Reported Decision : 140 A Crim R 549 New South Wales Court of Criminal Appeal CITATION : REGINA v. RIDDELL [2003] NSWCCA 251 HEARING DATE(S) : Tuesday 9 September 2003 JUDGMENT DATE : 9 September 2003 JUDGMENT OF : Hidden J at 27; Greg James J at 1; Bergin J at 28 DECISION : Appeal dismissed CATCHWORDS : Criminal law - appeal - s.5 of Criminal Appeal Act 1912 - special verdict of not guilty by reason of mental illness - availability of appeal - "raising" of mental illness defence - availability of appeal - effect of s.7(4) of Criminal Appeal Act 1912 - consequence if appellant found mentally ill on appeal. Criminal Appeal Act 1912 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Criminal Procedure Act 1986 Foy (1922) 39 WN(NSW) 20 CASES CITED : Greig (1996) 89 A. Crim. R. 254 Birks (1990) 19 NSWLR 677 PARTIES : REGINA v. RIDDELL, Bruce FILE NUMBER(S) : CCA No. 60171/03 COUNSEL : Crown: E. Wilkins App: In person SOLICITORS : Crown: S.E. O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 00/51/0208 FILE NUMBER(S) : LOWER COURT Gibson, DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60171/03 HIDDEN, J. GREG JAMES, J. BERGIN, J. TUESDAY 9 SEPTEMBER 2003 REGINA v. BRUCE RIDDELL Judgment 1 GREG JAMES, J: Mr. Bruce Riddell seeks to appeal pursuant to s.5 of the Criminal Appeal Act (1912) against a special verdict under s.38 of the Mental Health (Criminal Procedure) Act (1990) made at trial against him. Section 5(2) of the Criminal Appeal Act provides:- "For the purposes of this Act the person acquitted on the ground of mental illness, when 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." 2 More generally, s.5 provides the right of appeal to this court as available subject to certain exceptions not here relevant, only in the case of a person convicted on indictment or sentenced. 3 Section 38 of the Mental Health (Criminal Procedure) Act (1990) provides:- "If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 4 Such a verdict has the consequence that by virtue of s.39 of the Mental Health (Criminal Procedure) Act (1990) the court must order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law. 5 In the present case Mr. Riddell was not tried by jury in consequence of a consent having been given for a judge only trial before Judge Gibson, QC. in the District Court of New South Wales. Prior to that trial commencing, in accordance with the direction of the Solicitor General as delegate for the Attorney General, an enquiry had been conducted into Mr. Riddell's fitness for trial. Gibson, DCJ., before whom that enquiry had come, and who by reason of a consent given undertook that hearing without the benefit of a jury had concluded that Mr. Riddell was, at the time of coming forward for trial, fit for trial, and relying on the material, including two psychiatric reports provided to him, concluded when he heard the trial that the appropriate course was to enter the special verdict under s.38. 6 Mr. Riddell had come forward on two charges. The first being that he on 12 October 2000 in Byron Bay in the State of New South Wales did attempt to murder Scott Kenneth Ashwin with intent to murder Scott Kenneth Ashwin, and the second, in the alternative, that he did maliciously wound Scott Kenneth Ashwin with intent to do grievous bodily harm to him. 7 On the trial before Gibson, DCJ. there was a plea of not guilty to both charges. The trial judge published his reasons, as he was required by the provisions of the Criminal Procedure Act 1986 to do for the special verdict that he reached. The trial proceeded before him as he related in those reasons, by way of the statements of the witnesses being tendered and admitted by consent, and the Crown tendering a report from Dr. Westmore which became Exhibit C. It is sufficient to say that the report of Dr. Westmore dealing with, in particular, the question of the applicant's being responsible according to law for his or her actions at the time when the act was done, so far as the applicant was mentally ill at that time, says this:- "Mr Riddell has what appears to be a good understanding of the functions of the principal people present during a court case. He understands what charges he faces, and he indicated how he intends to plead to the charges. He could in my view follow the proceedings of a trial and he could provide some instructions to his solicitors. To that extent he is fit to be tried. At present he is however not considering a mental illness defence, he reports he does not believe that he is mentally ill. This is clearly a defence available to him, and because of his lack of insight into his mental illness he appears unable or unwilling to accept this as an option." 8 Dr. Westmore continued:- "Mr. Riddell suffers a serious psychiatric illness, he was mentally ill at the time the incident occurred, he suffered from a disease of the mind, namely a schizophrenic illness. This illness totally deprived him of his capacity to know that he ought not to do the act towards the victim in this matter. He had delusional beliefs relating to the victim and indeed to a large number of other people. He believed that the victim was gassing him at night in his motor vehicle and sexually interfering with him." 9 The defence case consisted of the accused giving no evidence himself but tendering a report under the hand of Dr. Rosalie Wilcox which became Exhibit 1. In that report Dr. Wilcox concluded, under the heading psychiatric diagnosis appearing at p.5:- "Mr Riddell has a mental illness characterised by prominent delusions and auditory hallucinations and association with deterioration in function. The symptoms have been present for many years and although he has used marijuana throughout this time I do not believe that he has a drug induced psychosis. The most likely diagnosis is chronic paranoid schizophrenia with a secondary diagnosis of marijuana abuse. There is no evidence that he has a personality disorder, in particular he does not have an antisocial personality disorder." 10 At the bottom of p.6 of Dr. Wilcox' report she opines:- "It is my opinion that at the time of the incident he was suffering from a disease of the mind, namely paranoid schizophrenia, and although he would have been aware of the physical nature and quality of his actions, it is most probable that he was unable to reason with a moderate degree of sense and composure about the wrongness of his actions. I therefore believe that it is most likely that Mr Riddell has the defence of mental illness." 11 She concluded by expressing the view that Mr. Riddell has a serious mental illness and would require medication for an indefinite period. 12 The trial judge properly first sought to determine on the whole of the material whether on the facts as he found them to be the accused would, but for the defence of mental illness, have been legally liable for the offence charged. He referred to the accused's actions in approaching the victim and his utterances when he held the knife to the victim's head. He referred to the struggle that occurred in the course of which the victim's ear was severely bitten and there was injury to the victim's thumb and the applicant's thumb. He referred to what was said by the applicant in his conversation with the police but concluded:- "I am satisfied beyond a reasonable doubt that the knife was in the possession of the accused at the time the incident took place, that he'd expressed an intention to use it, and to kill the victim, and in the lack of anything to suggest otherwise, and taking into consideration the fact that he had on two prior occasions, one, physically attacked the victim, and on another occasion threatened him with death, it seems to me that the fact that he armed himself on this occasion and expressed his intention and, of course, intention is a question of fact to be assessed by what a person does, by what a person says, both before and after the act, or during the act, and it seems to me that in the totality of the evidence before me that I am satisfied beyond reasonable doubt that he did perform the act and that it was performed intentionally and it was an act that he intended to kill the victim." 13 Whilst the passage may not, with the greatest felicity of expression, state the conclusions to which his Honour had come, it is entirely clear from any reading of it that his Honour was satisfied beyond reasonable doubt of all the elements of the offence absent the consideration of the defence of mental illness. His Honour then turned to the question of mental illness. He properly, in my view, concluded on the material there was only one verdict to which he could come. He concluded that the applicant at the time of the commission of the acts constituting the subject matter of the charges was suffering from mental illness so as not to be responsible in law for those acts. 14 In considering the application of s.38, it should be noted that the section does not require affirmative proof by the party setting up such a defence as the section refers to that the actions would not have occurred but for the existence of a mental illness state. It is enough that it be proved that at the time of the commission of the acts the applicant was suffering from such a state. Both parties tendered psychiatric reports to this effect. 15 Thus, the course that was adopted before the trial judge, in my view, was a course such that both the Crown and the accused set up the issue of mental illness as is referred to in s.38. In the submissions provided to us by the Crown reference is made to a decision in Regina v. Foy (1922) 39 WN(NSW) 20, cited in Regina v. Greig (1996) 89 A. Crim. R. 254, as authority for the proposition that even where defence counsel assents to the matter going forward on the issue of mental illness in address (the evidence having been tendered by the Crown) that is sufficient so that the accused set up the defence of mental illness within the meaning of s.5(2). It is not to the point that the Crown propounded the issue initially. 16 It is submitted by the Crown in consequence that it is not open to Mr. Riddell to appeal against the finding of the special verdict and the consequent order. Mr. Riddell seeks to appeal, however, against that finding on a number of bases and we have been provided by him with two sets of written material. In the statement of his grounds of appeal he has made a number of complaints concerning the detail of the way in which his counsel acted for him at the trial. Those complaints have referred to the lack of access provided to him, he asserts, by his counsel to material upon which the trial proceeded, and in particular to material concerning whether the victim received some 14 stiches in the ear. 17 A complaint is also made concerning a failure to test the police evidence concerning what injuries the applicant says he suffered at the time, that he was not called to give evidence, and that his counsel went against his instructions in pleading not guilty due to mental illness. It is asserted that a challenge should have been made to Dr. Westmore's conclusions, and a similar challenge to Dr. Wilcox' opinion. 18 In the written submissions provided to us, Mr. Riddell refers to having been off anti-psychotic drugs for two years. That reference was supplemented at the hearing when he provided us with a number of medical reports which suggest that he has not displayed the symptoms of his underlying psychotic ailments since having come before Gibson, DCJ. at trial. 19 He has said that he had assaulted Scott Ashwin because of his assaults on Mr. Riddell, not because of mental illness. This is a reference to the matter of causation rather than a reference to the coincidence of the mental illness with what had occurred at the time. Mr. Riddell complained that he had been denied by his counsel the right to show that he was not mentally ill. 20 On the hearing of the appeal the Crown Prosecutor very properly, in the light of those assertions, Mr. Riddell being unrepresented at the hearing of the appeal, expressed the view that if the applicant wished to rely on those matters the Crown would have no objection, provided that the Crown were given, so far as it might be necessary, any opportunity to meet any relevant matter. 21 The general position of a party as being bound by the course taken by their counsel has been dealt with in the decision in this court in Regina v. Birks (1990) 19 NSWLR 677. However, it may be that questions of unfitness to instruct or the possible presence of mental illness might be exceptional. 22 In the present case the issue having been raised as to fitness and mental illness in my view the court should not simply deal with the present appeal without inquiring into the substance of the defence of mental illness, and in particular as to the course the court might take in the event that the appeal were to be upheld, at least where it might be upheld under s.5(2), but purely upon procedural grounds which after all is what is asserted here. 23 Section 7(4) of the Criminal Appeal Act (1912) provides for the powers of the court in special cases. It provides:- "If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law." 24 Were the verdict, the special verdict under s.38, to be set aside on procedural grounds it would be necessary on the hearing of the appeal to examine whether or not the appellant committed the act and if so it would be necessary to consider whether, when he did so, he was mentally ill so as not to be responsible for his actions. And in that event the court acting in accordance with s.7(4) should quash the conviction and sentence passed at the trial and make the same order as the trial judge made. On all the material, including the reports provided to us by the applicant today, that is the only proper conclusion to which the court should come. 25 Looking at the matter that way even if the appeal were to proceed, on the substance of the matter, the court would be constrained to come to the same result. 26 In the circumstances I would conclude that the proper course is simply to make an order that the appeal be dismissed. 27 HIDDEN, J: I agree. 28 BERGIN, J: I too agree. 29 HIDDEN, J: The order of the court is that the appeal is dismissed. ********** Last Modified: 09/15/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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