Potts v The Queen [2013] HCATrans 141 (7 June 2013)

Last Updated: 12 June 2013

[2013] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S20 of 2013

B e t w e e n -

MALCOLM ROBERT POTTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 11.39 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MR I.S. McLACHLAN, for the applicant. (instructed by Peter Baker Solicitor)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour. Your Honours, the applicant seeks an extension of time in which to - - -

FRENCH CJ: Is that opposed?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR DHANJI: Thank you, your Honour. Your Honours, in this matter it was determined that the jury deciding the applicant’s liability for murder was entitled to hear that the applicant was responsible for a previous killing.

FRENCH CJ: This came through the evidence, inter alia, of the treating psychiatrist, Dr Kavanagh, I think, was it not?

MR DHANJI: That is correct, your Honour. Now, three important questions arise as a result of that determination, in our submission: firstly, an important question as to the evidence that is relevant where the partial defence of substantial impairment is relied upon in answer to a charge of murder; secondly, the obligation of a trial judge to exclude evidence where the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused, and your Honours will apprehend from the submissions that there has been a division within – or a divergence with the authorities in the Court of Criminal Appeal in relation to that, and we say further that it raises an important question in relation to the operation of the proviso.

FRENCH CJ: The proviso was applied hypothetically in this case though, was it not?

MR DHANJI: It was applied hypothetically, that is so, but in the event that we make good our complaints, it is a matter that we would need to deal with and so it would arise in that way. If I can begin with something of it by way of introduction, the applicant’s submission is that the evidence was inadmissible and the applicant further stresses that - - -

FRENCH CJ: That is for want of relevance to the issues under 23A, is that right?

MR DHANJI: That is so. Can I say something first, and it may seem trite, but it perhaps underscores the importance of the evidence in this matter. It is to take your Honours to the decision of this Court in Attwood v The Queen (1960) 102 CLR 359. It is in the applicant’s book of authorities and the particular passage is at page 14 of our book. If your Honours look to the last paragraph in the joint reasons of the Court on page 14, what their Honours said was this:

“Bad character” may be regarded as the contrary of good character. But as a separate and independent fact or matter it can be proved on a criminal trial only in answer to evidence adduced of the accused’s good character.

That is the general rule that applies.

FRENCH CJ: The qualification being “as a separate and independent fact or matter”.

MR DHANJI: Yes, but what is important in the context of this matter is what their Honours go on to say:

It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle.

Their Honours quote:

“The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety nine” - - -

KIEFEL J: But this evidence was admitted, was it not, as part of the background upon the treating psychiatrist had reported and her evidence depended, so we are in the realm, are we not, of whether or not the trial judge should have exercised a discretion, as you have earlier submitted, to exclude it - - -

MR DHANJI: Yes.

KIEFEL J: - - - because it is used for that purpose.....strong enough?

MR DHANJI: Your Honour, can I perhaps just take up your Honour’s question in this way? There are two distinct aspects to your Honour’s question. Your Honour referred to background but your Honour then went on to say - - -

KIEFEL J: Well, it is his history, was it not, that the psychiatrist was referring to?

MR DHANJI: Yes, that is right, but it is a different thing to go on to say that it was a part of the reasoning process of the psychiatrist’s, and nowhere in the judgment of the Court of Criminal Appeal is that distinction isolated or the question actually answered. So it is no answer to say, “Well, we have background - courts in criminal matters are constantly dealing with background evidence and its relevance or the like”, but nowhere in the reasons of the Court of Criminal Appeal is it said – and, indeed, nowhere in the respondent’s argument is it said that the evidence of the prior killing was a foundation or a necessary part of the process of reasoning for the - - -

KIEFEL J: But that is how it was discussed at the trial between counsel and the trial judge, was it not?

MR DHANJI: There was some discussion - - -

KIEFEL J: It was more or less put as a fait accompli that it would have to go in as relevant to her evidence and then it was discussed whether or not it should be said that the substantial impairment defence which applied in relation to the earlier killing should be mentioned. Is it not the case that defence counsel agreed implicitly to that course, or at least did not strongly object to it?

MR DHANJI: Again, I am sorry to keep dividing your Honour’s questions, but the first part I would take issue that it was accepted as a fait accompli. What was accepted was that there would be some aspect of the history discussed.

KIEFEL J: Defence counsel wanted to limit it and then went on to say, well, if evidence of the earlier killing goes in he, I think the expression was, warmed to the idea that as long as substantial impairment defence was mentioned and manslaughter resulted, that would balance it. Indeed, it might be seen to be something that the jury might take into account in favour.

MR DHANJI: Well, that was put by the trial judge that it might be seen as a positive and that was something that was taken up by the Court of Criminal Appeal in the reasons of Justice - - -

KIEFEL J: What I am really getting to is, where is the objection from defence counsel?

MR DHANJI: Your Honour, the Court of Criminal Appeal decided the matter on the basis that, whilst defence counsel objected, the objection was not sustained, and we have not taken issue with that factual finding, that is, the simple factual finding that there was no objection. That takes one into the realm of miscarriage of justice or alternatively - - -

KIEFEL J: Can there be a miscarriage if there is that forensic choice?

MR DHANJI: Well, one has to analyse the forensic choice and, as we say in our written submissions, to simply say, as his Honour Justice Johnson did, that there was a forensic choice made and defence counsel in his subjective view saw an advantage does not answer the question as to what that advantage was and when one actually undertakes the objective analysis it is difficult to find the advantage because the reality was - - -

KIEFEL J: The possibility of substantial impairment. That was specifically mentioned to the jury, was it not?

MR DHANJI: The possibility at this trial of substantial impairment, yes. The defence of substantial impairment was relied upon at this trial, but the difficulty is that what the jury were told – and perhaps it comes out most starkly in the evidence of Dr Kavanagh at application book 135 during the answer at about line 22:

And so we knew that for both of those reasons he was a very high risk. In the past Mr Potts had committed offences, which did seem to be related to his mental illness, but he had also committed offences which did not seem to be related to his mental illness.

So all you have is that there is a history of behaviour that might be criminal subject to his responsibility. As soon as one says, “Well, on some occasions it was related to mental illness and on some occasions it was not”, when one then adds to that, “Well, on one occasion he killed somebody and received the benefit of substantial impairment” it is impossible to draw any logical connection between what happened on that occasion and what happened on this occasion.

In a sense, this draws us into what we say is the central question that arises in this appeal because the reasons of the Court of Criminal Appeal were given by his Honour Justice Johnson. His Honour Justice Johnson, if I can take your Honours to the core part of his Honour’s reasoning at application book 145, what his Honour does after reaching the conclusion that any objection was not maintained, his Honour then reviews the authorities of this Court in relation to misconduct of counsel, TKWJ and those like authorities. His Honour at 76 on page 145 says:

This was an unusual trial and the approach of defence counsel did not involve sustained opposition to the admission of this evidence. Rather, as I have said, the approach of defence counsel involved an acceptance that the better course was to not press the objection.

So what his Honour is focusing on there is the subjective view of defence counsel. What we say is necessary is to go on and determine whether that was a rational view because, as we have pointed out in the written submissions, it is the objective view that is relevant. Was it, viewed objectively, capable of explanation on the basis that it might achieve some forensic advantage?

FRENCH CJ: It might be a very fine call, might it not, as to whether the evidence of the previous offence, as it were, bolsters the proposition that this man suffered a long-term substantial impairment?

MR DHANJI: It could not, with respect, your Honour, for this reason: there was no issue at this trial that this man had chronic schizophrenia and there was no issue at this trial that he had a lengthy involvement, that he had had involuntary admissions, that he was under medication, that he was receiving a - - -

FRENCH CJ: There was a question whether he had a substantial impairment for the purposes of section 23A.

MR DHANJI: That is so, but when one comes to determine that question, given that he had been so ill as to be involuntarily detained on occasions and then when we have the evidence of Dr Kavanagh that I took your Honours to a moment ago that sometimes his behaviour is explicable by mental illness and sometimes it is not, then to put into the mix, well, on one occasion he killed somebody and that was a mental illness occasion, it adds nothing as a matter of logic to whether one can draw the inference that on this occasion it was a mental illness problem. It is simply not a possible logical step.

FRENCH CJ: It is put against you at 3.3 in the respondent’s submissions that:

At the start of the trial, the psychiatric evidence was that the applicant’s capacity was not substantially impaired –

Then there was something of a shift in one of the psychiatrists.

MR DHANJI: What occurred was that the applicant gave evidence and in the course of his evidence he referred to having heard voices.

KIEFEL J: One of the psychiatrists then altered his evidence to raise the possibility of substantial impairment.

MR DHANJI: Dr Allnutt raised the possibility of substantial impairment and Dr Westmore was against. In terms of shortcutting an analysis of the merits of the various doctors, I might perhaps just point out to your Honours that on sentence, the sentencing judge, having heard this evidence, indicated a preference for the evidence of Dr Allnutt. In other words, whilst the matter proceeded in an unusual way and it was raised late in the trial, there was an adequate explanation and, indeed, his Honour accepted the evidence of the applicant that he did in fact hear this voice.

So the basis upon which the applicant sought to put substantial impairment was not skimpy or not lacking in substance; it was in fact preferred by the sentencing judge. His Honour was of course bound by the jury’s verdict in terms of how he ultimately determined the applicant’s culpability. If I can just go on from paragraph 76 to paragraph 77, the point I just made was that his Honour in 76 is referring only to the subjective view of defence counsel, but his Honour goes on and says this:

In any event, I observe that it is reasonable to contend that evidence of the Appellant’s prior homicide was relevant to the jury’s broad function under s.23A(1)(b) –

That, in our respectful submission, is at the heart of where the problem lies. We say two things. Firstly, it would appear from his Honour’s view in relation to the breadth of operation of this provision that his Honour did not need to go on and determine anything beyond the subjective view of trial counsel. In other words, his Honour’s approach to the construction of the section was what led to his Honour not needing to go beyond the subjective view of trial counsel into any objective analysis of the probative value of the evidence as against its prejudice.

Then his Honour goes on and indicates at 78 that he had referred previously to the value judgment or the moral assessment, and that links in with paragraph 77, that it is somehow a broad assessment of the person’s moral culpability and somehow construing the section in that way, it is relevant to take into account a whole range of things including, as I say, this prior homicide on a previous occasion in circumstances where there was no analysis.

I should perhaps stress this, there was no analysis of comparing the condition that pertained when he killed his father as against the condition that pertained when he killed the deceased in this matter, which really is just another way of saying what I have said, that is, there was no logical basis upon which one could reason from the earlier finding of substantial impairment to this finding of substantial impairment.

When one comes to any sort of balancing question, and to answer your Honour the Chief Justice’s question as to whether it might be finely balanced, what was ignored in the course of the directions and in the course of the reasons of the Court of Criminal Appeal was that the consequence of the finding of substantial impairment was also apparent to the jury and what the jury learnt was that this man, having killed somebody, received a sentence of seven years.

Now, a jury, hearing that this person has killed again, knowing that they received a sentence of seven years in 2000 which enabled him to be released in 2007, finished his parole, which in turn meant that he was at large, not under any parole supervision in 2008 – in other words, it was the length of the sentence on that earlier matter which allowed him to be at large to perform this crime.

FRENCH CJ: Well, that is a matter which goes to prejudice for the purposes of section 137, is it not?

MR DHANJI: Yes.

FRENCH CJ: The judge did give some warnings to the jury, did he not?

MR DHANJI: Well, the judge gave warnings in relation to tendency and we make the point that that cannot alleviate the problem because it was not a tendency problem we were talking about here because he had admitted the killing on both occasions. So the tendency warning did nothing to alleviate the prejudice. If I can go on, at paragraph 79 what his Honour says is:

In this case, it was accept that the whole history of the Appellant had been taken into account by the three psychiatrists –

But as I stated earlier, nowhere is it suggested that the two psychiatrists who gave their opinion – because it was only Drs Allnutt and Westmore – nowhere is it suggested that the earlier finding was a matter that was determinative or a process in their reasoning enabling them to given that opinion. Indeed, as a matter of pure logic, what would be relevant would be the actions and not the outcome, so it would be quite unnecessary to know that the person had died as opposed to there being an act of violence. But quite apart from that, as I say, it was not necessary for the doctors’ opinions.

The other doctor, Dr Kavanagh, never actually gave an opinion as to substantial impairment and if I can take your Honours back – indeed, she was the one where it was stressed that it was the whole history. If I can take your Honours back to application book 135 very briefly, at the very top of the page on page 135 we see a reference to a question to Dr Kavanagh and Dr Kavanagh agreeing that her report was written “on the basis of the whole history”. Well, that is her report but, as I say, she never actually gave any opinion because we see an extract further down the page at about line 30 in paragraph 59 – in fact, I will start at about line 35, the next question:

“Q. From a medical point of view and not from a legal point of view what does that mean?

That is substantial impairment:

A. My understanding of it from a medical point of view – and I don’t know the legal definition – is that Mr Potts was so affected by his mental illness that he was out of touch –

In other words, one gained nothing from Dr Kavanagh and it was Dr Kavanagh where reference was made to the whole history. Drs Allnutt and Westmore are both very experienced forensic psychiatrists who appear regularly in the courts of this State and would be well used to giving opinions that are limited to admissible material but, as I say, nowhere has it been suggested that the opinions given by those doctors was dependent on the prior homicide. At 79 his Honour goes on to say:

The fact that the Appellant had acted violently towards persons was relevant.

His Honour goes on to say – and this is about as close as it comes to an objective analysis:

There was a great deal to be said for the view that it was preferable for the jury to know the true circumstances of these violent episodes, rather than be left to speculate –

But the problem with that of course is that no amount of speculation could be worse than what they heard in relation to this. It would have been a very different thing indeed to simply hear that there had been some episodes of violence; some were influenced by mental illness, some were not. The jury would then have to simply make their determination as to whether on the evidence as it related to this particular time the applicant was mentally unwell to the extent that he was substantially impaired.

The focus of the evidence in relation to this particular time was clear, and that was the evidence in relation to the fact that he had less than a therapeutic dose of his medication in his bloodstream, the evidence that he was behaving bizarrely in the time leading up to this, and the evidence that when he was arrested on this he was seen by a psychiatrist who thought he was in a state of psychosis. So you had plenty of evidence surrounding the actual event, and to simply know that on some other occasions he may or may not act in accordance with a mental illness and on one of those occasions he killed somebody, could hardly be probative of anything.

His Honour then goes on to talk about the compromise that was reached and at the top of page 146 his Honour refers to the evidence – or his Honour says the evidence:

was seen to be capable of operating favourably to the Appellant.

We again have simply a focus on the subjective view of trial counsel. Then his Honour goes on in the next sentence to say -

The fact that the Appellant had a prior homicide (with an associated finding of substantial impairment) was not a circumstance extraneous to the jury’s broad assessment –

So we are back to the concept that evidence of this type is admissible for this purpose. That, we say, again explains why his Honour did not need to go beyond the subjective view.

FRENCH CJ: Well, that really covers both 23A and 137, does it not?

MR DHANJI: It does.

FRENCH CJ: Thank you, Mr Dhanji. We need not trouble you, Mr Pickering.

The applicant seeks special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales dismissing his appeal against a conviction for murder. The applicant, who admitted the killing, raised at trial the defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW) which authorises a jury in such a case to return a verdict of guilty of manslaughter rather than murder. Evidence of a prior conviction for manslaughter arising out of the killing of his father, in which s 23A had been successfully invoked, was admitted at the applicant’s trial through a treating psychiatrist. It was admitted as being relevant to the applicant’s history of schizophrenia and without formal objection from defence counsel.

Special leave is sought on the question of the admissibility of the prior offence, having regard to its relevance to the issue of substantial impairment under s 23A of the Crimes Act and to its prejudicial effect for the purposes of s 137 of the Evidence Act 1995 (NSW). The question whether there was a substantial impairment for the purposes of s 23A of the Crimes Act was a live question. The admission of the evidence of the prior offence was subject to evaluative considerations. The evidence was, on its face, relevant to the existence of the impairment. While the question of whether it should have been admitted may be debated, the application is, in our view, not attended with sufficient prospects of success to warrant the grant of special leave. The application of the proviso, which is also raised, having been decided on a hypothetical basis, does not provide a ground for the grant of special leave. Special leave will be refused.

Thank you.

AT 12.03 PM THE MATTER WAS CONCLUDED