Regina v Brian John WELSH [1999] NSWCCA 386

New South Wales Court of Criminal Appeal CITATION : Regina v Brian John WELSH [1999] NSWCCA 386 FILE NUMBER(S) : CCA 60669/97 HEARING DATE(S) : 29/11/99 JUDGMENT DATE : 3 December 1999

PARTIES : Regina Brian John Welsh JUDGMENT OF : Wood CJ at CL; Sully J; Simpson J

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70071/94 LOWER COURT JUDICIAL OFFICER : Hidden J

COUNSEL : L.M.B. Lamprati - Crown P. Byrne SC - Appellant SOLICITORS : S. E. O'Connor - Crown John Bettens & Co. - Appellant CATCHWORDS : - ACTS CITED : Evidence Act 1995 (NSW) DECISION : Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL

60669/97

WOOD CJ at CL SULLY J SIMPSON J

3 December 1999

REGINA v Brian John WELSH

JUDGMENT

1 THE COURT: On 4 August 1997 Mr. Brian John Welsh, ["the appellant"], was presented for trial before Hidden J of this Court and upon an indictment charging that he had on or about 19 December 1993, and at Gilgandra in this State, murdered one Rodger Williams. 2 The appellant pleaded not guilty of murder but guilty of manslaughter. The Crown refused to accept the plea of guilty to manslaughter; and the appellant was put, accordingly, upon his trial by jury upon the charge of murder. 3 On 22 August 1997, and after a trial lasting for about 3 weeks, the jury found the accused guilty of murder as charged. The appellant was sentenced, subsequently, to penal servitude for 18 years apportioned between a minimum term of 12 years and an additional term of 6 years. 4 The appellant appealed against his conviction and seeks leave to appeal against the sentence passed upon him. At the hearing of the appeal, the application for leave to appeal against sentence was not formally abandoned, but no submissions of substance were made in respect of it. It is, therefore, unnecessary to say anything more in the present judgment about the sentence. 5 Two grounds of appeal were notified. They are expressed as follows: "1. The manner and content of the cross-examination of the witness, Dr. Marie Bashir, by the Learned Crown Prosecutor was unfairly prejudicial to the Appellant and should not have been permitted. 2. The verdict of guilty of murder is in all the circumstances of the case unsafe and unsatisfactory." 6 At the hearing of the appeal no particular submissions were addressed to the Court in connection with Ground 2 as thus notified. It was Ground 1, alone, which was the centrepiece of the appellant's attack upon his conviction. 7 It is not necessary, for present purposes, to canvass in any detail the relevant facts of the killing in question. It is sufficient to understand that the appellant did not dispute that he had in fact brought about the death of the nominated victim; but that the appellant's case was, put simply, that the level of his criminal culpability in respect of that killing should be reduced, by reason of diminished responsibility in the relevant statutory sense, from culpability for murder to culpability for manslaughter. 8 At the conclusion of the third day of the trial, the Crown Prosecutor indicated that he was proposing to call some professionally qualified witnesses. Argument thereupon ensued upon the question whether the Crown Prosecutor should be permitted to call evidence on the topic of diminished responsibility as part of a case in reply, or whether such evidence should be called as part of the Crown case in chief. Hidden J, having heard argument upon the point, delivered a short judgment ex tempore ruling that the Crown should lead in its case in chief any evidence upon which it was proposing to rely in connection with the issue of diminished responsibility. 9 The Crown called, thereupon, a number of professionally qualified witnesses. One of them was Dr. Chiu Lung Wong, a medical practitioner specialising in psychiatry. For reasons explained by him, and which it is not now necessary to canvass in detail, Dr. Wong had not been able to have a face-to-face interview with the appellant. Dr. Wong had been able, however, to inspect all of the relevant medical files of the appellant, and various other material that had been made available to him in aid of his forming an opinion about the appellant's alleged diminished responsibility. In that connection, Dr. Wong gave in chief the following evidence: "Q. Now on Thursday when you told the members of the jury the various symptoms, some of which you might have expected to have been exhibited, you referred in the context of major depressive illness to a two week period. Do you remember telling us about that? A. I do. Q. Taking you then to the evidence in this particular case, if the accused was suffering from major depression at the time of the killing would you have expected there to have been symptoms of that major depression exhibited in the days leading up to the killing? A. Yes because in this case we are not talking about just a mild fluctuation in his mood. We are talking about a major - a depression of considerable severity and it is likely that the people around him would have noticed some of those symptoms. The point I would like to impress is that we are not talking about a mild mood fluctuation, we are talking about a severe disorder. Q. If I might just ask you similarly then if the accused was suffering from major depression at the time of the killing, would you have expected to see symptoms of that major depression in the days following the killing? A. Yes, particularly bearing mind that the commission of the offence as well as the subsequent apprehension, well, those were stress of considerable severity and those events in themselves are likely to aggravate whatever depression there might be at the time of the offence itself. Q. You are aware that the accused was charged with this murder on the evening of Monday 20 December 1993? A. Yes. Q. You are aware that he then went into custody? A Yes. Q. Have you had an opportunity of examining the prison medical service file relating to the accused? A. I have. Q. Do you accept that from that file it appears that he was received into the remand centre at Long Bay Gaol on 24 December 1993? A. Yes. Q. Have you read the various entries in that prison medical file from the time of the accused's admission to the remand centre? A. Yes. Q. I ask you this from a psychiatric point of view, if the accused was suffering from major depression at the time of the killing and then, as you have just said to the jury, there was the additional stress of having been apprehended and charged and gone into custody for this killing, would you have expected there to have been evident symptoms of major depression on his admission to Long Bay? A. I would, particularly bearing in mind that any inmate with a - having been charged with such a serious offence, on his admission he would be assessed by qualified staff and symptoms of severe depression are much more likely than not picked up [by] the staff concerned. Q. Having read the prison medical file are there any entries relating to the condition of the accused on his admission and the period following that relating to observations of any signs or symptoms of major depression? A. No. What usually happened on admission was that the inmate was assessed and if there was any question of him having a psychiatric disorder he would be referred to a psychiatrist, but in his medical file I could find no evidence of such referral until several months later, until May 1994, and there was an entry on 29 December 1993 to the effect that the accused told the staff that he had some suicidal thoughts when he first went in, but after a pep talk by another inmate he woke up, according to his words, and since then the only problem that he had was some difficulty in sleeping. For that he was prescribed some sleeping tablets and several months later in May , when on receipt of a letter from one of his family, Josephine Windsor, he was referred to see a psychiatrist. That was the first time he had contact with a psychiatrist inside the prison and although he did express some suicidal thoughts when he first went in, they could be dispelled just by talking to a fellow inmate and I don't think that constituted symptoms of a severe depression. Perhaps I might add that when he was assessed by a psychiatrist in May 1994 the psychiatrist's opinion was there was no evidence of endogenous depression." [Appeal Book 216, 217] 10 The concluding reference in the passages previously quoted was a reference to the contents of a report which had been provided by another psychiatrist, Dr. Lewin, who had seen the appellant on 26 May 1994. The whole of the evidence given by Dr. Wong in the passages quoted was received without objection. 11 In the case at trial for the appellant, evidence was called in his case from Professor Marie Bashir. Professor Bashir was, at the time she gave her evidence, a professor of clinical psychiatry at the University of Sydney. She had, undoubtedly, the highest professional qualifications in the field of clinical psychiatry. Professor Bashir gave, in chief, the following evidence: "Q. Did you, in October of 1995, come to a view in respect of Brian Welsh's mental functioning on 19 December 1993? A. Yes. Q. And did you come to a view that he was experiencing, at the time of the assault, a psychotic phenomenon? A. I did. Q. And can you describe the psychotic phenomenon that, in your view or your opinion, he was experiencing? A. Yes. I stated at the time that I considered that Mr. Welsh was experiencing psychotic phenomena in the form of auditory hallucinations of a depressive mood-congruent type, which significantly impaired his judgment and resulted in the fatal assault. Q. Now -- A. By mood-congruent I mean that they would fit in with a depressive mood. They weren't voices from Mars or from another planet, they were voices, the content of which was sadistic. Mood-congruent delusions are delusions we can have if we are severely depressed, have a biological depression which is the sort of depression which can be related to family, biological, vulnerability to, can, if associated with the depressive disorder, be condemnatory, accusatory, sadistic, be insulting in fact. They can make derogatory sexual comments about the sufferer. So that is what I mean about mood-congruent. Q. Are those sorts of things capable of impairing judgment? A. Yes, they are. Q. Are they capable of impairing control? A. Yes, they are. Q. Did you form any view as to whether his judgment or his control was impaired in any way by his depressive mood, on the night of this assault? A. I believed that it was and that in the days prior to the tragic event he had been withdrawn, had experienced auditory hallucinations, that the process was in train of a psychotic depressive episode. Q. And how would you grade that depressive episode? Was it mild or was it something more than mild? A. Well, by definition a psychotic depressive episode is severe. Q. Severe? A. Yes. Q. In your view, is it an abnormality of the mind? A. Yes, it is. Q. And is it an abnormality of the mind that could be classified as a disease or as an injury or what? A. Or a disorder, a disorder or disease." [Appeal Book 392,393] 12 When the Crown Prosecutor at trial came to cross-examine Professor Bashir, he took the witness to the appellant's prison medical file. Particular attention was drawn to a psychiatric consultation between Dr. Lewin and the appellant on 26 May 1994. This was, according to the appellant's prison medical file, the first occasion upon which he had been seen in professional consultation by a psychiatrist since his entry into pre-trial custody. The cross-examination took Professor Bashir, almost line by line, through the relevant entry by Dr. Lewin in the appellant's prison medical records. It thus appeared that, according to Dr. Lewin, there had been, as at the time of his consultation with the appellant: "……….no acute features today. No sign mental illness. No sign psychosis, past violent act or acute gaol stressor". [Appeal Book 533] 13 This line of cross-examination drew a spirited objection from senior counsel, - a most experienced practitioner in criminal trials, - then appearing for the appellant. The nub of the objection was put in the following terms: "In respect of the material I raised before the adjournment, I want to make my position clear. Your Honour, I take the view that your Honour directed my learned friend that if he were to call doctors he was to call them in his own case. He has had the benefit of Dr. Lewin's evidence without my having the benefit of calling Dr. Lewin. He has also, in my respectful submission, trespassed upon a direction that your Honour gave or a ruling that your Honour gave in respect of - I withdraw that, an understanding that arose out of a discussion with your Honour, I don't think he trespassed upon a ruling, in fairness to him, but I do think that he went beyond the terms or parameters that were indicated by your Honour as permissible for him to travel in in order to satisfy the complaint that I had made. I have contemplated asking for a discharge of the jury but I do not do so, but I do not want people in another place to think anything more than what was though in R v Anderson, that is that I am entitled to do the very best that I can in the circumstances that I have got, particularly bearing in mind the point we're at in this trial. In other words, my understanding of what was said in R v Anderson, your Honour will recall that because your Honour was counsel for Anderson, but when your Honour was invited to make a discharge application your Honour did not and there was no ruling upon it. The Court of Criminal Appeal held as I understand that you were entitled bearing in mind the way in which the trial had gone to look to the jury to see what best result you could get; and I find myself in the same position." [Appeal Book 535, 536] 14 The foregoing exchanges took place towards the end of the particular sitting day. On the following morning, learned Senior Counsel for the appellant asked Hidden J to limit, pursuant to the provisions in that behalf of s.136(a) of the Evidence Act 1995 (NSW), the use that might be made of the evidence which had been elicited in cross-examination as to the observations made by Dr. Lewin in connection with his professional consultation with the appellant. 15 This application drew from Hidden J the following ruling: "Yesterday, in the course of the evidence of Professor Bashir, the Crown prosecutor took her to the prison medical file and, in particular, to the notes of Dr. Lewin relating to a consultation he had with the accused whilst in custody in May 1994. That process was the subject of submissions by Mr. Nicholson yesterday and some comments by me which have been recorded, I understand, in a separate judgment. In fact, the notes were read onto the record in the course of cross examination and those notes contain a brief history from the accused. Among other things the notes record, apparently, that the accused told Dr. Lewin that he was impulsive and short tempered, especially when drinking, and had many fights when drunk. Mr. Nicholson has submitted this morning that I should limit the use to be made of this evidence, pursuant to s.136(a) of the Evidence Act, on the basis that to use it as an admission by the accused that he was impulsive and short tempered when intoxicated and had had many fights when drunk would be unfairly prejudicial to him. The matter is troubling, but on balance I think that submission is sound. I say so for this reason: in the course of the defence case a number of witnesses had been asked whether the accused tended to be violent when drunk., and that matter has also been dealt with in the history provided by the accused to the various experts who have given evidence. The effect of that evidence is that such violence as he previously exhibited when intoxicated is insignificant. More importantly, that matter was canvassed in the course of the Crown case with a number of witnesses called by the Crown prosecutor, so that the Crown was clearly on notice of this issue before his case was closed. There is nothing to suggest that Dr. Lewin, who is a well known Sydney forensic psychiatrist, was unavailable to give evidence in the course of this trial and it seems to me that, if the Crown wished to rely upon the history given to him as an admission by the accused of significant violence in the past, the doctor himself should have been called in the Crown's case in chief. In my view, the accused is significantly prejudiced by the fact that that course was not taken, and in this regard I should say that what appears in the prison medical file under the hand of Dr. Lewin is nothing like a report. It is no more than clinical notes and, it would seem, fairly laconic ones at that. I have a sense of real unease in allowing that material to be used as any form of admission by the accused, and I propose to direct the jury accordingly. The consultation remains significant, of course - and Mr. Nicholson does not suggest otherwise - because of Dr. Lewin's conclusion that there were no signs of endogenous depression, and because the evidence discloses that it would seem that this was the first occasion since he has been taken into custody that the accused had told any health professional that he had been hearing voices. I propose to tell the jury that the history given to Dr. Lewin is relevant only insofar as it is part of the material as Dr. Lewin understood it upon which he arrived at his diagnosis, but that it cannot be used by the jury as evidence of the facts recorded. What I am saying is, the evidence of the history is in, and I think I should direct the jury that it is no more than background material as Dr. Lewin understood it. It does not prove precisely what it was the accused said to Dr. Lewin, and cannot be used as evidence of admission by the accused as to past conduct." [Appeal Book, 594,595] 16 The trial proceeded accordingly. When, in due course, Hidden J came to sum up to the jury, his Honour gave the jury a number of specific directions intended to implement the terms of the ruling quoted above. 17 His Honour's first reference to the topic appears at: Appeal Book 608, 609, and is in the following terms: "In addition, in determining what is the accused's account of relevant matters, you may have regard also to what he told the various experts from whom you have heard in this court room: Dr. Nielssen, Professor Bashir, Dr. Gilandas, Mr. Klein. You can have regard also to what he is recorded as having told Dr. Milton, who saw him back in 1985, and you recall Dr. Milton's report is in evidence as exhibit 1. In other words, that history that he gave those various professionals is available to you in this court room as his account of relevant events. To that general proposition, however, there is one exception. You may recall that when Professor Bashir was being cross-examined, the Crown prosecutor took her to the accused's prison medical file and, in particular, to some notes of a consultation between a psychiatrist called Dr. Lewin and the accused in May 1994. You may remember those notes contained what appeared to be matters of history provided to Dr. Lewin by the accused at that time, matters about his background and behaviour, including matters relating to his behaviour when intoxicated. Ladies and gentlemen, it would be unsafe to use that material as any evidence of the accused's background or his past behaviour. I say that because all we have are brief notes, rather than a narrative report, and brief notes of a doctor whom we have not seen or heard in this court room. Whether those notes are an accurate record of what the accused told Dr. Lewin we really cannot know. So, I direct you that you must not use that material as evidence of what the accused said to Dr. Lewin in the course of that consultation and, more particularly, you may not use it as evidence of the truth of anything noted about the accused's background or behaviour or in the course of that consultation. The relevance of that consultation I will come to later, but you may understand the relevance of it in the Crown case is Dr. Lewin's diagnosis that there was no endogenous depression, and also the fact that it seems to be the first time that the accused told anyone in the prison medical system that he had been hearing voices. That is of significance, and that is where its significance begins and ends. More of that later." 18 When his Honour came, in due course, to give the jury specific directions upon the topic of diminished responsibility, his Honour introduced his directions with the following charge: "Now, on this issue of diminished responsibility, it is the accused who bears the burden of proof. The standard of proof he bears is not beyond reasonable doubt, which is the standard of proof borne by the Crown, but rather on the balance of probabilities, and the accused has to show that it is more likely than not that he was suffering from diminished responsibility at the time. I will adopt Mr. Nicholson's image of the scales, the weighing scales: If the accused tips the scales ever so slightly in his favour on this question of diminished responsibility, then he has proved it, and is entitled to a verdict of not guilty of murder but guilty of manslaughter." [Appeal Book 622] 19 His Honour then went on to develop extensive directions to the jury on the topic of diminished responsibility. In that connection his Honour reminded the jury of the contents of an unsworn statement that the appellant had made to the jury. Immediately thereafter his Honour said this to the jury: "Now, ladies and gentlemen, as I said yesterday, you may also have regard to what the accused told the various doctors and other experts to whom he spoke as to his account of his background and the events of this fateful night. From that, you may remember, I excluded the notes from the Prison Medical Service of the history he gave to Dr. Lewin which I alluded to in my summing-up yesterday: the evidence of his past medical history and past behaviour." [Appeal Book 627] 20 His Honour then proceeded to canvass carefully with the jury the relevant psychiatric evidence. In that connection, and after adverting to the competing submissions which had been put to the jury in connection with the topic of diminished responsibility, his Honour said: "The Crown relied also on the material from the Prison Medical Service, the effect of which was summarised for you by Dr. Wong. From it it appears that not long after going into custody the accused complained of suicidal thoughts, but said he had been able to be dissuaded from any attempt at suicide by a pep talk from his fellow prisoners. Otherwise, it seems there is no indication in his prison history of any psychiatric illness, other than in the conversation which Dr. Lewin had with him in May 1994, when he did not diagnose any psychiatric illness, in particular I think his expression was that he did not find any endogenous depression. You will recall Dr. Bashir's evidence about the Prison Medical Service generally and Mr. Nicholson's comments about that. His submission in reply to that is you would not credit the Prison Medical Service frankly with any great competence or care, and signs of depression might have been missed." [Appeal Book 633] 21 No re-directions were sought either by the Crown Prosecutor or by learned Senior Counsel then appearing for the appellant. 22 At the hearing of the present appeal, learned Senior Counsel for the appellant, (not being counsel at trial), submitted that what had happened at the trial and in connection with the use made by the Crown Prosecutor of Dr. Lewin's notes in the prison medical files had been so unfair as to constitute a miscarriage of justice calling for the intervention of this Court. The point, as argued at the hearing of the appeal, is put with complete clarity in the following extracts from the written submissions put in by learned Senior Counsel for the appellant: "The unfairness caused to the appellant is in my submission manifest. There is no reason given why Dr. Lewin was not called. If that course had been taken then counsel for the appellant would have had the opportunity to cross-examine the doctor. As the evidence unfolded in the trial, it is contended that the Crown was effectively able to split its case on the question of diminished responsibility and to obtain the benefit of both a history and a psychiatric opinion from Dr. Lewin without having that opinion subjected to scrutiny. Whilst the learned trial Judge did with respect all that could be done to limit the prejudicial impact of the evidence introduced in the cross-examination of Professor Bashir, by his Honour making an order restricting the use which could be made of the evidence in accordance with the provisions of s.136 of the Evidence Act, 1995, the prejudicial impact on the case for the appellant remained. It is submitted that the manner in which the Crown conducted the trial proceedings has deprived the appellant of a fair trial according to law. The favourable impact for the appellant of the evidence from Professor Bashir has effectively been blunted by the use of a technique in cross-examination which was, in the circumstances in which this trial was conducted, unfair. The jury were invited to diminish the value of the conclusions reached by Professor Bashir by reliance on material which the Crown should have called in its own case and which should have accordingly been subjected to the test of cross-examination. It is accepted that the point raised on behalf of the appellant is a fine one but it is not without significance in the overall context of the trial proceedings. This was a re-trial of the appellant on a charge of murder. The onus of affirmatively establishing a defence of diminished responsibility rested on him. It can never precisely be determined what the impact of the evidence from Dr. Lewin's consultation might have been. The learned trial Judge with respect very properly directed the jury on more than one occasion that "if the accused tips the scales ever so slightly in his favour on this question of diminished responsibility, then he has proved it, and is entitled to a verdict of not guilty of murder but guilty of manslaughter"…………………. Bearing in mind that the question of diminished responsibility was the only real issue in the trial, it is imperative that that issue be seen to be dealt with fairly and in accordance with the rulings which the learned trial Judge had made. It is submitted that the trial proceedings have miscarried by reason of the failure to fairly and properly deal with the only real issue in this case." 23 In our opinion, these submissions now put for the appellant have not been made good. It is, in our opinion, clear that a deliberate tactical decision was taken at trial, - and was taken, moreover, by competent and very experienced senior counsel, - not to seek a discharge of the jury by reason of what had occurred in connection with the use by the Crown Prosecutor at trial of Dr. Lewin's notes forming part of the relevant prison medical records. Instead, an equally deliberate tactical decision was taken to seek appropriate directions pursuant to s.136(a) of the Evidence Act. The learned trial Judge acceded to that application, and gave, accordingly, such directions. No complaint was made of the terms in which the directions were given. Nor, in our respectful opinion, could such complaint have been properly made. In our opinion, the directions given by the learned trial Judge, in the exercise of his Honour's relevant powers and discretions pursuant to s.136(a), were clear, comprehensive, and completely fair to the appellant. 24 For the whole of the foregoing reasons, we are unable to see how the appellant can be thought, reasonably, to have been deprived wrongly of the fair chance of an acquittal. 25 We make, therefore, the following orders: