Reid v Director of Public Prosecutions (Queensland) & Anor [2009] HCATrans 246 (2 October 2009)

Last Updated: 6 October 2009

[2009] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2008

B e t w e e n -

ALFRED AARON REID

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)

First Respondent

DIRECTOR OF MENTAL HEALTH

Second Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 11.45 AM

Copyright in the High Court of Australia

MR S.J. HAMLYN-HARRIS: May it please the Court, I appear on behalf of the applicant. (instructed by Callaghan Lawyers)

MR B.G. CAMPBELL: May it please the Court, I appear for the first respondent and the second respondent has entered a submitting appearance. (instructed by the Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: Your Honours, this application concerns the proper role of the assisting psychiatrist in the Mental Health Court of Queensland. Could I take the Court to page 24 of the application book to the judgment of his Honour Justice Keane with whom Justices White and Douglas agreed. In the applicant’s submission, the error in the decision of the Court of Appeal is found in his Honour’s judgment on that page and if I could refer your Honours firstly to paragraph [45] where his Honour says:

To the extent that the appellant’s complaint is that the language in which Dr Wood and Dr Lawrence expressed their advice may suggest that they saw themselves as performing a role in the actual deliberations of the Court, it may be accepted that the appellant is correct in pointing out that the assisting psychiatrist does not have such a role under the Act.

In paragraph [48], his Honour said that:

the substance of the advice tendered to the Court by Dr Wood and Dr Lawrence was not beyond the scope of s 389(1)(c)(i) of the Act.

In paragraph [46] his Honour described the substance of the advice as being:

directed to the significance of the evidence of Dr Kovacevic in that it was to the effect that that evidence could not reliably support the finding sought by the appellant.

And in paragraph [47], at the end of that paragraph, his Honour said that the appropriate advice under the legislation:

encompasses a critique of the “clinical evidence” given by others, and an evaluation of the extent to which that evidence tends to support one or other of the conclusions which the parties seek from the Court.

In my submission, it is apparent from the plain words of section 389 that the proper role and function of the assisting psychiatrists is to assist the judge who constitutes the court in understanding and appreciating the significance of evidence in a specialised area of knowledge, in this case in the area of psychiatry. The assisting psychiatrists have no decision-making function, but in the applicant’s submission they appropriated to themselves a role in the actual adjudication in this case. Nor do they have any function of giving evidence. They do not examine the person who is the subject of the reference to the court and, in my submission, they are not permitted, therefore, to express opinions in the same way that the expert witnesses are permitted to.

HAYNE J: But are they entitled to say that the opinion expressed by an examining psychiatrist does not take account of the effect of amphetamine intoxication?

MR HAMLYN-HARRIS: They would be, in my respectful submission, your Honour. They would be entitled to comment on that as part of their advice as to the significance of the clinical evidence.

HAYNE J: And are they entitled to go further and say because there is no consideration of the effect of amphetamine intoxication, the expression of opinion that the person lacked capacity at the relevant time should not be relied upon?

MR HAMLYN-HARRIS: In my submission, they are not, your Honour. In my submission, the guiding principle is that they do not have a decision-making role, an evidence-giving role or an advocacy role. So that if they expressed their opinions, or their advice I should say, in such a way where they assume that role, in my submission, they are going beyond the proper bounds of their role under the legislation.

In this particular case, in my submission, it was legitimate, for example, for Dr Lawrence in the course of her advice to advise the judge that heavy amphetamine use is likely to cause a psychotic condition. It would also have been legitimate, for example – if I can take your Honours to page 18 of the record book. Beginning on the previous page is a quotation from Dr Kovacevic in his report, which was the evidence before the Mental Health Court. If I can take your Honours to about line 50. His Honour said:

However, it is my opinion that intoxicating substances, in particular amphetamines did not play a significant role in determining [the applicant’s] overall mental state at the time of his alleged offending. This conclusion is based on the following line of reasoning –

Then if I can take your Honours to the next page, the dot point at about line 10, includes an observation by Dr Kovacevic that the applicant’s “psychotic symptoms persisted long after his admission” to a inpatient psychiatric unit “despite psychiatric treatment and complete abstinence from drugs”. So, your Honours, in my submission, it would have been perfectly appropriate for one of the assisting psychiatrists to advise the judge on the significance of that piece of clinical information. There are many other examples.

HAYNE J: What form of words can you identify as being appropriate to that task? That is quite a hard question to put to you, but the point I am troubled by is, at the end are we coming down to a debate about manner of expression or are we in the realm of substance?

MR HAMLYN-HARRIS: In my submission, we are in the realm of substance – and I will come back to the specific point that your Honour asked me – but we are in the realm of substance because the assisting psychiatrists expressed their advice in this case in the form of conclusions on the ultimate issues which we can see from the judgment of her Honour constituting the Mental Health Court was clearly influential in the decision that her Honour came to.

In terms of what the appropriate form would be of that sort of advice, in my submission, if one looks at that particular dot point on line 10 on page 18 of the record book, it would be appropriate for Dr Lawrence to advise the court that the persistence of psychotic symptoms after it can be taken that an intoxicating substance has been removed from the person’s system is an indication – and, of course, Dr Lawrence would give the advice, but it might be along the lines is an indication that the psychosis exists independently of the intoxication.

In some ways, that is probably a fairly obvious point, but I use it to illustrate what would be appropriately encompassed by what the section says, that is, that the assisting psychiatrists can assist the court by advising on the meaning and significance of clinical evidence. Other examples, your Honours, would be that, for example, an assisting psychiatrist could explain to the judge the way that schizophrenia can affect a person’s thinking or could explain to the judge the way that severe depression can affect a person’s perception of reality.

There are many examples, and, your Honours, in the cases that have been supplied to the Court of Re B, O’Kane and Donoghoe, it is possible to identify, in my submission, parts of advice given by assisting psychiatrists in those cases which could be regarded as permissible and other parts which, in my submission, are not permissible because they go into the adjudicatory role. In that regard, could I take your Honours to the decision of Re B [2007] QMHC 29 at page 7 of the decision. There are two paragraphs that I would wish to refer to. Paragraph [29] begins by a comment by the judge:

Both assisting psychiatrists tended to the view that the defendant was suffering from a Major Depressive Disorder at the relevant time, although they noted difficulties with that diagnosis, given the observations of the various doctors . . . and also the observations of Dr Roberts recorded in her clinical notes over an extended period –

Now, in my submission, that is an appropriate piece of advice about the significance of clinical evidence. But if one goes to paragraph [31] lower down on that page, the presiding judge in that case, her Honour Justice Philippides, said:

As to the question of deprivation of the capacity for control . . . both assisting psychiatrists favoured the view of Dr Sundin over that of Drs Curtis and Hogan.

So it is a case there where they have, in my submission, impermissibly expressed an opinion on the issue of unsoundness of mind. The particular reason why it is of substance is that when expressed in that way, it goes well beyond what the words of the section permit, but also it has the effect of influencing, or potentially influencing, the outcome, in my submission, in an impermissible way. In my submission, the reason that this application raises a question of law of public importance is that if the assisting psychiatrists exert an unauthorised influence over the decision-making process as the applicant contends that they did in the present case, then that has the effect of interfering with the independence of the judiciary because it exposes the judge determining the matter to an impermissible influence.

In my submission, it also raises a question of the interests of the administration of justice. As I have mentioned in my written summary of argument, the Mental Health Court in Queensland exercises quite a substantial jurisdiction in terms of the number of cases that come before it in which it may be called upon to effectively determine the outcome of criminal proceedings.

KIEFEL J: It was sufficient for her Honour’s purposes that intoxication could not be excluded, that it played a part, is that right, under the Act?

MR HAMLYN-HARRIS: That is right, your Honour, yes. In the mental state which deprives of the capacity in question.

KIEFEL J: And that was the direct evidence of Dr Lawrence, was it not? Dr Lawrence’s evidence was not dependent just upon a view of unsoundness of mind which had been given by Dr Kovacevic. Dr Lawrence said directly that intoxication was involved.

MR HAMLYN-HARRIS: Yes, that is right. Dr Lawrence expressed an opinion which was contrary to that expressed by Dr Kovacevic. What Dr Lawrence says in the first part of that passage on page 19 of the record book was that she was not convinced by Dr Kovacevic’s report that intoxication, in effect, did not play a part, and went on to say at the bottom of that page that she would have thought:

there was considerable evidence to indicate that intoxication was playing a part, bearing in mind that amphetamine – heavy amphetamine use is likely to cause a psychotic condition –

The comment that she was not convinced by Dr Kovacevic’s report and her conclusion at the top of page 20 of the application book that she would have thought that intoxication was contributing to an extent in this man, those observations, in my submission, are entering into the role of the decision-maker.

KIEFEL J: It is a clinical opinion, is it not?

MR HAMLYN-HARRIS: It is a clinical opinion but it is expressed in terms of a conclusion of an issue, perhaps not to the same extent as Dr Wood’s advice did. Dr Wood’s advice was really expressed more explicitly in terms of the issue of unsoundness of mind, where he said at about line 10 on page 19 that he had given previous advice:

that it would be very difficult to put forward a case supporting unsoundness of mind unless [the applicant] recovered from his amnesia.

In the next paragraph he says there are two issues where the applicant significantly failed to meet the current test for unsoundness. He said in the next paragraph, amongst other things:

we are prohibited from a finding of unsoundness of mind if an intoxication contributed to any extent to the deprivation.

Then in the paragraph at about line 35 he said:

I am unable to advise your Honour that . . . it is safe to make a finding of unsoundness of mind.

KIEFEL J: But, of course, her Honour did not need to act upon that and draw that ultimate conclusion if, as she expressed herself to be, she was satisfied plainly enough on Dr Lawrence’s evidence that intoxication was involved.

MR HAMLYN-HARRIS: Well, I suppose that would be correct, with respect, your Honour, if it could be said that her Honour did not rely to any extent, that is, it did not rely at all on Dr Wood’s advice. But, in my submission, that is not apparent from her Honour’s judgment which is set out on page 20 of the judgment of the Court of Appeal where her Honour says at about line 35:

There are two matters which the assisting psychiatrists have identified as being problematical.

The other matter that I wanted to deal with finally, your Honours, is the submission, by implication at least, from my learned friend that Dr Kovacevic’s opinion was unsustainable. In my submission, that is not shown by the record to be the case. His opinion was sufficiently sustainable for all parties before the Mental Health Court, including the Director of Public Prosecutions, to submit to the court that it should in fact be accepted. If I can take your Honours to page 46 of the record book to my learned friend’s submissions, he says at line 25 this:

Although Dr Kovacevic in the end favoured the view that the applicant was probably deprived of the capacity to understand that he ought not do the act, he accepted that this was “an almost impossible task” –

That, in fact, is not what Dr Kovacevic said. What Dr Kovacevic actually said is summarised by her Honour in a passage which appears on page 20 of the record book from about line 42 down to about line 55. Your Honours, it might be suggested by the way in which those opinions of Dr Kovacevic were set out in her Honour’s judgment that, in effect, Dr Kovacevic had contradicted himself, but, in fact, if I could quote from his actual report which was the evidence – and I have spoken to Mr Campbell, he has no objection to my doing this – he expressed the opinion in this way. He said:

Reaching an opinion on his capacities is very difficult due to the defendant’s complete amnesia for the relevant event. In the absence of defendant’s account of his motivations, beliefs and thinking processes, establishing individual’s exact mental state at the time of committing the act is an almost impossible task. However, it is my opinion that Mr Reid was probably deprived of the capacity to understand that he ought not to do the act and that a defence of unsoundness of mind can be supported.

HAYNE J: Mr Hamlyn-Harris, we have come to the end of your time.

MR HAMLYN-HARRIS: I am sorry, your Honour, I misunderstood the beeper. Thank you, your Honour.

HAYNE J: No. Is there some further point that you need to make?

MR HAMLYN-HARRIS: The only other point I would make, your Honour, is that, in my submission, Dr Kovacevic presented a carefully reasoned report in which he did deal very specifically with the issue of intoxication and the relevant passages are contained in the judgment of the Court of Appeal. Thank you, your Honours.

HAYNE J: Thank you. We will not trouble you, Mr Campbell.

The Mental Health Act 2000 (Qld) establishes the Mental Health Court to determine, among other things, whether a person accused of crime was of unsound mind at the time of the alleged offence. The court is constituted by a judge. In exercising its jurisdiction, section 382(2) provides that:

the court must be assisted by 2 assisting psychiatrists.

One of the functions of an assisting psychiatrist is identified in section 389(1)(c)(i) as being to:

assist the court by advising it—

(i) on the meaning and significance of clinical evidence –

The assisting psychiatrists in this case expressed the opinion that the failure to consider the effect of intoxication as a result of the injection of amphetamines was important in considering the weight to be given to an opinion of an examining psychiatrist that the applicant was of unsound mind at the relevant time. Those views were expressed unequivocally, but neither the manner of expression nor the subject of the view went beyond advice to the court on the significance of clinical evidence that had been given.

There is no reason to doubt the correctness of the conclusions reached by the Court of Appeal of Queensland. Special leave to appeal is accordingly refused.

AT 12.08 PM THE MATTER WAS CONCLUDED