Cram: lay, = rare a Guilty of Tid v Jvazets Darceceriw.s To Ww peau caste cup d/h ie at No. G9 of 41978 ctl' *;) Sather., Connzs A\ Decorber Canberra, 2hahr et : Campy aoe CAPT OL Def poooar et awa lb ek ye wee nee wee ir, i M22 PP GIL IN THR PIMORAL cones OF OUTTA ) AUSUPALTIN CAPITL VERTOY ) DUST IICT PPGTSTRY ; : CRUERAL, DTVISION ON ADF of the ORDER JUDGPS PAG ORD UE: EMATHERS, Colo DATE OT OR "1 DECEMELK 1 WHERE BETIS : CANBCRRA THE COURT CADERS DEAT: 1. The appeal be allowed. No. Et nr mM 2. Suis y 73 jatralian Capital Tery 2. 'The verdict of guslty oF and coaviciion senicnce thereon by che Suppress Cou Capitel Terrotory be Guyane c euGc in be poewateied vo thet Sep Yeast on 3. Perdan, Uy Cetera eta et ow ote o1agor ef the crigl gulye the apreke ce] = = ru Li r OL ay 9 of 1978 'om the fupreme Cou re Ito 7 ae AMES TAM ST TAYLGR Responaen 'or murder and ade wie Australian thereof the matter pio gubyeci ot ta" = 4. qv. "ino ain custody. IN THR PEDELARAL COURT OF AUSTPALTAM CAPTT TL DISTRICT REGISTRY GENERAL DIVISTON ey OF AUSTRALIA No. 9 of 1978 ON_APPPAL from the Supreme Court of the Auscralzan Capital 'errivory BETVE EN: JAMS EMT TYLOR Appe llant AND: Tre Cuevil Smithers, Connor and Franki JJ. REASOUS FOR. JUDIE PP SMITEPRS J.: In April. 1978 James Einest Taylor was tried in the Supreme Court of the Australian Copital Territory on the charge that on or about 4 October 1977 ke murcered a young gir Greta Penticoss. He pleaded not guilty and reased the defence of insanity. The evidence for the Crorm included ovidence of police officers who had conducted intervievs with the accused shortly aftor the death of Greta Penticoss and who deposed io statements made to them by the accused. In substance th-se statements weve to the effect that the eccused remeirbered the events of the night and morning of 3 and 4 Ociober auite well and his own part therein. In short he said that he had been at apartyin Canterra where he had drunk a considera To nance ble amount of alccho] and that he had left the party at about 5.00 a.n. and proceeded to the Gowrie Hostel where he went into a numbe of rooms occupied by sleeping people seeking, a young girl, He said that in one room he did find a young girl, whom he awakened, According to the evidence he told that girl that she was required by a doctor in the adjoining room and was remuirced to get up and take cffher night clothes end come with him, He said that she did this, that they went vo the adjouniny room that he was at a loss to know what to say to bor Par Gat i ey Hho oe re hes, Trecd Ler.self and serearca and cen ivay doer corridor ane he ran up ind dovn a couple of flights of stairs. According to the evide r nee he entered another room on the, sixth floor, found thercin a young girl asleep, awaken d her and told her that her friend dovnstairs wanted to see her. He said that she put on her dressing gcwn and slippers and followed him dam the stairs to the Yifth floor where she tried to get back, struggled with him, broke away, ran out onto a balcony viucre he picked her up and she struceled with him again and fell forward out of his grip and over the rail. He said that he then gew the events heppening the some us in a dieam he had had a few days before, that he descended the stairs, sew her lying on the ground, dragyed ner on to the nearby gress, performed sore sexual ects upon her, then put his hands around her neck and pushed her dowm hard, hit her on the neck and head end then stabbed her with his knife, He said he"just kept Plunging down, gust like in my dreams," Medical evidence called by the Crown indicated that the probable cause of death was strangulacion rather tna the effects of the fall or the stab wounds. Medical evider.ce was also called, specifically, as this Court was told, to exclude the possibility that the acts of the accused were committed in a state of automatism. However, the various questions asked by the prosecution on this subject were in a form which was appropriate 1n relation to a possible defence of insanity. Thus Dr, Lea'rence gave eviderce to the cffect that the accused at the tine of *he relevent acte waa canwle of forming tas TuLeMC LM LO Cary cub eon. 2 eb endo ue Scorned such on _ anvention, thal he wes consc "cus of Wiad he wan doang cond cnat the witness fave o evicence that he was surf @ ring from a form of psychosis, that at the relevant time of the commission of the relevant acts "the accused was not totally lest in a fantasy world but was aware of the reality "as at really wes' and thet he, Dr, Lawrence, felt that tis accusod at the time he committed tne relevant acts knew ihat what he was doing was wrong. In his defence the accused made an unsvorn staten ne v1 peo --aee 2 HLS GOCCP EE tau of these @reems he was the leader of a good tribe whic woulc hunt down evil tribes and kill them with knives and slicks ana on occasion bring some of the evil tribe back and tic then to stakes. In these dreams the women of the good tribes would throw garbage on them and spit on them and jater the good tribe would have sex with the prisoners and thes kill tho .It oas, 2 said really horrid because they were evil lceoking pecplie, He spoke of other types of fantasies which he had su'fcred, tle said thet om the morning after the evonces at the Govrie Fostel he thought they vere all a dream until he sav nis picture in the paper. He said that while he was at Govrie Hostel he was in fact going through the dream and that his statement te Mr. Dau (a police witness) was truc. On his behalf evidence was given by the eccusedts mother and sister. The former spoke of his birlh wuich wes a diflyeul urlcch orn. Sheps ee 6 ho ow angety q he had suifered, of an inerdent an cvbacth he bed saivshed are matchbox toys and the daurtying of his pants dur ng his fire two years with the scouts. His sister spoke of trance Live episodes in which he was obliv.iaus te his svusxroundings, incidents when ho yvoule talk to hineelf cr to an invisible friend and seemed not to want to be in the world of reclity. She spoke of hu. walking around like a shost, trving to do things like the choracters in the bocks he mad. He believed in reincarnatzron, We would not go round with other boys ot his ovm age ond was oksessed with babies, She reccuuted that he had confidca to her that ne folt even ybody hated him, woie out to get ham and that he carried a knife, She ca'd sho On tried to reason with him, that she had aedviecc him to see a4 priest but he would not. She caid ho had told her about dreams 1n which everyone was after him Jekaing ham avcy or J 82 Y crucifyiny him end he 861d he vould so out and hunt someon? Lccausc had to hunt beck in self defence, Other witnesces alse eove evidence ci having observed pecwser the accused in various siluations. In sddéition medic. ay behaviour o f carrying cut an evidence was called, Dr. Danta spcke o ones electro-oncephaloczren (E.R.G.) on the accused. Te els carried cul a lengthy interview with the accused in which tke £ accusec spoke of bis dreams, various episodes in which part dw.as covpletely lost to his memory and of of what hed transpire ery o re de [o} limbs w a his nightrirec., Certain jerky movements of thes if) S > HB a 2) to Dr, Dania wiusea wire typical of tem»vorel lohe opilen ib = Fs = typical of wnat condition verre ep1sed.s in which the sccused Lac the feelin oof brevuur teea Peecrack oo current cvpenszence ar By Tn oe Pe. Tort ta ee Ge oe bred Bol net dePanwtave of temp, ata dee cralerey. Novwever, wath we othe: evid.nce before him, Dr. Dentn medce what he celled a presuspciy dazcresis of nioks.bl. Uiperal lobe epilepsy. He regarded the condition es a disease.of the mind. Of the medicei evidence, that of tvo highly quaZified psychiatrizts vas directed spscificelly to tho issues as to whether at the time of the perfornance of the acts which caused death, the accused was capable of reasoning with @ moderate derree of composure, as to whether or not the performance of those acts wan right or vrong accerding vo tae normally accepted standards, and aif not whether that Jack of 3 + S not a capacity was caused by a disease of the mind. Ice wz contended, by or on behalf of the accused that Le did not hiro the nature and quality of the relevant acts. Dr. Bartholomew had made himself Samiliar with the transcript of the committal preceedangs, with tho results of the £.F.C. and with the matvers spoxen of by accused's mother end sister. He had three interviews with tne accused, each of three hours or more, two of those in Jenvary and cone in 4pril 1978. In his opinion the accused suffered from a condition of schizophrenia which was a discase of the as oO mind, one of the more scrious mental diseases which exist, said that hallucinations and delusions end odd poerceptucl anonalies, paranoze and markea disorders cf thought, fit into general concentions of schizophrenia, It was his opinion thee at the time of the offence it wae very probable that tho accucea could not rv sen thovt ri¢-ht and rovestir oc mecep hs Gores at posure, Ti. Gianic: e Thad. ell fe cucra dazu uob we che re deve ue surfer @hn cpaleprice fie bur lac there was a yeblr recogni. +4 ship between lLemporal lobe cpalepsy and a form of schizophrcals that he considered that the accused's schizophrenia or schizopni nic like state of mind would be much' mor laixely to account for his behaviour then any manifestation of temporal lobe epilepsy. He stated that he did not know wnat tho accused's mental state in terms of reasoning would be at any particular moment from the party to the time of going to ah ce) © x tes re] fee ce i a) rh a a B o 62, oO a its treatment after the events at Gowrie Hostel. Me said that an these psychoses things are very fluctusnt and tho canceaty to reusen fluctuates and that all he could cay as that on the bulanve of probabilities the accused was gropsly disturbed et the relevant tine. It would be a reasonatle and proner infereace from all that Dr, Bartholomey saia thet it was his cpinion, on a clear balance of probebilities, that at the timo of the commission by tho accused of the relevant acts of kajlaing the girl:the accused did not have the capacity to regcon with a moderate degree of composure ag to the rightness or vrongncss of his conduct and vhat that lack of capecity .a» Cue to a disease of the mind. How ian Dr. Lucas gave evidence that he hed interviewed t accused's mother and sister and had two antervie.'s with the accused the first on 27 October 1977 of one to one and a half be Iz Q c Fy "S and the latter on 7 April 1078 for tnree hours. He was acqueinted vith tho E.E.G. results anu evidence supnorting a Giagnosis cf cemporel lobe cpeaers roy. He stated Lhat the diagra- ne oar tse 1 es ef the offence a @_feert of r Cconins. We sco1d that the aceured' in-nuding, the police record of iunteretew end the histor, recounted to him shoved that he knew the nature and evalitry of iis acts, but his mental state wes such Thay he was not able to reason about the wrongness of the acts with a reasonable desiree of sense end composure, Dr. Lucas said thet he had no doubt thet cth- mnme. was in an abnormal mental state at the time and this produccd « dufeot ef reason aud he wes unable to reason about the wronrress of his =7 acts. In forring this cpinion the doctor took nete of the dreamc. When asked about the signiticunce of one statcnent by the + accused in an intervieay with one of the police witnesses thut fron tame to % time he wernt in ar and oufF of his drenmm, Dr, Tucrs ¢asid in effect that the mentul state of the accused was én abnormal mental state so uncortion that jt wes very @ifricult to attempt vo describe or undzrstand, -ut that if a person so affected in moving about doing physical activities he has to take account of aspects of ordinary reality such as openirgs doors end be aware of certain thangs tut that does not mean that he is "ully aware of the significance of everything, but the delusional or hallucinatory experience hus precedence so far as the person is concerned in controljJing some bchaviour. After nearing the evidence for the accused Dr, Lawrence was x - called. He was askcd: Was the accused@ duving the events wnacy jn- volved Greta Penticozs on the torning of 4 October 1977 suflerings a from any form of psychosis? He replied: "Well in view of the evades: I have now keard 1 would concluds tnat trcere wae a state of psychosis a in optration et that tive alent the Llirys ct the oneroid riciuire that wis drawn ty Dr. Luce 3," mewedy'the cream sclicoshrenia Satec boa, ns wou aa Qo Co authsoten oF Th. acts aaanoe Greta Peniecsa wT. cceneeu mtd sucn a@ *encal disorder or @iccased iantelligeres thol ne was disabled from snowing, they were wrong acts te corm. is the sence that crdinery reago able men undersiand right from wrong.and Whether he vas disabled from . considering wilh some d-cree cf composure and re¢son what he was. doing and 1ts wrongness, Dr. Lawrence said:- "f find it hard to be certain about that on Lae night, bul T feel that he was avace beforchend tnsat ihas "ind of behavicur .ould be wrong and céerlaarly rerreted iz aftervaras, but I slse feel that, during tue nighv or the events, thet there was tremendous and there wis drearzinization jn his moms : *naich would have meade act cxtremely difficult think, tc differentiate end wnat lhe ¢ c the effect of tne urcem anc being in the Aad out of that state, as he dev orelel, could agifficult for him to reach such a4 canelu In the light of this evidence 1t wes perhaps not % surprising that the learncd prosecutor should heve in the jury that the Crown had to concede that there was elren:z evidence en the auestion of insanity in this cagc, ner thet th learned judge should have approved the admiss2oa by the presecutor that the expert evidence was all one wey. This last point perhaps reflected the fact that not orly the exverc vite nesses called by tne accused bul also Nr, Lewrence, vho wes a4 expert witness called by the Croi'n,expressed an opinior favourable to the defence on the critical guestion with regerd to the critical times. Tt was in this peneral content that the learnea gudye mouts of the crane of nurder and QD explained to the gury the el @irected them that an the first instance they snould aecide wine bers mr bl er Se oe OO i : : sutic&3ed thea cech vIowontowes Cottballp cd to theapr catse : boyond reascnable doubt. He pointed out that the evidence besrurs them dealt in detail wath those elements, end seid that he vie apart from the question of ansenaity, the gury would have no a difficulty in being satisfied thet the clercnts of mu der had been establisned beyond reasoreble doubt. He pointed out to the gury that if they were so satisficd they must turn to the question of insanity. He dirceted the gury that the orus of proof of insanity wor on the accused and ne distinguishes be tvecn the burden on the Cro.n to »rove the elemencs cf murder a. beyond reasonable doubt from that on t.e tccused in relation lo insanity which was to prove insenity on the bal ancc of probabilities, The learned tral judge pointed out that the jury vere not concerned yath the conGi.ion of tne accused's mind at auy tire except at the tiirc of the comrission of the acts in vucscicn, He said:- "It as certainly relevart to wor vhcet his mind was like at an varlier time, and veel his rind was like at the leter tiny, ana th: Ceocrore 2fVve told you # lot @bour 1t but tae eratical tire 15 the time of the comission of tho act? cnurged, The full wording ot tne verdict, nol curlty on the ground of insanity, 18 nov guzlty on of lusaniey at Tle bane, eo. the commission acts charged, So lmtt 1s tuc fii. remoinbor tha. the critie 1 autstien Por you vaen you Giscussing Thle question i8, .Os8 he ingane witnin € @ q D the meanon=s of thet wore vast I aa going to explain to you,ac the time of the ceormis.szon of the acts cherged, Keep your aticntiron on chat." The learned gudz2 Ecfaned anganity in terms to which no objectizg 35 t leon end recnted out to the gury that in the case before thes lhere w2s no qu stioa tnac ule accused knew wie nature endo co > TL et as -! wd Too. Ute Lone coy at OF tm natty .cos wore wner because of a diseese, diserdur or disturbance of the mand ihe accused was incapable of knowing that those ucts were wrong in the relevant sense. He instructed the gury that 1f because of the disease of the mind the accused vas not sepable at the time of the commission of the acts charged of epplyang to himsclf, with a moderate degree of sense and composurc, reasonzble considcration of what was right and wrong then in the legal sense he was insane. His Hencur then séid:- "Let me make clear to you one wager princ_ovle about expert evidence. 'The expert 18 thr culy oeracn ibe, in a court cf law, as allowed to give eviderce of his opinion, Other wrtuestes sive eviderce of tect. The expert gives evidence of nis opinion, tut it is never- theless a cugsvion wich ain the lest res.ort has to be decided by the yury. You ere free to mare u oe 7 own Mind, the cnocrt evidence 2s there to assist you are net bound to adont it. Niu, havnag saw of course, 1t must also be siié thet thas exper is, as councel feirly edritvedc, all on: way. There le no evidence pelore you which posnats in the othe € at all... But the exnvert psychaatriste called ~ a@cfence are both auite firm; rery say Lt balence of probubiirtie I have no €outt each of sufferins frou 2 cis.2se of tie ard, Ioem no that there vas really ~uch distsneczon betveern Bartholomes' oaid end Doctor Lucas said. Doctor i cas. perhaps, put 1% "ore om the bisac of ef then ccuizoyay nie or tempor:] lot enilepsy, or schizophrenia and ter lobe epilepsy corbinea, 'TF em not sure whic.! Doctor Lucas said. 'I would like vurly «as a ercis 17 psychiairy, IT would reourre a loner e of treatment and investigation to make up my mind yh av was.' But in eithe: case, he says, it wes a disease of the mnind causlne a defect of reasoning ch prevenled Lam from reasoning witn a rodcrete desre2 ov sense and composure "at the ai or the ects whevavr what he wes doing was crrone, clor Parlholorws. pet st in sligrtly Q@ifferent words, but an my und2istanusny aa vhe Patter not really a substantially diriacrent bone had & diseas2? of ir- mind of 7 3ci2 tnd, that if to cay, @nbobituns wy ctovs poco bling schizophrenia and -t the sanz .ime 9ssociaved "with that Vas iG 4 ar You wii) rence thal both coueers card thet cacy did not dhark ult) baru tees = un Doe lt orem or clear that the vatel acts, the crucial ects, were not Gone during en episode of a fit cil epilepsy - clearly they were not Lecause he had a clcar recollection of whal he vas doing. He undoerstosd 20 ull, Tut Chat uses not alter the docror's opinion thal the state or tenpcral ve schivophbreniiorr d lobe epilepsy asscciaved wa dt t meant that 2 3 se of applying reacoy~abla concidcration to himse acts were wrons. s Bs Ye vau 2 c ...The matter is for you to decide. I repeat thet your duty 1s to be the sole yueses of Lact and a question of fact; whether or noL om the balance of probvahilities he came witatn t} tefaination as insawiry as I heave tried to erplain 10 to you. You of the expert evidence. You are not bouni Loa have your otr recollection of ail the facts. oa Wid] therefore ao your best to apolv all che evidence of Tact which has boen piven to you and apply to 1t the expert opiniop which you have heard and make ycur own Juigrent accordingly." tow eos During the ccurse of thear delibcrations the gury siubwit cod to the judge a guestion in the following terms:- "We sre cousiderinz the insanity vr tne accused. to kno whether tras cefence tnnlies if he wes 1 (1) at the tume of the stranzuicvicn orly. or (2 the whole process of the crime, that is from thi search of tho rooms until he left the scene of tne neither please 2nstruct." —ws =) > After discussion wita counsél his Konmour answered the qu2¢tion as follovs:- "The ansver to the quoztion is this, I neist the reference to vhe strangutation -s ooviceug) the assump.ionm that you ere considertng taut 2s the ence of death, Cr course you are nor Voand co , but by the way you heve frarcd tos quest: a c you are. 'he same vould exvly to wna oD c to be the cause of deach. "The arc OO% < > ate the defence is nov CGualty on the growid of u ev ovi- time of tho « 4e 2 oS2on & Lal is the time i vere somotbtot a aes casera the death, su mind at any otner michct te relevant in that 2b m ght lead you te gs alot the tame at the tire of she commissio cus which caused the a@cath that that 1s tne vital time. The JUCAU ON of insanity 16 relevant to the tave when the acus were commitced which caused the death." This question and ans.er points up tle probability that the gury directed thezr minds 10 a psrticular .ime es critical in tne events Ce them, This. factor renders the irannor in which the wiry me u 2 ve +} weap n Jate sn 4 o . with the expert ovidencs as critical Lecause the experis Gld curceag that the effect on the nied af tan ue Fae fee Fa Cee G 1) ' Padoad nt. Db ea tea lo aye ta ae oa Sic, Sar ws : the evidentiary quality of thers: Tp hte ose Te the oh be of uy t ' a - of Lhe accused with reference to the actval tine of the k j notwithstanding cuch fluctuations constituled the vical element in 2} accuescd'ts case. Phe Ihave Fo93 phoule it be that the evi understood by tne gury the strer respect to the assuc of insanity The jury returned a verdict of guilty aud the accused \ convicted. An eppeal vos brought grounds or which 1t 18 only nece following:- That the verdict was perve evidence, That the in air Uli Cc c to favous vO Cce evidence oz the proba the relevent times, they doubt reasonable hat the a relevant times and the gury the presumption tnat at the was sane, That the trial gudge was in gury to return a verdict of mental 21lncss. a A further ground of appeal was the hearing of the appeal, to the gury, having regard to the nature evidence were iuncdevuzte. ft re ocev egy i wu, ' appeal. whan is ure +d her auc submission thet the iunscructions dentlary 'we as bein ad quelity of that evidence was rot sth of the case for the accused with Me would nol be apnarent. Was to the Court on a number of scary to refer to the error in refusing ™ oe rh ccus could not rely upon es relevant tim the accused error in not dirscting the not guilty on the ground of ded by leave during the course of namely, that the trial gudsz's iustructisi.s end quality of the mediccl Port Sma 2 Uae Veet cet ls rarwourts wm substance. tu a gid not adccuately put ro (ne jury the case of the accused on tho assue of ansanity in respect of which the onus lay upen hin, in particuler, (hut the judge did not bring to the minds of the gury what evidence there was before them bn that issue and on which the accused rolzed co carry the onus rostiang uvon him. The contention is that although the Jearncd gudge told the jury in substance that the medical evidence was all one way and there was no evadince before the gury which pointed in the other direction at all, and that the psychiatrists called for the defence vere both quite firm in saying that it was their opiazon that on a clear balance of probabilities the accused wes sutf ring from a disease of the mind, and thal that disease prevented hin from reasoning with «a moderate degree of sense ama comvosure, at the time of the e n [on fe ate oS relevant acts, as to waether or not whet he w was wrong, the terms used by the learned gudre to describe tne nevure and Significance of the medical evidence were such es to risl. +d the jury as to the evidentiery quality of the medical opinions expressed end the significance to be given to them if they vere 4 le bent ,1iinesses It regarded as opinions of hones* end cory was the duty of the jury to direct theszr attontiron to the sninion evidence with a view to understanding if and testing its acceptability from use standpoint of veracity and conpetcnes, And it was necessary for the gury to understand that opinions on any matter of fact wnach they accepcoed as Lrue cnd sound were evidence of that fact ard andcecd on 9 navtter such as the state of rind et ote ee sr ors ortoeem A ae Shorcot Indecd an respect o Go ochampec Ga marder yiere che accused has pleaded diminanhid rowponsibility Lhere is aulhorisy for the proposition that where the medical evidence 1s unchallenged and there is ne evidence to the contrary a verdict of murder cannot stand end a verdict of manslaughtcr must b substituted, See PR. v. Mothecon £1958_7 1 W.L.P. 474, cf, also Rv. Bathir.t £19687 2 0.B. 99, And in Rew Dic! L 1966_/7 Gd. R. 301 where an answer to a charge of murder the accused picaded a state of abnormality of mind vhich 1f proved would entitle h2zm to be convicted of mweanslaughter only pursuant to s. 504A cf the Qucenslané Crimin.] Code it ivas saia by Gibbs J, at p.305:- "However, 2 rp namely, the PO er hy L ~ mality ot mar t: Lo 2t was at lee rE 4 tl 2b substantially iamaired the caorveity of the uccusea to control his 'cuirens. The gury may repecr uoewsireus medical evadence tuat an accused person v : responsiboiaty af vhere is ccher evi ; verdict. (S23, for overs bo, bec 1 W.L.R, 680). Here, novever, cic the acticus oF the «accused betore, at of the shovting were quice irretieneal, end the ewiduii- 13 to his vords and conduct does not conilict wath rcdiceal evidence," It is clear therefore that in a case such as rhe pressonu the jury should understand thet the medical opinions are ceotrali to the case for the accused, that they inty be suffrerent of themselves to prove es a fact wuer the state of mind of the accused was at the critical timc, and that, .nere they are aceepted as honest cond cunpevent ul.d ore uncnilleonped, thon usL ot te a My ey "Foye suv ge Ds ne form thertr oplnscys ve net t2bhivsfactors tr one Lili shed of unre contradicted by other acceptable evidcner, or the gury ave net persuaded that stens of reasoning wn the fersation of those opinions were soundly teken,ot there 1s some other factor hefore gury should not reject or ignore those cpinions. Compare Rv. Matusevich & Tormson £1976_7 V.R. 470 at p.475 where theeeusen of "a strong and completely sane motive Cor the killing", aud premedi- L tation, were held to explain the gury's refusal to act upon uncontra- dicted psychiatric evidence which was all one way. cf. also vv. Tobin £1978 7 N.Z.L.R. 423. But it is vital that the gury should understand that the opinions of the qualified experts are evidence of the facts the existence of which tho experts assert by way of opinion and are to be given such probet.:ve weight as 1s appropriate to their validity as assessed by the Jury. The contention is that the directions of the learned yudse in this case were in a form likely to have induced a wrong impression in these respects, namely that the jury may well have concluded thet the question of sanity was to be dccided by them on the "facts", wathout reference to the opinions save so far as they might resort to them for assistance in th. assess~ If so of course lhe situation would be that the gury would not properly have understood the cvidentiary basis of the case for the accused on the iscue of insanity. The only real evidentiary basis of that case was that constituted by the medical opinions considered as evidence of the critical facts, namely the existence of the disease of the mand and its effect on the capacity of the eccuscd to reuson with a moderito dogrce of sense ane corosurs 2c de tal omrphtnece op ocvesmsuescs of hag ecticnc, wady fo oa ghd ES On bhalr cf tas saceuvce . fir set Le dirteind te Wie serives cof statements made to the gury relating to the nature and signiti- cance of the medical opinions. The anherent validity of eGech of such statements in a suitable context te not chalienrda bul th lu total impact of the serics 1n tne uctual context in which they appears 15 saizd to create or to te calcula.cd to create an erroneous iispression. There is 1n the first anstance the reference to the somewhat sharp distinction between evidence of fact and opinion evidcnce. As to the latter the gury were tuld that they were not bound by the opinions and in substence that they were free to decidc the relevant matters for themse] ves notwithstanding these opinions and that the opinions were there for their assistance. 'lhere js much to be said for the view that the jury may well have gained the impression that there was a vast difference in quality between evidence of fact and oninions given by a witness. In various respects there 1s, but iv is Gifficult to think that the statement thet the gury were not bound by the opinions, in a context of contrast between evidence of fact < a oc an I and evidence of opinion, was not calculated to rask the reali evid lary quality of the opinions. In the only valid sense in*hich tac Jury were not bound by the evidence of opinion at vould be luge -s by evidence - Valid to cay to the gury that they were not vound eithe a fact or by opinion evidence. In ¥y op oO ithec case they werc not .<oO bowud, Unless the eviceace vas of sufficient persuasive cuclizty to guetilzy i acceptance, But once accepted the nonwbindins charactcristic of the y evidence would cease. The difficulty caused by the form of the ¢irecc- ion is that the gury might not have realised that with respect wv Ths opinions as well as the cvidence of "fects" their task was Lo Cetermine whether they snmould be scctpied, and sf so thet then they would be bindins, 1n che sewne that evadenece which is accepted must boo ectre urea. Pre ter ot Ul: gury wan Lo age 1 a@sfeot the po teue. uve Tle Gert lute bles o1 seckb ud opinicn, aS to opinzor by sscessing the credibility, compe beuce "sy and soundness thercos,as to evidence of fact by assessing the credibility and povers and oppontunity of cbservation of each witness. If a fact opined 1s 1n conflict with an event said to be observed, then the assessed balance of persuasive weight will be decisive. "So far as tne principle or the reagon of the thing 1£ concerned the law takes no special acccunt of a Lepi- cal difference between 'opinion! testimony and 'act! testimony" Wigmore on Evidence (3r2 cd.) VoL7 per.1919. So far as probative vilue a2 is concerned, however, there aie differences because cupert opinion cvidenve is cf{ten regarded as of little persuasive effect because experts are hnown to b: over enthusiastic and may be partisan for one reason or another. Each case must be judged onaits om circumstances. However, in any case of murder where sanity 1S in igeue and the onus of establist.ing critical facts is woon the accusa'd wo pry that at the relevant time he suffered from a discase of the mind and that by reason of that fact he did not know in the relevance sense that his acts ,hich brought a the death of the victi~ were wrong, it mey vell be, that for placticn] pursposes, the only evidence cf those facts 1s to be found in the op2znien of the expert witness. In substance that was the position in tnis case. On the state of the accused's mind at the relcvant time there was some cvidence other than thet of the erninions of tne exnertes, Thus police officers told of the simterents of the accused toa thea anc hich loo oreferye et wl Glee os trode nee ona be wt lonely withdraym oxiutence urd ressegc*lic,. Thooe waa evidt woe of the mother of the eccuscd vho told of his breach birth and ari.ies oF has b heerpour and cpileodes sucecocns of sporadic pccu a lonely and disturb:d personality. There was olher evideuce of similar behavioural cpisocesé'; Tut eloneside this evidence was the fact that the accuscd had an cxcecllcnt memory of all the relevant events comprising and surrounding lhe kzllanz of the victim, Also tuere was the general acknowlodgnent by the accused teat at all material times he snew what ke was dusng. The accused in nis siatemoits to the »colice cné his unsworn statement cid not expressly say that at the relevant time ne ue ay 2] ta ce) Gid not kuow that what he was doing was wrong, There vac al evidence that tne accused suifered from a tyre of temporal lobe epilepsy. But it is ayperent tha. in the ubsence of ihe opinicn evicence thet there was a schivrophrenic condzvior +s nich alone, or in conjunction with the tempceral Lobe epilepsy constituted a disease of the mind, and that at bthe relevens time that disease rendered the accused incepabie of reesonine with a moderate dearce of covpocure as to the vightnecs on wrongness of what he was doing, 1t would hardly have teen L possible to dircct the gury that there vas eviderce op which they might find insanity at the critical time or thit if so circcted c gury woulc Lave found that tecause of & dissase of the mind the accused did not know that what he doing at the relevsrt time .as wrong. Accordingly, 1f the case for the accused was to be properly dealt wath by the gury 1t was wocessary that ticy should understend that the real task before them was to determine vhether tho opinions ef the pevekretriets were worthy - accuptanc- and thes 1f tacyocere then to act on them os cogent EVLA 7 SP yp ey woe ls, Where the fact in 1ssuc 2s tue stat end céyccity of mind and the only evidence thereo® as eypert op2rien, the gury shoule understend that where the competence and nonesty of th? expert cre accepted his skill un the area Should be respected and snculd only be rejected for good reasons, LEut if the gury cre under the impression th.t on the relevant issue they must lool at the "fects" given in evidence other than by the experts es the source or primacy source of proof of ansanity, aad that they are not bound by the opiasons and ure free to make up their oun mind contrary to those opinions, thei 1t is hard to think that ; vi they would be performing their task according to lew. And it appears to ~e thac there was .sreat danger that & of the jury would have bee. that referred to above, 1f so that would expitin the verdict which it 1s reasonedle to wiink was quile unexpecicd. It 1s quite likely that Becaure of the possibility that the Jury would gust treat the medicel evidence as binding .2itrout it beirg tested by them the learned gudge thour}t 1t 1asc to u emphasise to the gury that they were not Lound by that evicuncs, In that direction, what was meant,vas ne doubt, that the gury iw r- not bound to accept 1t.But the contrast betveen fact and opinion, the instructionsthat they were not bound by the opinions, thet they were free to decide for themscives notwithstanding the opinions, and that the opinions were for their assistance, were in this particular context calculatcd to combine to create an errcascous impression in the rind of the guy 2s lo hey they should treac the medicel apinijons. Tn the roel). thoeotare Tow For cet dre core lasten ir at the acerus.dts ¢ pth. Co Ty Gabbe bom, the enpests ate establi: ted on lhe balonuce oF probabilivics lnav he suvfersd ui Gisease of the rind vath 1te relevent effect wmon his capecily v2 reason, at the ti levane tire, van nev adecrvately put to the vy. Under' this ground of appeal it was also vrged that the learned gudge having refrained from a direction in detail as to the content of the medical cvidauce the gury washt not have appreciated the significance tnencor ana in that sense the accused's cusc hed not been adequat-2y pur to the gury. As was said by the Ilngh Court (Dixon C.c., MeTierran, Fullesar, Iienzies and Wineeyer JJ.) an Mavzi_v. The Sucen (1969) 105 C.L.R. 659 stp. 653 when dealing with expert evicence 1n a case of iunganily:- a "However this miy be there sre many reasous why, vien w defence of insanity is streacly survorted by e:p-re evidence that en accused vas euTferine Fron a @iseasce or d.sovder or the ta- unitrustions to th: jury shevid anciud. an atu wt to ermlain not c.ivy ci. test which they mast ary' ' L1so the efMias of the expert evedence in worm tis rn. The CONSLGaTa Cons wilich tr 34h accept or regect the opirisns advanced," See also Halford v. Melbsurne Tran and O-nibvs Commerr/%603_7 V.L.R. 5004tp 522 and Alford ve Viors (193?) 65 C.L.2. 437 at was eo. in See also wv. Telisra / i970 7 VLR. 892; Pov Welker aac Prien £7984 V.R. 475 and generally R. ov. Welch a] Court cf Criminal Appeal of New South Wales (unroverted to. 68 of 1977 dated 21 October 1977). Lt was said by Merzies d. un Schulman ov, Deters [1961 7 A.B. 209% p215 that zt is the at, of the gudge ut a trial before a gury to relate the evidence to the issues not in a sense of recapitulating all the witsesces nev said but of bringing to their attention in a gereral way how th WL evidence that hes been given bore upon those issucse. As pointed sur in that same caso it is always a matter of gudamenc for the learned trial gucre as to hey fer he excrinec the evidence in relation to the issues. See also the remarks of Waneover J. in Jones v. Dunc) (7958) 197 CLLR. 298 at pp.215-215. But it ,oule act rotowy- - oad Vo Gb te Plea, that the yradre co rnravwides the guy ath vost vas ce Lled "=? Paxen J. (as be then was), "an adequat? opportunity of appreciating the seven .. of the pricones tn core", Sec Sad ron vy Th: Fire (1935) 55 C.L.R. 192 atp.219. It was put by c evidence wes long a laynen would have accepting that evid of the learnea gud Vv was generally fevou an the absence cf strength tight well not have been opp reciutled. opinion Chat there such an elucidaii it would inevitcbly have involved a discussion of aspeces of the medical evid.nee which u.cght have detracted fro the force so favourable to the accused.o7 the direction tnazt, the evidence all one way. In view of the order cf Mie Court that the: 1412 5 new trial it 1s undesirable to discuss this matter further. Ne application wes cede to the gudge fcr a further dire: tion élucidating the neture and content of the medical evidsee, It could well be thet counsel for the eccusedvere weli satisfied with the statements to the gury as to the general effect of the expert cvidcace and .ould Lot hive welcomed an elucidation along the lines discussed sbove, accordiagly 21t is my vicw that in respect of for relief has not As to the first canno. be supperted. at the aqua, vat ot of whe neeae Loti, cn a balance of pro aval &S a ounsel for the accused nd very cempuliceted and that a gury had diffreulty in understanding end cnce, in relation to the rable to the aco elucidation of cyrrtein aspects on rad Leen underlezen by this aspect of been made, force in this ad that although the content of that sed there was evidence a donzer that of it, its It 1s my contention. However, if he groundsof appeal ground of appesl, 2t 1s my opinion Jt 1s apparent fvosr the lor ne mage Paty a amd fu ethan un re Moose es ple Cea GG oeoby t bubilities Thet ab ie cratacs) cire the learncd judge case Tile t it THAT ke accused was insane they could not be said to have acied perversely. As to the second ground, it was contended by Ma. Norris th fu senior counsel for the accuse at by veason of the manner jn which gn the Crown conducted its case the preswraption of sanrty which 'ai, ht otherwise have beon applicable was ezcluded from the materials to be considcred by the Jury. The particular matter upon whicn Mr. Norris relied was that the Crown Jed from an expert medical witness evidence to the effect that the accus.d at the time of the rclevant acts cormitted by him was capable of tie dulention to carry out those acts and had formed such en intention, that he was conscious of what he was doing, tnat the witness had found no evidence to convince him thet the accused was suffering from a form of psychosis, that at tre tame Ot a7 @ » oO ° c LP)) @ Q xa of the commission of the relevant acts tt totally lost in a fantasy world but was aware of reality «5S it really was,and that the witness *clt that the accured av. the time he committed the relevant acts knew that what he was doing was wrong. Mr. Norris contended thet such evidence went directly to the issue of sanity and that by calling such direct cvidencc tne Crow effectively elected not to rely on the presumption of sanity. In the alternative he urged that by calling such evidence the Crown thereby "covered the field" of the accuscd's sanity. He contended that an these circumstances the learned gudee should nave directed the gury ral to the effect that the Croxn, Lavang introduced direct evidence oS on the issue cf sanity, carried the onvs of establishing all Chooedem ate ayo do win at a Pome ae Ua at sovhdn'e ss of momsry an@ the duse -ctaon of the aecurcd boy re J reasonable doubt, and Lhat in respect of such elements che issue wes to be decided by 1rerom née te the direct evidence before ther exclusive of eny presumption of sanity, and that unless they were satisficd on that direct svidaence that every such element including soundness of remorv and discretion of the accused at the relevant time had been established beyod onable doubt they sLould return a simple verdict of not 203108 Norris pointed out that on this besis the questiou whether the accusea satisfice the jury on the issue, provf of which rested on him,in relation to the question of insanity, in accordance with the i euch-cr Ralec, would or aight wt fs never arise. I am unable to accept this contcntion, Mr, Norris did not cupport it by reference to authority nor do i think 1t 1s supported by any principle. The evidence in cuestic so far as it went, did but reinforce the probative cffect of the presumption of sanity. There vould «ppear ie be no basis an euthority or reaso.2 for the epplicrison. 1n w.1s agspcee ef the law, of a notion that when the learned prosecutor ied the evidence in question he thereby in scme way excludca whe presumption of sanity whether by election or "cavering the field". The truth is that, subject to the defence of insanity the cnus of vhich is upon the accused, the elements of the erjme of murder have to be proved to the satisfuction of the ury bevond reasonably aoubt Ly a¢cferemee Fo the evadence ot J J J 2 in nS cn ae - ue ~ wit yoy 187 rr pe " a Oyen tT oe fn oh? ey Ae ere Maevtor Soa Peat wy oie Cau, See e.c. Tatts ve Dees Te, . '" ty However, when all the evadence.of any relevent ctarte of mind of the accused 1s before the yury iv may be that the gury may not be satisfied beyond reusonable coubt of the existence of one or more of the elements of the crime, for example, tho intent cf the accused or the Voluntariness cf nis acts. In such a case the evidence by refercace to which the doubt of the jury arises may cr may not disclose that, for instance, the absence of jntent or of voluntariness of the accused's conduct was due to a disease of the mind as a recult of which the accused either did not know the nature and quality of his acts or that his conduct was wrong. In that case the duty of the jury is to return a verdict of not miilty on the ground of insanity and clearly that would be an eccurate end logical verdict, Such a possible situation ves dealt with by Fox J. in R.v. Pantclic (1973) 1 A.C.T.R. 1. Tnat was a case in which the accused relied upon the defence of autoriatism and did not reise the defence of insanity. Hts Honour gave reasons explanatory of has Cirecticns to the gury by saying: "It seems to me both eminontl accordance with the Scacvute * not gurliy con the gEround ar I brovgnt in anv case were ¢ ais not guilsy ' because 07 nasensty. si posit.cn, there J + ' are caftis wu. which i2xicanli7 rz tho tests of the Een bling bules, decs n avoin.tterc suen as inten. Gad vosuw.baridescs soy tpn ownicn it Geos. Tiitre ere, or tori: 2tun Lens. an vurch A CYL 8 CL cor, ACO' UL ' " G ieaves wih of bac coe yicive cS cise, the "desonce!l of it: in the sense that 1t operate -Iinalory factor. : ¥ I lefl tne ravter to the geryeat4 this yeys 'If, an accore nce. with the darcetrou: To have piven you, you te are of tne view that he (the eceuced) 13 not pus] it will probably be becruse you arm t137 ied beyond reusonible doubt ther ne ied the anbcsntion lo kill or to inflicr .revous bowtly Farm, or because you are not satisfied that his act +68 @ voluntary onc, or youiry not be sutisfred of eLtner of thes matters, If the Crown filed vo satisfy you on one or boch of those matters, you should proceed to consi€er wie ther, at the time he st ruck tae Tetal blows, the accused was insace un "he relevent «unse, und af co, whother 71 was because or the "insanity tnac he was, 1n your view, not guilty." (1 A.C.T.R. avp.4) In R. v. Shard (1972) 56 Cr.App. R. .?€8 it was held thet an 11: ecasc of a man of noraal mental cupacity medical evie ince that at the tame of commission of the rclevant acts he had no sntention: to commit them vas inadrissable, In a note co that cese in Arc) re Criminal Plead:ng Pvideno> end Peactice (49th ed. 1976) po.£,.9-972 1447 (h) at is subaittcd:- Wthat this decisicn would apoly in all cases vhere there 1s no evierree of ins arty within the anoucers cr the Judjeain WNiusitents ¢ 12. wichout such cvyidence the presuvptitn of ganicy Caniol be Crepleced." Thus in this case the presumovion of sanity was at all times operative unless and until it wes displaced by evidence It is not normally appropriate for the Crown to introduce into the presentation of its case evidence of insanity or sanity. But in a case in which the defence of automatism 1s raised the boundariis Ectween the evidence neces sary for the purpose of meeting thet d f-ner and evidence of sanity moy not elvays be easy to maintain, Jy an the course of the Crents case Mh. Ulther crea wa cred: i, proertneles: the trreon s ae _ - 5 ' sow . oe > ud - "yt ~ Of prow, UL Peo, eet on, 20) yb ok TUSa on The operate. oof 4-- the presumpticon of sanaty and the puracn of proof of insanity remain unaffected. In this case the defence of autoustism was not raised, There wes accoldingly no necessity for the cvidunce that was called by the Crown on that P. n "" c oO some dufficulty may have been avoided at the trial if the >. And it may be thougnt that evidence called to exclude the possible defence of automatism had not been called. Bui the Crown was not to knoe thel automatism would not te raised by whe definec. Indecd fron vt Crown did know the possibility that the iccused might couten that at the critical timc he was in @ state of aulonatism wa areal one. Where the accused relies on ovictnee yhich may support such a case he carries ne burcen oF proving iv. Such evidence gocs to the issue of voluntariness of the accused's conduct proof of which 121°s upon tne Crown, The eviderice of automatism may throv doubt cn the evidence which, but for it, 'oulc have satisfied the ygury beyond reasonable doubt thal the accused's conduct vas voluntary. Accordimely if the Crom is to be allowed to c2ll rebutting evid-nce wnere a possible care of automatism arises in the defence 1t must be snown that the site vion that has arisen is excepticnal in that the emergence of a case of automatism cculd not reascnably have been fores¢en. One can contemplate many cases of automatism which could not have bees forescen by the Crown even using imaginauvive foresight. However the general ruie is stated by the mayoriaty of the Hish Court in Shar v. Tho SCuecn (1952) &5 CLLR. 365 at pp.279-780. "Clearly the principle as tnet the prosecutran "ust present ite coe. nom vt r Bayon - ~t aye nm ' ra ' ' . t 1 1 do mol fie 1 per. hs en Pa Oo have 1 li! no re i er yeooqs When the prigca rr 300,20 LO PLave Maou Cette ta ava may be allowed in reply. tue the prosorcuticn mey nou split its cese cuoany dosuc. T possesses a poem to chlo. Toa, to be celled, be te wane be og tiocea Ho Cols! accordirs Lo vule and Choyruse toch lins re-open ee Coo Cane unles . the elrcumsterces ale pert ' recpeLonal. See also R. ov. Abreno itech (1917) 7 Cr. 4yp. Re (1912) 8 Cr. fim. 2.72, 281-282, B, viscaulsy (.C. Imoaucter oma un rosea soe OV LCOnNee Cram noi la. "ve Si7, As to the remaiiaing grounds of apneal I refer observations abeve which disclere that an wy opinion J J not supportso0, However, buving repird to the sirencth of the to the iisy FLO case made urer the ground of appecl firs' discussed her in as my opinion ltlis Court should crdtr that Un cc * ti? aside, the there Le a retrial on the adanewent that peneing the actermination cf the relraal end oy byeet order of the trazl Judre the appellant reyiin an custeidy. - TVVAA TAS action be —!' 1t nou ooreee IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY . ) ) ) ) No. 9 of 1978 ) ) GLNERAL DIVISION ) ON APPEAL fron the Supreme Court of the Australian Capital Territory BETWEEN: JAMES ERNEST TAYLOR Appellant AND: THE QUEEN Respondent RVASONS FOR TUN MENT Connor and Tranka JJ. Yur 1978 This 1S an appeal by Jaaes Trnest Taxvlor against u it L conviction of murder. Tho indictment charged that on or about for 4 October 1977 the appellant did feloniovsiy and maliciously, -widcer Greta Penticoss. The evidence showed that the appellant was a soldier aged 18 years at the time of the alleged murder and that Greta Penticoss was a young school girl on «a visit to Canberra by a grou: of school children. The jury sere invited by the Crown to find that the accused strangled Greta Venticoss during the early hours of the morning of 4 October la77. .iere was evidence thut Ureta rmoereors Nod pen 'oad? rose de. re ' ' 1 oda} oa 1 4 ' I rc Senior counsel for fhe Crown in iadrecsin, the guryo on che question > of the defence of insanity did not press for a verdict of gnailty, but invited the jury to return e1ther a verdict of guilty or not guilty on the ground of insanity. The defendant made an unsworn statement and amongst the witnesses culled for the defence were . the appellant's mother and sister who gave evidence about his childhood and what misht be called his strange behaviour. The acting superintendent of the Belconnen Remand Ccontie and the chief custodian officer of thut Centre also gave evidence concerning the behaviour of the appellant at the Centre whilst awaiting trial. The Crown called various witnesses including two medical practitioners, one a specialist pathologist and the other a consultant p.ychrutiist. The defence also called three medical practitioners, a specialist neurosurgeon and two consultant psychiatrists, It seems that 1t was common ground at the trial that the substantial issue before the jury was whether or rot the apnelient was insane at the iclevant time. Dealing with the exosert mevicel evidence only to the extent that uc consider to be appromriate in view of the Jecision to whicn we have core, it as fate to suy trat 1t pointed very strongly to the appeilunt being insane in the .e:.l sense of not knowing that the acts alleged againet nim were wring. The grounds of appeal which sere presseu Caa ve Jisted conveniently as follows : 1. That the instructions to the jury, havun2a regard to the nature and quality of the medicul evidence, were inadequate, 2. That the verdict was perverse as heing apainst the evidence. 3. That the trial judge ias an error in refucing to direct the jurv that, the Crown having called evidence of the probable insanity of the accused at the relevant times, 3t mut be sotisfre" Cre a wetuteble Sout cheb tat vert do sae vase sto tne tole. ou 4. That the trial judge was in error in refusing to inform, or not informing, the jury of the consequences of returning a verdict of not guilty on the ground of mental illness, 5. That the trial judge was in ¢crior in not directing the jury to return a verdict of not guilty on the ground of mental 1llness. We now deal with these grounds in turn. Ground 1: That the instructions to the jury, having regard to the nature and quality of the wedical evidence, were inadequate. The learned trial judge's direction was, in effect, that although the medical evidence 111 pointed in one direction the jury was free to make up its own mind and was not bound te accept the medical evidence. H1s Honour said in his sumniny up : "You are free to make up your own mind, the expert evidence 1s there to assist you, you are not bound to adopt it. Now, having said that, of course, 1t must also be said that this expert evidence is, as counsel fairly acnitted, vil one way. There 1s no evidesce eetore vou v11ch points in the other direction at all". Somewhat later His Honour said : "You have the assistance of the expert evidence. You are not bound bs ait and you have your osn recollection of ell the facts, rou will therefore do your best to uepply all the evidence of fact which has been viven tu you and appnlv to it the expert opinion which vou have hearg and nake your own Judgment accordingly," The medica] evidence was founded, in general, upon examination of the accused and upon statcexnents made by him and, at least in two cases, upon statements made bv relatives of tne accusea. The wccused made a statement fron the dock in which his problemas wath diegms and his family history were enphisised. At no stage was any Mods oe. ett tate pa Gibb ate be ee hte date od tue ete. ded upon which tne sedietd evidence was be. No aeference vas mute to this aspect of the trial bh, the trial gudge. In R. v. Bathurst [1968} 2 Q.B. 99 the Court of Appeal was considering an appeal by a man convicted of murder who had sought to rely upon the evidence of two psychiatrists called by him to establish diminished responsibility. The appellant hadnot himself given sworn evidence and the trial judge commented upon this fact. The Court of Appeal substituted a conviction for manslaughter and said that as there was no real challenge to the appellant's truthfulness in giving information to the medical experts the trial judge's comnents about his failure to give evidence were unjustified. In our opinion the same type of reasoning should be applicd to the subject case. In the course of explaining to the jury how they should deal with the appellant's unsworn statement the learned trial judge said that one of the three choices which the appellant had was to "go into the witness box, be sworn, examined, be cross- examined" and that the other choices were to make an unsworn statement, as the appellant did, or to do nothing at all. The learned trial judge also explained te the jury that the appellant had the burden of proving, but only on the balance of probabilities, that he was insane at the time of the commission of the act charged. All this was unexceptioneblc as fai as 1t went. There may well have been reasons, which it 1s better not to explore in detail at this stage, why the jury, left to themselves, might not have been satisfied about the reliability of the material upon which the medical opinions were based. One such 1euson may have been the failure of the appellant to give evidence on oath on an issue on which he had the onus of proof. In these peculiar circumsténces it waS important that the lcarned trial yudge should himself remind the jury that the Crown had made no attack either by wav of cross- CASTGNATION or sub ssten erp une reliarilit, o1 the naterzai on which all three ps)chirutrists agreed tnat tne accused did not knew that what he was duing was wrong. The siynificance of the Crown's attitude as to this was underlined by the fact that a psychiatrist called by the Crown had taken a history from the accused which he gave in evidence in chief. "soe As we have pointed out the learned trial judge told the jury in his summing up that "... the expert evidence is there to assist you, you are not bound to adopt it". The authoritics make it clear that the jury is entitled to examine the nature and qualitv of the medical evidence and should do so in a broad and common sense way. It may, for example, examine the nature of the killing and the conduct of the accused and his history but the jury's verdict must be founded on the evidence. As we have said we tnink that if a new trial is ordered it is better not to deal with the evidence to any extent. It 1s clear however, thet in this trial there was no real challenge to the tiutnfulness of the appellant in answering questions and piviny information to the doctors. It is also clear that in this trial no medical evidence supported the view that Taylor was sane, there was very strong evidence that he did not know that what he did was wrong. Walton v. The Queen [1977] 3 W.L.R. 902, a judement of the Privy Council, illustrates the way medical evadence should be looked at. It 1s made clear that the basic duty of the jury 1s to fand a verdict according to the evidence. This 1s clear from the passages cited from R. v. Matheson [1958] 1 W.L.R. 474 and R. v. Bailey [1961] Crim. L.R. 248. In R. ve. lack [1966] Qd. R. 301 at pp. 305-306 Gibbs J, dealing with the question of the defence of diminished responsibility uncer $.5044 of the Criminal Code (Q.) said ""Hovever, iospite of difference = in detail, all Woodie al owt gatas ea yin yo Sd bod onto oan fren conelusiony, Naig),, tuat the econ sa wes Sultersng from an abnormaitty ct crnd, that thas e1ase from epLlepsy, and that rt wes at least probuble that at the time of the killings st substantialiy impaired the cupucitv of une accused to control his actions. The jury may reject unanimous medical evidence that an accused person was of diminished responsibility 1f there is other evidence to support therr verdict. (See, for example, Regina v. Ahmed Din (1962) 1 W.L.R. 680). Here, nowever, the evidence shoned that 'the' actions of the accused before, at, and after the time of the shooting were quite irrational, and the evidence as to hi» words and conduct does not conflict with iedical evidence. In those circumstunces, 1t secms to me that the case cones within the words used by the Court of Criminal Appeal in Regina v. Mathesen (1955) 1 W.L.R. 474, at p. 479 - 'Ir, then, there Is unchalicnged evidence that there 1s abnormality of mina and consequent substantcal impairment of aentr2l responsibijity, und no ract or circumstances appear that can displace or throw doubt on thet cvidence, it seems to the court that we ate hound to sey that a verdict of murder 1s unsupported oy the evidence, !" This passage +s a clear illustrati ci) noaf the inab reject unanimous medical evidence unless there is other evidence which can displace or thros doubt on that evidence. In our opinicn the medical evidence was not put to the jury by the trial judge 1a this way but it was invited to reject or accept that evidence as 1% wished witheut any explanation that 1t was only entitled to reject that evidence 1f there were other facts or circumstances which it accepted and thich were sufficient to cause 1t to reject the medice: evidence. Although we are satisfied that this ground has been eide out we have anxiously considered whether we should recsard it as a ground ror upholding the appeal. It 2s obvavus that this unedequucy which occurs in an otherwise wnexceptionable charge, did not present itself as a seiicus one to either counsel at the trial. At the cencluston of the sumuing up both counsel, in response to a specific invitation from the learned triad] julee, announced that there were at at no mutters to which either Wished to direct the learned trial gud attention "orev tt rebut O18 ad) vas yout ynceluded aa: t- , at OTLRINA. Notice OF appeud Lut was added vs Leave, aveparently as a result of certain coments fiom the court, during the hearing o¢ the appedl. ~ It has often been laid down that 1t 1s the duty of counsel for the accused to be present during the summing up and seck any redirection or further direction 'at its conclusion - sce, for examplc R. v. Croft (1933) S50 WN. (N.S.W.) 56. If some aspect of the summir up 3s made @ ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel] failed to object to 1t at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the triul itself there was nothing abeut the suming up calculated to lead to a miscarriage of justice - see generally R. v. Sorlic (1925) 42 W.N. (N.S.N.) 152, R. v. Caplin (19? SO WN. (N.S.WLj 289, Rev. Smyth (i950) 73 WN. (N.S.W.) 559, 2, 4: < c | v. Malas (1978) 21 A.L.R, 225 and Stirland vy. D.P.P. [1944} A.C. 315. The cases show, however, tnat where the appellate court is satisfied that a miscarriacse of justice occuired the appeal] will be allowed despite the failure of counsel to obdiect at the trial. Exampics of this, where the appellate court was satisfied that there had heen 2 miscarriage of justice because the jury may have considered the evidence on a wrong principle, are R. vy. Kalino.wski (19350) 39 S.R. (N.S.W.) 377 and R, v. Gaffney [1968] V.R. 427. We think it most unforturate that a matter sa easy to cure at the trial was net raiscd fer the first time until the heurine of the appeal. [Ut mav be that this was occasioned by the strengtn of the medical eviderce and the general] course of the trial. Because we think that in all the circumstances there may well have been a miscarriage of justice we have reluctantly come to the conclusion that despite the sigpificant failure to object at the trial and the failure to aunclude the ground in the Notice of Appeal, the appeal en thie Tar poe ames Soule 5 , ' ' . - : + 2 rary rote ete tt 'ho WF Etee yy, re UNL Ground 2° Lhat tae yerdiet was wrioroo as deine arotnst the a Le er nee ee Vil. HH. aS TS Le ee ee evidence. We do not consider that a jury, properly instructed, would necessarily have been obliged to bring in a verdict of not guilty on the ground of insanity upon, the evidence in this trial. We would reject this ground. Ground 3: That the trial judge was in error in z1efusing to direct the jury that, the Crown huving called evidence of the probable insanit) of the accused at the relevint tines, it_must_ be satisfied bevond iecasonable doubt that the accused was >ane at the relevant times, This ground seems to be quite contrary to the approach courts have taken either 1n connection with the defence of insanity or the defence of diminished responsibility where that defence exists. we consider that the presumption of sanity exists so far as concerns the question of whether the jury is satisfied that a verdict of guilty or not guilty should be returned. The verdict of not guiity on the ground of ansanity 15 not to be confused with a verdict of not guilty. It 1s clear tiat it as for the accused to establish on the balance of probabilities the defence of ansanity. See The Kine — v. Porter (1933) 55 C.L.R. 182 at p.184, Mizza v. The Queen (1960) 105 C.L.R. 6059. Once there is eny evidence of insanity, at leas bevond whut might be called a scintilla of evidence, ne concide the presunption does not prevu1l with reagacd to the question of the entry) of a special verdict but the jury still has to be satisfied on the balance of probabilities that insanity hes heen establisued to its satisfaction in the light of all the evidence that is before it. We do not consider the fact that a Crown witness, or indecd the onlv medica] witnes:, or ali medical witnesses, express the view thet the accused is insane in the leeal sense alters the requrrenent t > 4 . Tart ibe gury vare be sat. Sred .cverd.rg tu the civil opas of the Msanity af the accused vetere ait sheuld enter a verdict of not pullty on the ywround of insanity. ¢ Ground 4: That the trial judge was in erior in refusing to inform, or not informing, the jury of the conscuuences of returning a verdict of not guilty on the ground of mental illness. The High Court in Lucas v. The Queen (1970) 120 C.L.R. 171 has said that it 1s generally unnecessary and undesirable that a trial judge should inform the jury of the consequences of a verdict. To som extent the learned trial judge did refez to differences in the consequences of a verdict of "guilty", "not guilty" and 'not guilty on the ground of insanity". See generally lhe King v. Porter, supra at p.185. We would not uphold tne appeal on this giound. Ground 5: That the trial iudee was ian error in nut c1recting tre jurv to return a verdict of not »urlty on tne ercind cf mental illness, We would reicct this ground of appeal because we cannot see that there was any obligation on the judge to nithdraw, nor do we think he ought to have withdrawn, the question of insanity from the jury. It was a matter the jurv should have been left to consider after being properly instructed. We do not think the evidence was 50 conclusive that, assuming it has power to do so, this court should enter a verdict of not guilty on the ground of insanity. The order therefore ne propos: is that a new trial be held end that pending its determination end subject to any order of the trial judge the appellant remain in custody, . are iT to e 7 bd ner 7 ane 1 - ~ i Se ai ¢ at y 7 ver - & * | 22 - _ ccd eb Us bates: . 1 . il. a - re err bass ' \ \ plo. |. oan Liweei--d ' 5 wee eee, 2 "we trast 17) Patec: © ' t