Willgoss v The Queen

This was an application for special leave to appeal from an order of the Full Court of the Supreme Court of Victoria sitting as a court of criminal appeal. The order of the Supreme Court refused an application of Walter William Lewis Willgoss for leave to appeal against a conviction for murder.

Willgoss was convicted before O'Bryan J. of having on 2nd May 1959 murdered one Ivor Lesleigh Gillett. It is from the order refusing to give him leave to appeal from that conviction that he sought special leave to appeal to this Court. We refused his application but we thought in view of the argument that we should state our reasons in writing.

The prisoner relied upon a defence of insanity and the questions upon which his application turned arise out of that defence. It is necessary to give only the briefest account of the crime itself. It appears that Gillett was a man aged about seventy-two years who lived alone in Corio near the Geelong Road. He owned a utility truck and had a little money in the house. Among the things in his house was a .22 rifle, and some cartridges. From the circumstantial evidence and a statement the prisoner made to the police it would appear that the prisoner had come to the house on Saturday morning believing that Gillett had departed for the time being. The prisoner says that on the previous day he had come and had asked for food and that Gillett had angrily ordered him away. On the Saturday morning the prisoner entered the house looking, according to his own account, for food and for money. Gillett came back to the house while the prisoner was in the kitchen. The latter took up the rifle and shot Gillett through the head three times. Finding he was dead, he dragged the body to an underground tank, placed it in the water and put the lid over the tank. He made some attempt to remove the traces of the crime and then went off with the deceased's truck, taking some money and some articles which he stole from the house.

The prisoner is a man not much over thirty years of age and he and a woman with whom he was living and her two children had been about Geelong for a week or more, having driven there in a motor vehicle that broke down and left them stranded. Having obtained the deceased's truck he drove off with the woman and children into New South Wales. There he was arrested and confessed that he was responsible for the homicide.

At his trial he made a statement from the dock, the general tendency of which was to deny any conscious commission of the crime and to claim that for a long time he had known that he was mentally unsound. He gave some episodes of his career to show that it was so. Putting aside what he himself said, it does appear that his record was that of an abnormal person. He seems to have joined the Navy in 1946. Two years later a consulting psychiatrist reported that he should be discharged as a psychopathic personality. The report described him as "of unkempt appearance, an unhappy expression and close bitten finger nails". A report made by another authority two years later confirmed this diagnosis. Eighteen months later he seems to have been admitted to the Brisbane Hospital and put down as a psychopath. Extensive extracts from the history chart of that hospital were put in evidence. Finally there was a record of the same hospital of September 1953 concerning the treatment of the same patient for a gunshot wound which at first he said was self inflicted, although he afterwards denied it.

For the defence a psychiatrist was called (Dr. Sinclair) and for the Crown another psychiatrist was called (Dr. Fordyce). Both agreed that the prisoner's condition was one of gross psychopathy. Both expressed the same view, although of course not in identical terms, about one characteristic of the psychopath. Two extracts from the evidence of Dr. Sinclair and one from the evidence of Dr. Fordyce will make clear what that is. At one point Dr. Sinclair said: "When an individual undertakes a certain act, a so called normal individual, he is guided in his behaviour by what effect this act will have on other people and to some extent himself." The witness regarded that capacity as wanting in the case of a gross psychopath. At an earlier point he had said that the defect in a psychopath is his (in)ability to feel what he is doing, having the proper feeling both towards himself and towards the objects of his actions. This he described as, in a wider sense, a mental defect. Dr. Fordyce said that a psychopath is a person who has first of all a gross lack of self control and secondly a gross lack or diminution of emotional feeling which really involves gross diminution of conscience. Dr. Fordyce said that psychopathy is a mental disorder.

It seems evident even from the very brief account of the case given above that, whatever disease or disorder of the mind it might be thought proper to attribute to the prisoner, it would not be easy to conclude that he laboured under such a defect of reason from that cause as not to know the nature and quality of the act he was doing. That refers to the physical character of the act, in this case a capacity to know or understand the significance of the act of killing and of the shooting by which it was done. The weight of the defence of insanity was wisely placed by counsel for the prisoner upon the second branch of the well known formula defining the elements in a plea of insanity to a charge of crime. What was urged was that through disease or disorder of the mind the prisoner when he shot Gillett had not a capacity to know that he was doing what was wrong. His psychopathic condition as defined by the two psychiatrists was relied upon as showing that he could not "know" that the act he did was wrong because, so it was said, to make up knowledge of right and wrong the capacity to appreciate or "feel" the effect of his actions upon others and perhaps himself must exist in some degree and this, according to the psychiatrists, was deficient in a gross psychopath. Dr. Sinclair clearly distinguished between what in his terminology is the intellectual process which contributes to knowing, that is to say the application of intelligence, and what he called the appropriate feeling about an act. Without the latter he would say that the man was incapable of knowing that what he was doing was wrong. It is upon some such view of what amounts to knowledge of wrongness that the grounds of this application ultimately rested. Dr. Sinclair was asked to suppose that a gross psychopath did an act which the law and ordinary people would regard as very wrong and to say whether such a man would be capable of knowing that it was wrong. The witness answered: "He would be capable of understanding, assessing intellectually what he was doing was wrong. I believe he would not have the appropriate feeling to have a full appreciation of knowing what he was doing was wrong." In his charge to the jury O'Bryan J. did not draw the distinction between the two ingredients of knowledge of wrong put forward by Dr. Sinclair. His Honour gave a very full and clear exposition of the elements involved in a plea of insanity to a criminal charge. When he came to what amounted to knowledge of the wrongness of the act the learned judge went beyond what the facts of the case seem really to have demanded. For his Honour said: "Now if he could not really reason about that matter with a moderate degree of composure it may be said he could not know that what he was doing was wrong." Such a direction well may be called for in cases where the acts which but for insanity would form the crime charged are committed in a state of frenzy, uncontrolled emotion or suspended reason, the product of mental disease or disorder. No doubt O'Bryan J. took the words from R. v. Porter [1] and perhaps Sodeman v. The King [2] and Stapleton v. The Queen [3] . In Porter's Case [4] the discussion of the facts of the case is not included in the report, but the point of the prisoner's defence was that in a condition of uncontrolled emotionalism characteristic of a nervous breakdown to which many factors had contributed he attempted to poison himself and his child succeeding only in the case of the latter. In Sodeman's Case [5] it is unnecessary to say that the whole point was the possibility of his sexual frenzy accounting for the homicide and being attributed to mental disease. In Stapleton's Case [6] it was perhaps not so much a case of frenzied condition but of a fixed state of unreason although perhaps temporary. In the case before us the alleged incapacity of the prisoner to comprehend the wrongness of the act seems to have depended on other considerations than a capacity to reason about the matter with a moderate degree of sense and composure. But if O'Bryan J. went further in this respect than the facts of the case demanded, the tendency of it was all in the prisoner's favour.

1. (1933) 55 C.L.R. 182, at pp. 189, 190. 2. (1936) 55 C.L.R. 192, at p. 215. 3. (1952) 86 C.L.R. 358, at p. 367. 4. (1933) 55 C.L.R. 182. 5. (1936) 55 C.L.R. 192. 6. (1952) 86 C.L.R. 358.

The complaint however on behalf of the prisoner is that his Honour did not direct the jury that a mere intellectual apprehension on the prisoner's part of the wrongness of the act would not or might not amount to knowledge unless it was accompanied by some sufficient appreciation of, or feeling about, the effect of his act upon other people; perhaps some moral appreciation. The law provides no foundation for such a complaint. It is enough to say that it is an attempt to refine upon what amounts to knowledge of the wrongness of the act which is not countenanced by the law. The explanation made by O'Bryan J. of what amounts to the wrongness of the act was as adequate and as clear as can be desired for the purpose of submitting to a jury the issue as the law defines it.

His Honour did not go into details of the evidence and explain to the jury the application of what he had said to the circumstances proved. The fact that he did not do so was made the subject of a further objection to the summing-up. The objection was not entirely independent of the contention that the jury should have been told that knowledge of the wrongness of the act involved the two aspects upon which Dr. Sinclair dwelt. For it was urged that the jury should have been told how the distinction operated upon the facts proved in relation to the mental condition of the prisoner. But the objection extended further and applied independently of that contention. It may be said generally that in cases of insanity the necessity is especially great of explaining the bearing of the evidence upon the abstract definitions which the jury are given. But it must be remembered that the present is relatively a simple case. The material upon which the jury was to judge consisted only in what was known of the history of the prisoner, in the circumstances of the crime and in the opinions of the psychiatrists. His Honour in fact read to the jury the material passages in the evidence of both Dr. Sinclair and Dr. Fordyce. These passages as it happens included the discussions of the element of feeling, if it may be so called; "correcting feeling" was the term used at one point by Dr. Sinclair. When the summing up is read in connexion with the facts disclosed by the evidence it is impossible to suppose that the jury was not given an adequate opportunity of grasping the significance of the issues and the application of the tests of insanity to the facts.

It was for these reasons that we formed the opinion that there was no foundation for the complaint that the defence of insanity had not been both adequately and correctly put to the jury.

As to the remaining points made during the argument it is enough to say that they could not form grounds for granting special leave to appeal.