manslaughter. It is, I think, important that the Executive should know the true position and it is more important that there should exist no ground for supposing that a man has committed, although not criminally responsible for, a crime for which the jury has found him to have been not guilty."

In Perkins v R, the other members of the Court, Wickham J and myself, agreed with the reasons of the Chief Justice.

24 This Court, in Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, subsequently expressed the view that there was no reason to change the practice which had been followed in this State in respect of an accused who appears to have killed by a voluntary act, committed with an apparent intent to kill or do grievous bodily harm, for juries to be directed about those matters before being directed that the accused may be found not guilty by reason of insanity. The practice referred to appears to have been derived from the well known direction given to the jury by Dixon J in R v Porter [1933] HCA 1; (1936) 55 CLR 182. His Honour was then sitting in the original jurisdiction of the High Court in Canberra. It must be appreciated that, at this time, the Crimes Act 1900 of New South Wales applied in the Australian Capital Territory. The question of insanity was left to be determined in accordance with the common law.

25 In the later case of Garrett v The Queen [1999] WASCA 169, a majority of this Court held that the Court was bound by the views of the High Court in Hawkins v The Queen and that, accordingly, the issue of insanity falls to be determined before the issue of intent. In my view, the opinion expressed in the joint judgment of five members of the High Court clearly represented its considered opinion and, it follows, it must be accepted and applied. In the present case, the appellant admitted the killing and the next question was whether he was criminally responsible for the killing, having regard to the terms of s 27 of the Act. Only if that question was answered adversely to the appellant did the next question, what was the appellant's intention at the material time, require consideration. The substitution in 1966 of the new s 653, requiring a special verdict as to the offence of which the accused was acquitted cannot, in my opinion, require a different conclusion, although it was no doubt incorporated in the Code on the basis of the decision in Perkins v R.

26 Counsel for the applicant contended that the learned Chief Justice in this case having directed the jury that the issue of insanity should be considered before the question of the applicant's intent, this meant that the jury was considering whether the applicant was insane at the time when he stabbed the deceased, without considering how far the applicant's intent when he stabbed the deceased may have been relevant to the question of his insanity and before considering the question of whether the applicant had committed any offence at all, and thereby considering a special issue before the general issue of guilt. However, apart from the order in which the jury were instructed to consider the issues, nothing bearing upon intent of the applicant has been suggested as having affected the jury's consideration of the applicant's alleged unsoundness of mind.

27 It would seem that no leave to appeal against the applicant's conviction was necessary; but, had it been necessary, I would have granted leave. I would, however, dismiss the appeal.

28 So far as the application for leave to appeal against sentence is concerned, while I would grant leave, I would dismiss the appeal for the reasons expressed by Scott and Wheeler JJ.

29 PIDGEON J: The facts and the grounds of appeal are set out in the reasons of Scott J.

30 I have reached a similar conclusion to Wheeler J that so long as a correct direction is given in respect of each issue, the onus and standard of proof is made clear in relation to each issue, and it is made clear to the jury that it is only when they have rejected any possibility of unqualified acquittal that they may turn to issues of insanity, then there is no requirement to consider issues arising in a trial in any particular order.

31 The jury are required to give a true verdict on "the several issues joined". Often the order in which those issues are to be considered by the jury is not suggested by the trial Judge. If the trial Judge does not suggest an order or directs as to a particular order, this Court would not intervene unless a possibility arose that the course taken might not lead to a true verdict.

32 The first matter that is apparent is that it would be essential for the jury to find that the accused person is guilty of the offence charged, or one of the offences open on the indictment presented, before considering the question of insanity. It is essential that the accused person is not found to be insane and dealt with accordingly if that person has not committed one of the offences open on the indictment.

33 The question raised by this appeal is a question which arises in this State under the Criminal Code when the offence alleged is murder or wilful murder. Once the jury is satisfied that there is an unlawful killing, is the jury required to consider the question of insanity before the question of intent, or should the jury consider the question of intent first?

34 In many trials for murder or wilful murder the question would not arise as it would not be often that an accused person would say, "I did not do the act of killing but if I did do it I am of unsound mind." Often the act of killing is admitted because it is that act on which the specialists base their report to see whether or not the accused person is of sound mind.

35 The position arises in this State by reason of the way murder and wilful murder are defined under the Criminal Code. At common law it was murder for a person of sound memory and discretion unlawfully to kill any human creature in being and under the Queen's peace, with malice of forethought, either express or implied by law, provided the person killed dies of the injury inflicted within a year and a day of the same. Originally the texts expressed the law as saying that when it has been proved that one person's death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murder, unless the contrary appears from the evidence either for the prosecution or for the defence. The onus is upon such person when accused to show that his act did not amount to murder. (See 9 Halsbury 1st ed, 570 par 1154). The law was expressed in a different way in Woolmington v DPP [1935] UKHL 1; [1935] AC 462. The earlier law was disapproved and it was held that the Crown must prove malice of the prisoner and stated that when evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. Under the Criminal Code the direction is on a different basis. The jury must first of all determine whether the accused person committed the unlawful killing and then the jury must be satisfied on one or other of the particular intents.

36 Judges in this State when required to give a direction on insanity often follow what was said by Dixon J (as he then was) in R v Porter [1933] HCA 1; (1936) 55 CLR 182. That case is seen as a standard text as to how evidence of insanity is to be dealt with by the jury. The case is of no assistance in determining whether or not that question is to be considered before intent. The reason for that is that the applicable law was the Crimes Act 1900 (NSW) which provided for the punishment of murder, but left its definition to the common law. Section 19, when enacted, provided that whoever committed the crime of murder should be liable to suffer death. Dixon J at the commencement of his summing up gave a definition in contemporary language of the common law offence (at 183). There appeared in that case to have been no attempt made in the manner referred to in Woolmington v DPP to introduce evidence to show that the offence was manslaughter. In those circumstances the verdicts would either be guilty as charged, or not guilty on the ground of insanity, and all that was necessary to do was for the jury to be satisfied that in the absence of insanity, the offence of murder had been established. Clearly this question, as his Honour directed, must be considered first. It has been recognised in this State that this part of his summing up, when used, must be adjusted to conform with the Criminal Code.

37 The question of order of addresses was adverted to in Perkins v R [1983] WAR 184. In that case at the trial it was admitted that there was the killing, that being the accused's evidence. There was nothing present to show that the killing was lawful. The contention of the accused person was that he was insane at the time he did the act by reason of a head injury and, in the event of that not being proved, there was no intent. One of the factors being present was by reason of the alcohol he had consumed. The effect of the direction given at the trial was that the jury could not acquit unconditionally, but would at the very least in the absence of insanity be required to find manslaughter. The grounds of appeal which were argued in that case were:

"1. The learned trial judge erred in directing the jury that there could be no question of there being a verdict of not guilty in the sense of the Applicant being innocent of all the charges.

2. The learned trial judge failed to give any or any adequate direction as to the effects of alcohol on the formation of relevant intent."

38 The Court in its reasons said there was no need to consider the first ground. The appeal was allowed on the second ground on the basis there was sufficient evidence relating to the effects of alcohol which ought to have been put to the jury, both when considering the evidence of insanity and when considering intent. The grounds of appeal did not complain of the order in which the questions were considered so it must follow that the observations of the Court as to the order must be obiter. What was said was expressed to be no more than observations after the live ground of appeal had been decided. It was followed by the suggestion that the jury may make some further findings which would assist the Executive and if they were satisfied that the accused did not have a particular intent, that could remove a stigma.

39 In Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517 the Court said that "in principle" the question of insanity falls for determination before the issue of intent. I would see this as following logically because if there is evidence of insanity, it would be very difficult, if not impossible, to judge intent and it would be confusing and unnecessary to ask the hypothetical question, "If there were no evidence of insanity did he have the intent?"

40 The question decided in Hawkins was that if there be evidence that the accused was suffering from a mental disease when the incriminated act was done, and the evidence is capable of supporting a finding of insanity, the trial Judge must give the jury a direction on that issue.

41 However, for reasons stated by the Court, I consider that "in principle" Judges should direct on the lines suggested. The circumstances of the case may call for a different direction. I do not, however, consider that the Court is saying it is mandatory to follow a particular course.

42 The legislature subsequently enacted s 653(1)(b) of the Code. This section does no more than require a special verdict. It does not in fact state or purport to state the order in which the issue of insanity is to be considered. The grounds of appeal in this case and the facts of the case do not require the Court to attempt to determine what the requirement is under the above section. It did not arise in this case because there was no acquittal on the ground of insanity.

43 The defence of insanity is available in respect of all sections under the Code and there are instances where the verdicts open are considerably different to the offence charged, being verdicts not likely to arise in a particular case. In many cases it would be easy for the jury acquitting a person on the ground of insanity determining the offence the person was acquitted of. However, in the case of wilful murder, the difficulty may well arise as to whether the person is acquitted of murder or wilful murder or manslaughter by reason of its not being possible to judge the person's true intent by reason of the insanity. The question may arise if a jury cannot make such a determination that the Judge would take the main verdict, but discharge the jury from giving the special verdict. How such a situation is dealt with does not arise in this case and must be determined when it does arise.

44 I consider in the present case his Honour's directions followed the law and I would dismiss the appeal.

45 I would also dismiss the appeal against sentence for the reasons given by Scott J and Wheeler J.

46 WALLWORK J: The facts and the general background to this appeal are set out in the reasons for judgment of Scott J and I will not refer to them except as is required for the purposes of these reasons.

47 It is significant, as noted by Scott J, that s 27 of the Criminal Code (WA) provides that in certain circumstances a person is not criminally responsible "for an act or omission on account of unsoundness of mind...." The words "an act or omission" are different to the word "offence" which is defined in s 2 of the Code as being: "an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence." The term "criminal responsibility" is defined in s 1 of the Code to mean: "liability to punishment as for an offence."

48 There has been no offence committed if a person has been found to be not criminally responsible for the relevant act or omission. Putting to one side the effect of s 653(1)(b) for the moment, it would therefore be contrary to s 27 of the Code to speculate about a possible offence "but for" the effect of s 27.

49 In R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 77, after discussing questions arising in connection with automatism and unsoundness of mind, Toohey J said:

"If the jury is satisfied that the acts constituting the offence were done in the exercise of the accused's will and is not satisfied that they were done at a time when he or she was in a state of mental disease (again, this assumes that there evidence to warrant their consideration of this aspect), it must then consider whether the other elements of the offence have been proved beyond reasonable doubt. If they have been so proved the proper verdict is guilty."

50 His Honour had earlier pointed out that Chapter 5 of the Code is headed "Criminal Responsibility" and that the words "criminal responsibility" are defined in s 1 of the Code as meaning "liability to punishment as for an offence."

51 At 86, Gaudron J apparently took a different view to Toohey J insofar as her Honour, when discussing automatism, said:

"...the jury should be directed to consider first whether the prosecution has proved its case beyond reasonable doubt by negativing the possibility that the accused was acting involuntarily as a result of some mental state which is or may be experienced by a healthy mind. It should then be directed that, if the first question is answered against the accused (and assuming that the other elements of the offence are established beyond reasonable doubt), it should consider whether there should be a verdict of not guilty by reason of unsoundness of mind."

In that decision the other Judges did not comment on the order in which matters should be considered by the jury.

52 In Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517, when considering the order in which the jury should consider the relevant matters in a murder trial, Mason CJ, Brennan, Deane, Dawson and Gaudron JJ said:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16."

53 In this State the relevant equivalent sections to s 13 and s 16 of the Tasmanian Code are s 23 and s 27 of the Criminal Code.

54 At 517 in Hawkins, their Honours went on to say:

"Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent...."

55 It would therefore, in my view, be putting things the wrong way around, to examine the possible effect of the medical evidence upon any intent, before considering its effect, if any, under s 27 of the Code.

56 In my opinion, as the question of what offence an accused person could be found to be guilty of does not arise until he or she is criminally responsible for the act or omission in question, it follows that questions arising as to an accused person's criminal responsibility should be decided before questions such as whether a person is guilty of wilful murder, murder or manslaughter, which questions depend (in this State) on the intent with which that person may have acted.

57 Further, where there is evidence which raises a question of whether the accused is criminally responsible, there is no reason why a Judge, directing a jury, should not direct the jury to decide that question first. If the accused is criminally responsible, the jury can then consider the remaining questions which have to be decided. Unless the person is criminally responsible there is no point in deciding the further questions.

58 Section 653(1)(b) of the Criminal Code which requires that if a person is found not guilty by reason of unsoundness of mind, the jury are required to specify the offence of which the person was acquitted, contains within it notions which are contradictory. The section firstly provides that:

"If on the trial on indictment of an accused person the question arises whether the person is not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to -

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; ...."

59 So far the section correctly expresses the notions of the criminal law. It does not refer at this stage to any offence because there is no offence committed if a person is found not guilty by reason of unsoundness of mind.

"(b) ... if they so acquitted the person, the offence the person was acquitted of",

it is out of order, because a person who is found not guilty by reason of unsoundness of mind has not been acquitted of any offence. There is no offence by definition - s 2 of the Code. Section 653(1)(b) cannot therefore be technically complied with.

61 Further, to instruct a jury, when it has found a person not guilty by reason of unsoundness of mind, to consider what offence it would otherwise have found the innocent person guilty of, would be a hypothetical exercise. It could involve most complicated considerations which might result in the jury not being able to reach a verdict at all.

62 The finding of an intent to kill, for example, supposes a "rational" intent. That is why a person is found not guilty by reason of unsoundness of mind:

"...if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of the incapacity to understand what he is doing, ... or of capacity to know that he ought not to do the act or make the omission."

63 It is also the reason why a person whose mind is at the relevant time affected by delusions and who is not otherwise entitled to the benefit of the verdict of unsoundness of mind: "is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist." - s 27.

64 I agree with Scott J that there was no error on the part of the learned trial Judge when directing the jury and that the grounds of the application for leave to appeal against conviction were not made out. I also would dismiss the application for leave to appeal against the conviction.

65 Concerning the application for leave to appeal against sentence, I agree with the reasons for judgment of Scott and Wheeler JJ. I would grant leave but dismiss the appeal.

66 SCOTT J: The applicant was tried in the Supreme Court on an indictment which alleged that on 15 August 1998 at Orelia, he wilfully murdered Reginald Timothy Hampton.

67 The applicant pleaded not guilty and following trial was found guilty of murder.

68 As part of the defence case at trial, the applicant called two psychiatrists, Steven John Reuben Patchett ("Dr Patchett") and Robert Astley Finlay-Jones ("Dr Finlay-Jones"). Those psychiatrists gave

evidence as to the applicant's mental state at the time of the incidents the subject of the indictment. That evidence will be referred to later in these reasons.

69 As part of the Crown's case the prosecution called Zdenek Srna ("Dr Srna") who also testified as to the applicant's mental state at the time of the incident. There was a conflict in the evidence between the psychiatrists in that whilst Dr Srna testified that the applicant suffered from delusions, namely, that he believed that he was God; came from a different planet to save people and to kill the wicked and that he could kill the wicked by the power of thought, he was not insane within the meaning of the law because at the time of the relevant events he did not lack one of the necessary capacities which the law describes. Dr Srna described the delusions, to which the applicant was subject, as "religious delusions and delusions of grandeur". He was of the view that there was no direct link between those delusions and the offence.

70 Dr Patchett on the other hand maintained that at the time of the relevant events, the applicant was both auditorially hallucinated and deluded and suffering from what he described as "command hallucinations" which would have led to the applicant being unable to control his actions.

71 Dr Finlay-Jones' evidence as to the applicant's delusions was much the same as the evidence of Dr Patchett however, Dr Finlay-Jones included a more specific description of the hallucinations, namely:

"Some of the delusions that he mentioned to me when I interviewed him were firstly that he was God; secondly, that he came from a planet called Vamosia, which as far as I know does not exist; thirdly, that he had unusual and unnatural powers. For example, he claimed responsibility for the recent earthquake in Papua New Guinea and for the deaths of Princess Diana, Michael Hutchins (sic) Hutchence, John Candy and John Denver and he went on to explain that he could apply these powers that he had to almost anybody that he chose to do so."

72 Dr Finlay-Jones was also of the view that the applicant was unable to control his actions. Dr Finlay-Jones was unable to be definitive as to whether the applicant lacked any other capacity.

73 It should also be mentioned that the applicant gave evidence and specifically testified about the voices in his head and the delusions from which he suffered. In addition, he testified about the medication that he was taking and its effect upon him. In relation to the incident itself, the applicant testified that he "just absolutely lost control" during the incident.

74 It was common ground that the accused killed the deceased following an argument about a dog, which the applicant had obtained from the deceased. The applicant obtained a knife from the kitchen of the unit where he lived. He used that knife to stab the deceased three times. One stab wound was to the back. That wound penetrated the lung of the deceased in a manner that was potentially fatal and which turned out to be fatal. The applicant also stabbed the deceased twice in the chest. One of those wounds was non-fatal, but the second penetrated the heart and was a fatal wound.

75 It is not necessary to refer to the facts in any greater detail in the course of these reasons apart from the fact that the applicant also ran a defence of self-defence and provocation in the course of the trial. It is common ground that there was evidence which justified the leaving of both of those defences to the jury.

"1 That the Learned Trial Judge erred in law in directing the jury that, once satisfied beyond reasonable doubt that the accused killed the deceased, the jury should then consider whether, when the accused did the act or acts which caused the death he was not criminally responsible by reason of insanity and that the defence of insanity should be considered by the jury before considering what the accused's specific intention was at the material time.

The relevant directions are at:

AB 286 L 17-19

AB 286 L 28-32

AB 288 L 1-9

AB 311 L 39-45

AB 312 L 18-21

AB 340 L 47-50

AB 352 L 22-26

and in consequence there was procedural error in the conduct of the trial which adversely affected the fairness of the trial and prejudiced the accused.

2 That the learned trial judge, in directing that the question of insanity should be considered by the jury before the issue of the applicant's specific intention in killing, adopted the approach favoured by the majority in Garrett v R unrep [1999] WASCA 169 (Ipp J, Wallwork J, and Murray J dissenting), in preference to Nolan v R unrep CCAWA SCL No 970260 delivered on 22 May 1997 and Perkins v R [1983] WAR 184. Although the directions given by the learned trial judge were in accordance with the decision of the Court of Criminal Appeal in Garrett v R, the correct view of the law is that expressed in Nolan v R and Perkins v R (supra) and the Applicant has suffered a miscarriage of justice as a consequence.

3 The learned trial judge directed the jury that the issue of insanity should be considered before the question of the applicant's intent. This meant that the jury was considering whether the applicant was insane at the time when he stabbed the deceased:

(a) without considering how far the applicant's intent, when he stabbed the deceased, may have been relevant to the question of his insanity;

(b) before considering the question of whether the applicant had committed any offence at all and thereby considering a special issue before the general issue of guilt."

77 Because the grounds of appeal raise issues which it is said concern conflicting decisions in the Court of Criminal Appeal, a bench of five judges was assembled for the purpose of hearing this application so that those conflicts could be resolved.

78 The primary issue for consideration arises from the first ground of appeal and focuses upon the order in which the issues raised at the trial should have been left to the jury for determination. In summary form, the issue for determination is whether the question of insanity falls for determination prior to the question of intent, or whether all of the elements of each of the offences had to be determined before the question of insanity.

79 Before dealing with the case law on the topic, it is necessary to refer to the relevant provisions of the Criminal Code.

"2 Definition of offence

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence."

"26 Presumption of sanity

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved."

"27 Insanity

A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist."

83 The first thing to be noted about s 27 of the Criminal Code is that it relieves a person from criminal responsibility for "an act or omission". The section does not absolve a person from criminal responsibility for an "offence".

84 There are other provisions of the Criminal Code, which absolve a person from criminal liability for the commission of an "offence" (for example, s 17, s 246, s 281).

85 Before summing up to the jury, the learned trial Judge advised counsel that he was intending to sum up in the way indicated by the majority of this Court in Garrett v The Queen [1999] WASCA 169. That decision was in accordance with the decision of the High Court in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500.

86 Both of those decisions were said to be contrary to the decision of the Court of Criminal Appeal in Perkins v R [1983] WAR 184 and Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997.

87 In Perkins v R (supra), Burt CJ (with whom Wickham and Kennedy JJ agreed) said obiter at 188:

"In my opinion the jury must in the first place act upon the presumption that the accused was at all material times of sound mind (s 26). If upon that footing they are not satisfied beyond reasonable doubt that he is guilty, then he is entitled to an unqualified verdict of not guilty and no question of his insanity then arises for the jury's determination. That question only arises if the jury, assuming the accused to be of sound mind, would find him guilty and it is only when that stage has been reached that it is necessary to ask whether, on the balance of probabilities, the accused has established that he was insane within the meaning of s 28 of the Code."

88 The issue was also considered by the Court of Criminal Appeal in Nolan v The Queen (supra).

89 In Hawkins v The Queen (supra), Mason CJ, Brennan, Deane, Dawson and Gaudron JJ said at 517:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be; what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16.

It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code."

90 The decision in Hawkins was based upon the corresponding provisions of the Tasmanian Criminal Code which for practical purposes equate to the provisions of the Western Australian Code.

91 The matter was also considered in Garrett v The Queen (supra) by Ipp, Wallwork and Murray JJ. In that case, Ipp J, having cited a relevant passage from Hawkins, said at 5 [4]:

"According to the High Court, therefore, the jury must first determine 'what did the accused do and is he criminally responsible for doing it?' These are the 'basic questions'. The issue of specific intent is to be addressed only when the 'basic questions are answered adversely to an accused'. That is why 'the question of insanity falls for determination before the issue of intent'. It follows that if the basic questions are answered favourably to the prosecution, the jury must consider whether the accused person should be found not guilty on account of unsoundness of mind. Should the jury determine that such a verdict should not be delivered, they should go on to consider the other elements of the offence (and, in particular - in a case of wilful murder - the issue of specific intent). I appreciate that there are dicta to the contrary in Nolan v R, unreported; CCA SCt of WA; Library No 970260; 22 May 1997. These dicta were, however, expressed obiter, and with great respect to the members of the Court concerned, I consider that they are not in accord with what was said in Hawkins v R."

92 Ipp J went on to consider the effect of s 653(1) of the Criminal Code which provides:

(1) If on the trial on indictment of an accused person the question arises whether the person was not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to -

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

(b) if they so acquitted the person, the offence the person was acquitted of."

93 Ipp J in Garrett's case was of the opinion that s 653(1)(b) was not inconsistent with the views expressed by the High Court in Hawkins and concluded that even where the jury acquitted the accused on account of unsoundness of mind, they should be asked, in accordance with s 653(1)(b), to return a special verdict identifying the offence of which the accused was acquitted. I will return to that issue later in these reasons.

"To the extent that s 653(1) of the Criminal Code goes further than the views expressed by the learned Justices of the High Court in Hawkins (AJ) v R (1994) 179 CLR 5000 at 517, it must be assumed that Parliament has legislated with awareness of those views, as s 653(1) came into effect after the decision in Hawkins."

"In my view juries in this State should be directed, in accord with the reasons for judgment of the five High Court Justices in Hawkins, that they should decide the issues of 'what did the accused do and is he criminally responsible for doing it', before addressing the issue of intent. I appreciate that this is contrary to the words in Nolan which have already been referred to, but those words were not necessary to the decision in Nolan and with respect, to that extent, they were obiter and not binding.

I therefore differ and again with respect, from the view of Murray J, that in a case such as this, s 653(1)(b) does not require a jury 'to consider or make a finding about the form of homicide of which, had they not been of that view, they would have convicted the accused'."

"I consider that the jury must be directed about the order in which they resolve the various issues only to the extent supported by the statement of principle made in Hawkins, that is, as was held in Perkins, it must be made clear that there is no need, and it would be inappropriate, to consider the question of unsoundness of mind until the jury has reached the stage that they have decided that upon the basis that the accused is presumed to be of sound mind: Code s 26, he or she has committed a willed act or omission which would constitute the offence of manslaughter, of which it would be open to convict the accused upon the indictment presented."

97 In relation to the issue under s 653(1)(b), Murray J said at 24 [70]:

"I would not read the Code s 653(1)(b) in a case such as this as expressly requiring the jury to be instructed that, should they return a special verdict of not guilty on account of unsoundness of mind they should say not guilty of the offences of wilful murder, murder and manslaughter. The paragraph speaks of returning a special verdict 'as to' the offence of which the accused is specially acquitted. If, in a case such as this, for example, the jury were to simply return a verdict by saying, 'Not guilty because of insanity', that would identify the verdict as being a special verdict 'as to' the matters identified in both paragraphs of s 653(1). '[T]he offence the person was acquitted of' would be each offence of which it was open to convict the accused upon the indictment. No particular form of words is required of, or need be sought from, the jury. Given that s 653(1)(b) may not be construed as dictating the order in which the jury should deal with the various issues which may arise in a case such as this, in a way which would be contrary to general principle and to the way the Code (including s 653 itself) is worded, in my opinion no other mode of taking such a verdict would be appropriate."

98 On the issue of the correct construction of s 653(1)(b), in my opinion, the views of Murray J are to be preferred. In my opinion, s 653(1)(b) does not require a jury in every case to deliver what the section refers to as a "special verdict".

99 In my opinion, in many instances it would not only be inappropriate for a jury to return such a special verdict but it would also be extremely difficult for them to do so. The reason is that the relevant intent for wilful murder or murder requires the jury to assess that intent on the basis that the accused's mental condition at the time was such as to fall short of insanity (Hawkins).

100 It follows that to return a special verdict under s 653(1)(b) the jury would have to consider the matter on an entirely hypothetical basis once they had reached the conclusion that the provisions of s 27 applied so as to excuse the accused from the criminal act or omission. Whilst in some cases it may be possible for a jury to reach a verdict on a hypothetical basis, that will not always be the case. In my view it is a needless and unnecessary step to require a jury to do so. In that respect it is important to note that Burt CJ in Perkins, when considering the issue of the jury returning the special verdict, said at 189:

"It is, I think, important that the Executive should know the true position and it is more important that there should exist no ground for supposing that a man has committed, although not criminally responsible for, a crime for which the jury has found him to have been not guilty."

101 In that respect it is to be remembered that at the time of the decision in Perkins, the effect of a verdict of not guilty on account of unsoundness of mind under the then existing s 653 of the Criminal Code was that the court was required to order that the offender "be kept in strict custody in such place and in such manner as the court thinks fit, until Her Majesty's pleasure is known".

102 Those provisions have since been replaced by the Criminal Law (Mentally Impaired) Defendants' Act 1996 which in Part 6 establishes a Mentally Impaired Defendants' Review Board. That Board has the power to recommend to the Governor to release a mentally impaired defendant and although the ultimate decision still remains with the Executive, the recommendation of the Board is designed and intended to be a matter of importance to the Executive in making that decision. The procedure therefore that operated under the old s 653 of the Criminal Code and which was a factor in the decision in Perkins, no longer applies.

103 It follows, in my opinion, that the decision in Hawkins should now be followed and that the question of insanity should fall for determination before the issue of intent. It is only where the defence of insanity is rejected that ordinarily the question of intent will fall for consideration by a jury. It follows, in my opinion, that s 653(1)(b) should not be considered mandatory and that a jury should be directed that they are only to make a specific finding as to the offence of which the accused is acquitted by unsoundness of mind where they can properly reach such a special verdict. If a jury is unable to so conclude, then the verdict of acquittal on account of unsoundness of mind should be taken as the verdict of the jury without requiring the jury to return the special verdict under s 653.

104 In support of this conclusion I would add that s 642 of the Criminal Code provides:

"642 Special Verdict

In any case in which it appears to the court that the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact, or that the proper punishment to be awarded upon conviction may depend upon some specific fact, the court may require the jury to find that fact specially."

105 Ordinarily a special verdict should not be taken unless in a particular case such a verdict is required by the trial Judge. Special verdicts cannot and should not be taken as a matter of course and in my view s 653 does not require such a verdict to be taken in every case.

106 As I have indicated earlier in these reasons, in my opinion, s 27 of the Criminal Code relieves a person from criminal responsibility for the act or omission rather than for the offence. This can be contrasted with the position at common law where, since the Trial of Lunatic's Act 1883 [46 and 47 Victoria c 38] the jury's verdict in an insanity case was that the accused "was guilty of the act or omission charged against him but was insane at the time when the act was done or the omission made". That verdict, which at common law was known as "guilty but insane", could only be the subject of appeal against the finding of guilt in relation to the act or omission but was otherwise not appealable: see Halsbury's Laws of England, Second Edition, Volume 9, Criminal Law to Crown Practice, par 17. Where such a verdict is available it may be appropriate for a jury to return a special verdict as to the offence which they find proved against the accused where the insanity defence applies. That is to be contrasted with the situation under the Criminal Code where in order to acquit an accused on the grounds of unsoundness of mind, the jury does not have to be satisfied beyond reasonable doubt that the accused committed the offence, but only that he committed the relevant act or omission for which he is excused. Accordingly, it is not necessary for the jury to reach a special verdict when it is not possible for them to do so.

107 In this case, as I have indicated, the learned trial Judge advised counsel that he was intending to sum up in accordance with the decisions in Garrett and Hawkins and he did so. The grounds of appeal raise no issue as to the manner in which that was done and having read his Honour's summing up, in my view, it was entirely appropriate and in accordance with those decisions. It follows, in my view, that the grounds of appeal are not made out and I would dismiss the application.

108 The applicant has also applied for leave to appeal against sentence. The grounds of appeal are:

"1 The minimum term was manifestly excessive having regard to -

(a) the circumstances of the offence, and in particular, the deceased provoking the applicant into assaulting him;

(b) the degree to which the Applicant's mental illness may have affected his capacity to refrain from responding to provocation;

(c) the absence of previous convictions for offences of violence.

2 That the learned trial Judge erred in law when his Honour said:

'In all the circumstances, I must take the view that you are at present a person who is at some significant degree of risk of reoffending. You have demonstrated by your actions that you are a person from whom the community needs to be protected ... It may well be that at some time in the future as a result of treatment someone may be convinced that you can be released upon parole, but in all the circumstances it would seem to me that the sentence which I must impose of life imprisonment would not mean a great deal if I took the view, as I have been asked to by your counsel, that this is an offence at the lower end of the scale of offences of murder. It is not.'

The learned trial Judge ought to have taken into consideration that the prognosis as to whether the applicant is likely to reoffend would not arise for consideration until the Applicant's conditional release on parole is considered in many years time. Further the extent to which his Honour's concern arose from the Applicant's risk of reoffending is a matter which ought not to have increased the minimum term but which should be considered by the Parole Board at the relevant time.

3 Such further or other grounds as my legal adviser states if I am granted Legal Aid."

109 In developing submissions on sentence, counsel for the applicant maintained that the assault upon the applicant was such as to provide some justification for his conduct. In that respect counsel for the applicant pointed out that in the course of the altercation between himself and the deceased concerning the dog, the deceased had picked up an electric radiator, which was plugged in and operating, and thrown it at him. The applicant, in his evidence, said that he was concerned that he could be electrocuted or injured by reason of the radiator being thrown at him. He said in his evidence that the radiator had a long lead and that it was thrown at his face, but he managed to block it with his arm. As a consequence, he said his arm was burnt and the police, he said, had a photograph of the burn on his arm. He maintained that the radiator had bounced off him and hit a wall, causing a hole in the wall.

110 It was also pointed out that the applicant suffered from schizophrenia, of a type that would have lowered his self-control to a greater extent than would have been the case in a normal person.

111 The applicant was sentenced to a term of life imprisonment as required under s 282(b) of the Criminal Code. In relation to that term, the learned trial Judge directed that the applicant serve a minimum term of 12 years' imprisonment before becoming eligible for parole. That sentence was backdated to 16 August 1998 and there is no challenge to the commencement date.

112 As the argument was developed by counsel for the applicant, it was said that the term of 12 years, being the earliest at which the applicant could be considered for parole was too long. In that respect, s 90(1) of the Sentencing Act 1995 requires a court that sentences an offender to life imprisonment for murder to set a minimum period of at least 7, and not more than 14 years, before the offender becomes eligible for release on parole. It is contended by counsel for the applicant that in setting a term of 12 years before eligibility, the penalty imposed was excessive.

113 Counsel for the applicant submitted that the minimum term was not a date upon which the applicant would be released but rather a date upon which he could first be considered for parole. That submission is correct. Counsel also pointed out that if parole was not granted at the earliest available date, it could be reconsidered at 3-year intervals. That is provided by s 20(2) of the Sentencing Administration Act 1995 in the table appended to that section.

114 The issue that falls for consideration is whether the learned trial Judge was in error in imposing a minimum term of 12 years before the applicant could be considered for parole.

115 In sentencing the applicant, the learned trial Judge traced his history, particularly in relation to his medical and psychiatric treatment for his schizophrenic illness and said:

"In all the circumstances, I must take the view that you are at present a person who is at some significant degree of risk of reoffending. You have demonstrated by your actions that you are a person from whom the community needs to be protected. The verdict of the jury indicates that you knew what you were doing at the time when you stabbed the deceased. You did so with the intention of causing him grievous bodily harm. The result was that he died and you have now been convicted of the offence of murder.

It may well be that at some time in the future as a result of treatment someone may be convinced that you can be released

upon parole, but in all the circumstances it would seem to me that the sentence which I must impose of life imprisonment would not mean a great deal if I took the view, as I have been asked to by your counsel, that this is an offence at the lower end of the scale of offences of murder. It is not."

116 His Honour, as I have said, concluded that the appropriate period of imprisonment to be served by the applicant before becoming eligible for consideration for parole was 12 years.

117 In selecting that term, I am quite unable to conclude that the trial Judge made an error of law or that the sentence imposed was outside the appropriate range of sentence for the conduct involved. In my view it was properly open to the learned trial Judge to conclude that the applicant was a danger to the community and that he would remain so unless, and until he could be appropriately treated for his mental condition. That was an appropriate matter for the trial Judge to take into account: Veen v The Queen [No 2] [1988] HCA 14; (1987-1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 476.

118 I am unable to conclude that any error of law has been demonstrated in the exercise of the sentencing discretion of the learned trial Judge and whilst I would grant leave to appeal, I would dismiss the appeal against sentence.

119 WHEELER J: I have read in draft the reasons for decision of Scott J, and gratefully adopt his outline of the relevant facts.

120 I have concluded that, in directing the attention of the jury to the question of insanity before they turned to consider the specific intent of the applicant, there was no misdirection by the learned trial Judge. However, I do not agree with the proposition that as a matter of law it is necessary in every case for a jury to be directed to consider questions of unsoundness of mind before they go on to issues of specific intent for wilful murder or murder. There are, I think, real difficulties both of principle and of a practical nature which would be involved in such a rule of universal application, and in my view such a rule should be adopted in this State only if clear authority requires it. For the reasons which I now give, I am of the view that the High Court, in the case of Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500, did not intend to lay down any such rule.

121 It is convenient to consider the position prior to Hawkins. The direction to the jury given by Dixon J in R v Porter [1933] HCA 1; (1936) 55 CLR 182 has been referred to with approval on a number of occasions since (eg Stapleton v R [1952] HCA 56; [1952] 86 CLR 358 at 365, 367; Wilgoss v R [1960] HCA 5; (1960) 105 CLR 295 at 301; and Sodeman v R [1936] HCA 75; (1936) 55 CLR 192 at 219). In Porter at 185, his Honour directed the jury that it was only when they were satisfied beyond reasonable doubt in relation to three matters that they would turn to proceed to consider the question of insanity. Those three matters were that the accused had administered strychnine to the child, that he did so with the intention of killing it, and that death resulted from administration. In that case, it does not appear that an alternative verdict of manslaughter was a live issue, but the direction nevertheless suggests that a consideration of intention may, rationally, precede consideration of insanity.

122 In this State, it has long been the practice where an accused may have killed by a voluntary act committed with an apparent intent to kill or do grievous bodily harm, for juries to be directed about those matters before being directed on the question of insanity. Generally, consideration of insanity is the last matter to which the attention of the jury is directed (Perkins v R [1983] WAR 184, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 per Malcolm CJ at 50).

123 In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, those Justices of the High Court who formed the majority, made observations tending in different directions as to the appropriate order of considering these issues. At 86, Gaudron J said that, as between involuntariness and insanity, the jury should first be directed to consider whether the prosecution had negatived involuntariness as a result of a mental state which might be experienced by a healthy mind and then directed that "if the first question is answered against the accused (and assuming that the other elements of the offence are established beyond reasonable doubt)" the jury should consider whether there should be a verdict of not guilty by reason of unsoundness of mind. The passage tends to suggest that all other elements of the offence, including questions of specific intent (the offence in issue in Falconer being wilful murder) should be considered before an answer is given to the question of whether the accused is entitled to what for convenience I will call the "insanity verdict".

124 Toohey J, by contrast, (at 77-78) considered that the jury should first ask whether the Crown had disproved non-insane automatism, then ask the question whether the accused had proved insanity on the balance of probabilities, and if not satisfied of that, it must then consider whether the other elements of the offence have been proved beyond reasonable doubt.

125 Deane and Dawson JJ at 63 took the view that the jury should first be directed in relation to sane automatism and then in relation to insanity, and observed that "if the prosecution does disprove sane automatism and if the insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict". It is likely that their Honours were not addressing their comments in that passage to the question of specific intent at all, but the passage does appear to suggest an assumption that specific intent had been considered and determined adversely to the accused at a stage prior to the consideration of the issue of insanity.

126 Against the background of the earlier practice and the decisions to which I have referred, I think there is force in the submissions made on behalf of the appellant that if the High Court in Hawkins had intended to change the long-standing practice as to the way in which juries were directed, very clear words would have been used to do so. It is perhaps desirable to recall what was in issue in Hawkins. In that case, the defence case was that the accused had intended to commit suicide and had at the last moment turned the rifle on his father and pulled the trigger without having the specific intent necessary to establish the offence of murder. The court determined that evidence of mental disease, which is incapable of supporting a finding of insanity or which does not satisfy the jury that the accused was insane when the relevant act was done, is inadmissible on and irrelevant to the question of whether the act was voluntary, but is relevant and admissible on the issue of the formation of the relevant specific intent. In that case, the only live issues appear to have been (the medical evidence called having been found irrelevant to the question of voluntariness) those of insanity and of specific intent.

127 The passages from the judgment which are in issue in this case appear at 517 and are as follows:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be; what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16.

It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code."

128 The introductory words of each of the two paragraphs from which I have quoted above are, I think, important. The first begins with the words "In principle ..." The court is there setting out as a matter of logic the way in which it sees the relationship between various issues which were in that case raised by the provisions of the Criminal Code of Tasmania. The latter part of the first paragraph recognises that specific intent may be considered "on the hypothesis" that the accused was sane, which appears inconsistent with the view that judges must direct juries to resolve this issue first. This is, however, the portion of the passage which I have found most difficult to interpret and to apply. I do not think that the High Court is there taking the view that a person who was relevantly insane cannot, as a matter of fact, have had an intention to cause a specific result. Such a view would be inconsistent with the reality of many cases of insanity encountered: for example, where an accused freely admits that he had an intention to cause the death of another but did so because "voices" instructed him to cause this result. Rather, I think that the court is pointing to the fact that a person who was relevantly insane cannot be convicted of murder or wilful murder. This is obviously correct although, as I venture to suggest later, strict logic is not, in my view, the only consideration in directions on this subject.

129 The second paragraph is the one which is concerned with the duties of the trial Judge. He or she must give the jury a direction on insanity if there is evidence relevant to that issue and must admit, and direct the jury in relation to, evidence of mental disease which is relevant to the question of specific intent. This is the portion of the judgment which I would take as directing trial judges as to how juries must be instructed.

130 It has never been my experience that judges direct juries strictly in accordance with the order which formal logic might dictate in considering elements of an offence or potential defences. Rather, jury directions are governed by a need to ensure clarity and to ensure that jurors avoid errors into which they might otherwise fall. For example, where there is an issue as to identity perhaps, or an alibi provided, in a case of armed robbery, logic might suggest that the first question for the jury is whether it was the accused present at the scene at all; it is only if that question is answered adversely to an accused that it is necessary then to consider the elements of the offence. However, in order to ensure that appropriate emphasis is given to the Crown's duty to prove all elements of the offence beyond reasonable doubt, and to avoid the impression that what is called for is merely a determination of whether to believe the account given by the accused, it is common in such cases for the Judge to direct the jury first in relation to all of the elements of the offence, before turning to those particular issues. Similarly, again taking armed robbery as an example, it is often the case that in practice during the course of a trial one or the other elements of the offence, or perhaps a circumstance of aggravation, emerges as the issue upon which the defence conducted by the accused is particularly focussed. In such a case, it is not unusual for that element or circumstance to be dealt with in an order which is dictated neither by the indictment nor by the chronology of the events, nor by considerations of strict logic; rather, it is generally dealt with as either the first or the last matter of the Judge's direction in relation to the offence. Provided that all defences open to an accused are the subject of proper directions, and all elements of the offence are canvassed, it has not as I understand it been suggested that it is necessary, as a matter of law, that directions consider particular matters in any particular order.

131 The sole exception to this general rule appears to emerge (leaving Hawkins aside for the moment) in relation to the question of insanity, from Falconer. The reason for that exception is clear enough. Because of the obligation upon the Crown to prove its case beyond reasonable doubt, and because of the consequences of a verdict of not guilty by reason of unsoundness of mind for an accused, there would be risk of a miscarriage of justice if a jury were to be given a direction which would invite them to acquit by reason of unsoundness of mind when, properly directed, they might instead have returned an unqualified verdict of not guilty. That risk would emerge if they were, for example, directed to consider questions of unsoundness of mind before questions of non-insane automatism. The judgments in Falconer, to which I have referred, establish that it is necessary that a jury be directed to consider non-insane automatism as the first of those two issues. I would note that the clear instruction to trial courts which emerges from these passages are, in my view, in contrast with the more general and more abstract nature of the first of the paragraphs which I have quoted from Hawkins.

132 As a matter of principle, there are considerations which, particularly in this State, would suggest that insanity should generally be the last issue in relation to which the jury is directed. The first matter of broad general principle is that it is of course for the Crown to prove all elements of an offence before an accused may be convicted. In my view, that suggests that an accused is entitled to have a jury determine precisely what offence, if any, the Crown is able to prove against him or her before attention is directed to the question of whether he or she should be exempted from criminal responsibility by reason of unsoundness of mind.

133 A verdict of not guilty by reason of unsoundness of mind is a verdict which, although it means that an accused "is not criminally responsible" for the act (Criminal Code, s 27) nevertheless carries with it the stigma of a finding that the person has killed in circumstances which are not authorised, justified or excused by law. It should not necessarily be assumed that merely because he or she will escape punishment, an accused person has no further interest in the nature of the jury's finding. The insanity may not persist, or it may take a form which allows the accused to comprehend the stigma which attaches to such a verdict, and it may be important for the accused not to be visited with the continuing stigma which attaches, for example, to an unresolved suspicion that he or she may have killed another intending to cause death, rather than while lacking such an intention.

134 In this State, s 653(1)(b) of the Criminal Code is, in my view, of significance. Section 653(1) provides as follows:

"If on the trial on indictment of an accused person the question arises whether the person was not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to -

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

(b) if they so acquitted the person, the offence the person was acquitted of."

135 With all respect to those who hold a contrary view, it is my view that s 653(1)(b) requires a jury on an indictment charging wilful murder, where they find the person not guilty on account of unsoundness of mind, to deliver a special verdict as to whether they acquitted the person of wilful murder, murder, or manslaughter by reason of that unsoundness of mind.

136 In the case of Garrett v The Queen [1999] WASCA 169, Murray J at 24 [70] said that if on an indictment alleging wilful murder, the jury were simply to return a verdict of "not guilty because of insanity", that would identify the verdict as being a special verdict "as to" the matters identified in both paragraphs of s 653(1). However, in my respectful view, this approach renders subsection (b) a nullity, while the section appears to require a special verdict in respect of the matters set out in both subsection (a) and subsection (b). I would prefer the view of Wallwork J in Garrett at 8 [14] that s 653(1)(b) was intended to give legislative effect to the views of Burt CJ in Perkins that:

"On an indictment charging wilful murder, the jury if they acquit the accused 'on account of such unsoundness of mind', should be asked to say whether they, for that reason, have acquitted him of wilful murder, murder or manslaughter."

137 The reason given by Burt CJ for that requirement was that it was important that the executive should know the true position and that there should be no ground for supposing that a person has committed a crime (eg wilful murder), although not criminally responsible for it, in a case where a jury has found him not guilty of it. Although an accused found not guilty on account of unsoundness of mind is now dealt with pursuant to the Criminal Law (Mentally Impaired Defendants) Act 1996, it should not necessarily thereby be assumed that s 653(1)(b) serves no purpose. The reasons why an accused may wish to know these matters I have alluded to. Additionally, it is in many cases also important for the family and friends of the deceased, or for those who may have been caught up in the events leading to the killing, to know what view is taken by the jury as to the accused's intent. Finally, the decisions as to treatment and disposition of a person acquitted by reason of unsoundness of mind may be influenced by the knowledge that a jury, after close examination of all of the relevant evidence, has formed a particular view as to his or her intention at the relevant time.

138 If it is the case that the section requires the jury to consider the accused's specific intention so as to arrive at one of the verdicts apparently required by s 653(1)(b), the question then arises as to whether it says anything as to the stage at which those questions must be considered. There are two indications that it may. The first is the language of the section, which refers to the offence the person "was acquitted of", suggesting that what is intended is not some hypothetical consideration of specific intent at a stage subsequent to the jury's decision to acquit in any event by reason of unsoundness of mind. The second, and related, consideration is that it would appear undesirable for a jury to be asked to determine what it by then knows or understands to be hypothetical questions, by considering questions of intent after it has already determined to acquit on the basis of unsoundness of mind. However, these two matters, while suggesting a legislative assumption that juries would consider specific intent prior to the question of insanity, are not in my view sufficient to find a legislative direction that the jury deliberate in any particular order. The most that can be said is that the proper working of s 653(1)(b) would be facilitated by the jury turning to questions of insanity after they had considered questions of specific intent, and that a direction which facilitates the operation of that section is to be preferred in the absence of any countervailing considerations.

139 As a practical matter, there are risks of injustice which may flow from a direction which in every case requires the jury to consider questions of insanity prior to questions of specific intent. The first of them is in relation to the shifting of the onus of proof. Should the jury first consider insanity but not be persuaded on the balance of probabilities, the accused should be acquitted for that reason, it will then turn to questions of specific intent which the Crown is required to disprove beyond reasonable doubt. While, no doubt, in the majority of cases, a jury will not have difficulty following a clear direction in relation to the shifting of the burden and change in the standard of proof, there is likely to be greater clarity and simplicity of direction if the jury is advised that it is only at the end of its deliberations, when other considerations have been exhausted, that in relation to the question of insanity the onus shifts to the accused.

Ward v The Queen [2000] WASCA 413

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Ward v The Queen [2000] WASCA 413 (20 December 2000)

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