Peterson v Regina [2007] NSWCCA 227

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peterson v Regina [2007] NSWCCA 227 Hearing dates: 17 July 2007 Decision date: 02 August 2007 Before: Mason P at 1; Kirby J at 19; Latham J at 20 Decision: Application for extension of time to bring appeal dismissed Catchwords: CRIMINAL LAW – Appeal and new trial – appeal against acquittal – where defence of mental illness raised and successful – jurisdiction of court – where statute confers right to appeal against conviction – where no conviction by reason of mental illness – court has no jurisdiction – Criminal Appeal Act 1912, s 5. Legislation Cited: Mental Health (Criminal) Procedure Act 1990 Criminal Appeal Act 1912 Cases Cited: R v Foy (1922) 39 WN(NSW) 20 R v Greig (1996) 89 A Crim R 254 Category: Principal judgment Parties: Stephen John Peterson Regina Representation: COUNSEL: Applicant: Self represented Respondent: D Woodburn

SOLICITORS: Applicant: Self represented Respondent: S Kavanagh (Solicitor for Public Prosecutions) File Number(s): CCA 2006/2073 Decision under appeal Court or tribunal: District Court Date of Decision: 17 April 1997 Before: Ford DCJ File Number(s): 96/21/3268 (Campbelltown)

Judgment 1. MASON P: Mr Peterson (to whom I shall refer as the applicant) seeks an extension of time within which to appeal to this Court. He wishes to challenge the findings and orders made at the conclusion of his 1997 trial in the District Court. He filed process in this Court in August 2006. 2. The applicant was arraigned on an indictment charging that on 14 June 1996 at Mortdale he wounded Edward Francis Lowry with intent to murder. 3. The applicant was represented at trial by counsel instructed by the Legal Aid Commission. Upon arraignment he pleaded not guilty. His counsel then informed the judge that a defence of mental illness would be raised. 4. The applicant had elected to be tried by judge alone. A transcript is unavailable, but there is no dispute about what occurred at the short trial. It would appear that there was little dispute about the facts surrounding the offence, the real issue being whether the accused established a defence of mental illness. 5. The victim was a man in his 60s who was found lying on the platform at Mortdale Station shortly before 10.30pm on 14 June 1996. He was unconscious, bleeding profusely, with multiple wounds to the face and head. His right eye was totally closed over. His jaw, nose and cheeks were fractured. A paramedic described his whole face as having been "flattened". 6. The applicant was observed on the platform by a station assistant. He was wearing shorts and no shoes, despite it being mid winter. At about 12.30am the next morning he was found walking in Penshurst, apparently disorientated. He was arrested soon afterwards. There were abrasions to his hands and a bruise to his right hand around his knuckles. When questioned under caution he effectively admitted that he had bashed the victim. He said: "This guy was shitting me, he was rousing off at the mouth, he wouldn't shut up. God said 'hit him', the sun god". The applicant said that he was guided by the "sun god" and that he had to do what it said. Questioned as to where he hit the victim the applicant replied: "on the face three times and I dropped him. The sun god said 'kill him' so I kicked him". 7. The trial judge concluded that it was plain that the accused had physically attacked the victim, administering a number of blows by fists and foot. His Honour then addressed the question of mental illness. He said: In this case I think it is clear enough on the evidence, that the accused knew what he was doing. He was inflicting physical injury, severe physical injury upon Edward [Lowry] and he was doing so under the direction of the sun god. And it is plain, I think, that at the time he was in a most unstable condition, unstable condition of mind – that is to put it in layman's terms, and although he knew what he was doing in the sense that he knew that he was inflicting severe physical injury upon Mr [Lowry], it is also very likely that he did not know that what he was doing was wrong. And he did not know that what he was doing was wrong, because he was unable, at the time, to reason about the matter or think about the matter in hand, with a moderate degree of calm. And he did not know that what he was doing was wrong according to the ordinary standards of people in the community. In other words, he did not know it was morally wrong. Now the question is, of course, whether it may fairly be said that he was suffering a disease of the mind. And the fact that he was suffering is made very plain in the reports of the three psychiatrists whose reports are in evidence and one of whom, Dr Westmore, gave oral evidence. 1. Prior to the trial, the solicitor from the Campbelltown Legal Aid Office who was representing the applicant forwarded to the Office of the Director of Public Prosecutions, the reports of three psychiatrists, Dr Nielssen, Dr Westmore and Dr O'Dea. Each report expressed the opinion that the applicant was mentally ill at the time of the offence. The three reports were tendered at the trial. Dr Westmore alone was required for cross-examination. 2. Judge Ford QC summarised the opinions of the psychiatrists and accepted them. His Honour concluded that this was a "very, very plain case where I should accept that on the probabilities the defence of mental illness has been made out. Indeed I would say it has been made out beyond any shadow of a doubt …". His Honour concluded by finding that the accused was not guilty of the offence on the grounds that he was, at the material time, mentally ill. As required by s39 of the Mental Health (Criminal Procedure) Act 1990 as it stood at that time, the judge ordered that the applicant be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law. 3. The applicant is self-represented in this Court. In written submissions he states: 1. I was solicitored by my solicitor to plead Not Guilty due to mental illness. 2. The Judge in my case did not resource the matter before passing sentence, on the information given to him. 1. The first paragraph confirms that the plea of not guilty due to mental illness was raised by the applicant at trial. As indicated, it was the applicant whose lawyers presented the supporting evidence through the testimony of three psychiatrists. 2. In his oral submissions the applicant did not dispute that he had raised mental illness at the trial, although he added that he was drugged at the time when he gave instructions to plead not guilty on this ground. 3. The applicant also explained his written submission about the judge's failure to "resource the matter before passing sentence" as referring to the judge's failure to consult with the "sun god" about the matter. 4. The applicant read a statement to the Court that effectively confirmed that he had repeatedly assaulted the victim upon instructions from "the earth", "Spacedust" and "Kadec (a plasma being)". 5. This Court is obliged in the circumstances to dismiss the application on the ground that it does not have jurisdiction to entertain it. Section 5 of the Criminal Appeal Act 1912 confers a right to appeal against conviction on indictment and, with the leave of the Court, against the sentence passed on conviction. But the applicant was not convicted. 6. Section 5(2) states: For the purposes of this Act a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. It is clear in the circumstances that the successful defence of mental illness was set up by the applicant and advanced at trial on his behalf by his legal representatives. 1. Accordingly, this Court has no jurisdiction to entertain the foreshadowed appeal (see R v Foy (1922) 39 WN(NSW) 20; R v Greig (1996) 89 A Crim R 254). The appeal against sentence is similarly incompetent. It could not succeed in any event because, as indicated, the order for detention that was made pursuant to the mandatory provisions of the relevant legislation. 2. Accordingly, there is no basis for granting an extension of time to bring either appeal. I propose that the application be refused. 3. KIRBY J: I agree with Mason P. 4. LATHAM J: I agree with Mason P.