New South Wales Court of Criminal Appeal CITATION : R v Kluska [2001] NSWCCA 284 FILE NUMBER(S) : CCA 60196/00 HEARING DATE(S) : 18 July 2001 JUDGMENT DATE : 25 July 2001 PARTIES : Regina Martin Kluska JUDGMENT OF : Ipp AJA at 1; Hulme J at 2; Sperling J at 3 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : L96/012 LOWER COURT JUDICIAL Grove J OFFICER : COUNSEL : D M Woodburne for the Crown Applicant in person SOLICITORS : S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - application for leave to appeal against decision declining to redetermine life sentence - no question of principle LEGISLATION CITED : Evidence Act 1995, s4(2), s60 Sentencing Act 1989, s13A CASES CITED: Welsh (1996) 90 A Crim R 364 DECISION : (1) Extend time for application for leave to appeal; (2) Grant application for leave to appeal; (3) Dismiss the appeal. - 13 -IN THE COURT OF CRIMINAL APPEAL 25 July 2001 Ipp AJA Hulme J Sperling J 60196/01 Regina v Martin KLUSKA Judgment 1 IPP AJA: I agree with Sperling J. 2 HULME J: I agree with the orders proposed by Sperling J and with his reasons. 3 SPERLING J: On 27 July 1988, the applicant was apprehended and charged with the murder of Bruce Mannion. Having been committed for trial, he was indicted before Grove J on 9 April 1990. He pleaded "Not guilty". The trial proceeded before Grove J and a jury. The applicant was found guilty as charged on 22 May 1990. On 10 August 1990, Grove J sentenced the applicant to life imprisonment as he was, at that time, required to do by law in the absence of mitigating circumstances. The sentence took effect from 28 July 1988. 4 On 14 February 1994, this Court heard an appeal against conviction and an application for leave to appeal against sentence. The appeal against conviction was dismissed on the merits after argument. The application for leave to appeal against sentence was also dismissed. 5 On 27 November 1998, Grove J heard an application by the applicant for redetermination of the life sentence. The applicant and the Crown were legally represented at the hearing. 6 The application was made pursuant to s13A of the Sentencing Act 1989, now repealed but, in substance, re-enacted in other legislation. Under that provision, Grove J had power to redetermine the sentence or to decline to do so and, in the latter event, to direct that the applicant not re-apply for a specified period. 7 The evidence tendered by the Crown included a statement of facts dated 4 March 1997 with annexures (Exh A), a report by the Serious Offenders Review Council (SORC) dated 16 October 1997 (Exh B), and a bundle of indexed documents (Exh C). These exhibits included a report by Dr H Jolly, psychiatrist, dated 20 February 1985, a report by Dr I Ali, psychiatrist, dated 3 October 1997 (Annexure X to Exh B) and a report by Dr T Luu, psychiatrist, (part of Exh C). There was no objection to the tender of these documents. In addition, oral evidence was given by Ms M Anderson, executive officer and registrar of SORC, and by Dr R A Wilcox, psychiatrist. These witnesses were called by the Crown. 8 The applicant tendered a report by Mr J Moulton, registered nurse, (Exh 1), a statement of facts responding to Exh A (Exh 2) and a bundle of documents (Exh 3). In his response to the Crown's statement of facts, the applicant denied that he is guilty of the murder of Bruce Mannion, denied that he was or had been mentally ill, and denied much of the histories appearing in the medical reports annexed to the SORC report. 9 The Crown's statement of facts (Exh A) provided particulars of the applicant's trial, his criminal history and the sentencing process. The applicant's response (Exh 2) and the bundle of documents (Exh 3) disputed a large number of items in the Exh A and presented documentary material relating to studies undertaken while in prison and other matters which the applicant wished to have before the Court. 10 The SORC report (Exh B) provided details of the applicant's prison history and of his psychiatric history before and during his imprisonment. It concluded with the comments that "[the applicant's] eccentric behaviour and general reluctance to associate with other inmates or to participate in meaningful programs have delayed his progress to a lower security classification" and, "Until [the applicant's] condition has been stabilised by medication the Council will not be in a position to make any firm prediction about his future management or progress". 11 The report by Dr H Jolly dated 20 February 1985 was to the following effect. At that time, the applicant had been convicted of an earlier offence and was awaiting sentence. Dr Jolly said that, although there was no evidence of a major psychiatric illness, the applicant had a severe personality disorder. 12 Dr Ali's report dated 3 October 1997 was to the following effect. Following a number of admissions to prison hospital with florid psychiatric symptoms, the applicant was certified in July 1997 and had been under psychiatric care since then as a forensic patient. 13 Dr Luu was Dr Wilcox's psychiatric registrar. Her report of 26 November 1998 was to the effect that, as at that date, the applicant continued under care as a forensic patient with persisting florid symptoms. 14 Ms Anderson said in chief that it was still not possible for SORC to formulate a definitive programme for the applicant because of his mental state. In cross examination, she said the most recent review by a SORC committee was in June 1998. That was six months before the hearing of the redetermination application. 15 Dr Wilcox said she was treating the applicant. She said it was unlikely that the applicant's condition would change over the ensuing three years, although that was possible. It was also possible he would develop greater insight and that he would become more compliant in relation to his medication. She said the applicant was taking his medication because he knew he could be forced to do so and that, if the applicant continued on medication, he could be expected to become more insightful. In cross examination she agreed that the applicant's prospects of being placed in a custodial hospital outside prison before he was eligible for release, but still as a forensic patient, would be greater the shorter the period of the sentence remaining to be served. Redetermination of his life sentence would, therefore, she agreed, improve his chances of such a placement. She agreed that inmates generally benefited from the opportunity to have a more normal environment outside prison, and that there was no reason to think the applicant would be an exception in that regard. 16 Mr J Moulton, whose report dated 3 May 1998 was tendered by the applicant (Exh 1), was a psychiatric registered nurse at the prison hospital. The report included an observation that, in Mr Moulton's opinion, the applicant displayed a reasonable amount of insight into his illness. The evidence of the psychiatrists to whom I have referred was otherwise. 17 On 18 December 1998, Grove J gave judgment, declining to redetermine the sentence and directing that the applicant not re-apply for a period of three years from that date. Had the judge given no such direction, the applicant would have been precluded from re-applying for three years in any event, by operation of subs (8B) of s13A. The only complaint that the applicant can have about the direction is, therefore, that the period specified should have been shorter. 18 On 5 April 2001, the applicant filed an application for leave to appeal from the decision of 18 December 1998 and an application to extend time for that application. The application for leave to appeal should be taken to relate to Grove J having declined to redetermine the sentence and to the period specified in the direction. 19 In his published reasons for decision, Grove J found - as the evidence before him incontrovertibly established - that the applicant had been transferred to a prison hospital as a forensic patient on 28 July 1997, having been certified mentally ill by Dr O'Dea and Dr Wilcox, psychiatrists, at that time. 20 His Honour found - again, as the evidence incontrovertibly established - that there was a history of serious crimes being committed soon after the applicant had been released from prison on parole on earlier occasions. 21 His Honour found that "the Council is not able to formulate a definitive program for the applicant because it will depend very much on his state of mental health". That this was the opinion of SORC was incontrovertible. 22 His Honour's reasons for declining to redetermine the life sentence were expressed as follows. His Honour said that "further investigation should take place before determination of the minimum and the additional term of the sentence." Concerning any future redetermination of a full term, his Honour said, "Absent any mitigation deriving from the applicant's mental condition, I would assess a proportionate sentence [that is, a redetermined sentence] in the circumstances manifest at trial at more than twenty years penal servitude". His Honour went on to say that "[a] decision on minimum term requires more definitive information as to the mental health of the applicant and his [the applicant's] prognosis" and that "a further three years should enable creation of an information resource from which the extent of mitigation referrable to the applicant's mental condition and appropriate rehabilitative steps can be gauged". His Honour said, "the most liberal contemplation of possible factors to be given account would not produce in my estimate a minimum term which would expire before a further application by the applicant may be brought". His Honour acknowledged a submission by the applicant's counsel that redetermining the life sentence at that stage, with determination of a minimum term, would "attract favourable consideration for his [the applicant's] transfer to an 'outside' community hospital." 23 The time served in prison as at three years hence, dated from his Honour's decision, was - by simple arithmetic - about 13 and a half years. 24 His Honour's reasons for dismissing the application for redetermination and for the three year direction may, accordingly, be summarised as follows: (a) There were problems about deciding the question of redetermination satisfactorily at that stage. (b) There was the prospect that a better informed decision could be made in three years time. (c) The minimum term of any sentence as redetermined at a future time would not expire on a date earlier than three years hence. (d) Implicitly, any prejudice suffered by the applicant in relation to possible placement in a custodial hospital outside prison was outweighed by the advantage of deferring the question of redetermination for three years. 25 The applicant was not represented at the hearing of the present appeal proceedings. Of the grounds of appeal filed by the applicant, the Court was informed by the applicant that he wished to press only two of them. These were as follows: 25. I produce the notes taken by my solicitor at the time a Miss Priscilla Adey and my notes with evidence to show that the evidence of these witnesses is either in disput [ sic ] to prove my guilt and also for me to prove that those witnesses and others are deliberately mistaken or lying about their evidence about me. Also that my legal counsel never properly presented the case before the court with the facts I have produced, which shows the negligence of my legal counsel to present my case properly before the court, thus, forcing me to become convicted on uncredible [ sic ] evidence on the Crown [ sic ]. 27. That the Honourable K Enderby QC (Chairman) of the Serious Offenders Review Board did authenticate and approve of the SORC report of the 16th of Oct 1997, which went before the Supreme Court for my life redetermination of sentence [ sic ] in Dec 1998. The fact is that SORC refused to investigate any of the issues raised in the report or to check if the information is correct and based on true FACTS ! My evidence shows that the SORC Report presented before the Supreme Court is biased towards me [ sic ] for 2 reasons. Firstly, No good conduct reports were ever presented only the alleged bad one's [ sic ] which were all based on lies anyway. This proves that SORC did deliberately lie before the Supreme Court in presenting a report they knew was false, biased and intended to deliberately cause me harm by presenting this report which is not based on FACTS - nor is it beyond reasonable doubt. Secondly, the SORC report is incredible, unreliable, false - does not prove anything based on facts and does and is not a report that is beyond reasonable doubt and must become inadmissable [ sic ] as evidence. 26 Obviously enough, these grounds had been drafted by the applicant personally. 27 As to Ground 25, we have seen the notes by Ms Adey. They are dated March 1989. That was before the applicant came before the Supreme Court for trial. The witnesses referred to in Ground 25 are those referred to in Ms Adey's notes. They were trial witnesses of whom the applicant had notice. 28 The complaint in Ground 25 concerning these witnesses and concerning legal counsel relates to the applicant's trial and conviction. As explained to the applicant at the hearing before us, the present proceedings relate to the decision by Grove J given on 18 December 1998, declining to redetermine the applicant's life sentence and the three years direction which he made. For the applicant to succeed in the present proceedings, error by Grove J in relation to that decision has to be demonstrated. Grove J had no power on an application for redetermination of the applicant's life sentence to entertain a challenge to the applicant's conviction. Accordingly, Ground 25 as a ground for impugning Grove J's decision of 18 December 1988 must fail. 29 In summary, Ground 27 asserts - (a) That the SORC failed to ensure that the facts stated in the report were true. (b) That SORC was biased against the applicant as demonstrated by - (i) SORC including only bad reports and no good conduct reports. (ii) The report being incredible, unreliable and false. (c) That the SORC report did not establish facts beyond reasonable doubt and was therefore inadmissible. 30 The applicant's written argument in support of this ground extends to criticism of the reports by Dr Jolly, D Ali and Dr Luu. The applicant asserts that a good deal of what appears in the SORC report and in the psychiatric reports is factually incorrect; that Grove J was wrong to admit the SORC report into evidence; that, having admitted the reports into evidence, he was required to be satisfied beyond reasonable doubt of the ostensible facts stated in them; that he failed to observe that standard of proof; and that he could not have been satisfied of the truth of what was said conformably with that standard. 31 The trial judge was bound by s13A(9)(b) to have regard to reports of the kind that were tendered. The SORC report and the psychiatrist reports were accordingly admissible. The Evidence Act 1995 does not apply to proceedings in relation to sentencing unless the Court so directs: s4(2). So the histories in the medical reports were evidence of the truth of what was stated. (Even if the Evidence Act applied, the result would be the same, by operation of s60 of that act: Welsh (1996) 90 A Crim R 364.) 32 There was no rational reason for not accepting what was in the reports, including both the histories and the opinions expressed. The assertion of bias on the part of SORC is not made out. There was no rational reason for such a finding arising from the evidence before Grove J or from the material before this Court. 33 It is unnecessary, in these circumstances, to consider what standard of proof applied. When the only rational evidence is clear and ostensibly sound, the standard of proof is immaterial. 34 In essence, the trial judge decided that it was better to defer the question of redetermining the applicant's life sentence for a period of three years for the reasons he gave. I detect no error as alleged in that decision or in his Honour's reasons for the decision. 35 The applicant is free to make a fresh application in December of this year. Nothing in this judgment should be construed as an indication as to what the result of any such application should be. No such indication is intended. 36 As to the application to extend the time for leave to appeal, I would attribute the delay to the applicant's mental state and would grant leave. 37 The orders I propose are as follows: (1) Extend time for application for leave to appeal. (2) Grant application for leave to appeal. (3) Dismiss the appeal. -oOo- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.