New South Wales Court of Criminal Appeal CITATION : R v Williams [2004] NSWCCA 224 HEARING DATE(S) : 1 July 2004 JUDGMENT DATE : 6 July 2004 JUDGMENT OF : Studdert J at 1; Dunford J at 26; Howie J at 27 DECISION : Appeal dismissed. Criminal Appeal Act, ss 5, 7 LEGISLATION CITED : Criminal Appeal Rules, r 23C Mental Health (Criminal Procedure) Act, ss 11, 14, 39 R v Greig (1996) 89 A Crim R 254 CASES CITED : R v Logan [2004] NSWCCA 101 R v Stephens [1999] NSWSC 811 PARTIES : Regina v William Patrick Williams FILE NUMBER(S) : CCA 60081/04 COUNSEL : P. Power SC (Crown) In person (Appellant) SOLICITORS : S. Kavanagh (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 00/51/1039 FILE NUMBER(S) : LOWER COURT Ducker DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60081/04 STUDDERT J DUNFORD J HOWIE J Tuesday 6 July 2004 REGINA v WILLIAM PATRICK WILLIAMS Judgment 1 HIS HONOUR: The appellant, William Patrick Williams, was unrepresented. He came before this Court after filing a notice of appeal which expressed the appeal as being one against conviction and sentence. The appellant stated his grounds of appeal for the purposes of r 23C of the Criminal Appeal Rules as follows: "1. My rights were taken from me when my lawyer Penny Mainprize wanted to go with the Doctors report. I did not want this and told Penny Mainprize. But she said that I am going with the doctors report. I again said that I did not want to go with the doctors report. She said no I am going with the doctors report. 2. I did not want the defence of mental illness as my defence. I just wanted to fight the matter in a normal court of law where I am found guilty or not guilty and given a jail term or a not guilty verdict." 2 To the like effect the appellant filed submissions in support of his appeal expressed thus: "Because I am not guilty of the crimes that I am being charged with my motives were to frighten Mr Henderson with the use of the knife not to harm him in any way shape or form. My lawyer Penny Mainprize said and wanted to use the doctors report. I said that I did not want the doctors report and any thing to do with the ground of not guilty due to mental illness. But Penny Mainprize said no I am going with the doctors report. I lost my legal rights to defend the matter, case in the manner I which I wanted to defend the case." 3 His oral submissions were to similar effect. 4 Following events that occurred on 9 June 2000, the appellant was charged with wounding with intent to murder, and alternatively with malicious wounding with intent to do grievous bodily harm. There was a hearing pursuant to s 11 of the Mental Health (Criminal Procedure) Act, which hearing took place at the District Court at Inverell on 30 April 2001. At that hearing medical evidence in the form of reports from Dr Nielssen and from Dr Westmore were placed before the jury, and I shall refer to the content of these later. The jury found the appellant was unfit to stand trial. 5 Then, after a review by the Mental Health Review Tribunal, conducted pursuant to s 14 of the Mental Health (Criminal Procedure) Act, there was a direction given by the Attorney General under s 18 of the same statute that a special hearing be conducted. That special hearing again took place at the District Court at Inverell on 7 November 2001. The indictment charged the appellant with malicious wounding with intent to do grievous bodily harm. 6 At the hearing a number of witnesses were called whose evidence I will now shortly summarise: (a) Mr Henderson had known the appellant for some fifteen years through a common interest in rugby league. On the morning of 9 June 2000 Mr Henderson left a newsagency in Glen Innes to go back to his car. He had some passing conversation with the appellant. Then the appellant followed him to the car and accused him of "affecting my spiritual, you're casting demons into me". Then, according to Mr Henderson, the appellant took up a position that prevented Mr Henderson from closing the car door. The appellant then said: "Now I'm going to kill you" and produced what Mr Henderson described as a fish filleting knife with a very slender blade. The appellant lunged towards the upper body of Mr Henderson, holding the knife in his right hand. In the struggle that ensued Mr Henderson suffered a deep cut to his hand. (b) Mr Willis gave evidence that he saw the appellant near the victim holding a knife and he was yelling at Mr Henderson "something about demons". Mr Henderson was struggling with him. Mr Willis said that he and his colleague, Mr Archibald, went to Mr Henderson's assistance and proceeded to restrain the appellant. Mr Willis said that the appellant was continuously yelling at Mr Henderson "Speak up, or I'll kill you". Mr Willis said that he and Mr Archibald took hold of the appellant's arm and his evidence was to the effect that they succeeded in disarming him. (c) Mr Archibald gave evidence consistent with that given by Mr Willis. (d) Sergeant Green said he saw the appellant holding the knife in his right hand and the two men restraining him. The appellant was arrested and cautioned. When asked why he stabbed his victim, the appellant replied: "It's a spiritual thing. He and his brother taught that Chris Burn and he got my father at the showground. If I had a weapon I would have shot him." 7 In addition to the above evidence, the jury had the benefit of the evidence of the specialist psychiatrists. I will refer shortly to the content of their reports. 8 Dr Westmore assessed the appellant on 20 September 2000. Dr Westmore's report evidences that he obtained a fairly detailed history from the appellant, in the course of which the doctor was told by the appellant that he was hearing voices when he used the knife to attack his victim. Dr Westmore opined that the appellant demonstrated "what I believe to be psychotic thought processes, specifically delusional beliefs and he describes auditory hallucinations." 9 Dr Westmore reached the following conclusions as expressed in his report: "He said he believes the victim in this matter has spiritually killed Mr Williams father. He said he confronted the victim with a knife, he used the knife to threaten the victim, he wanted to make the victim talk more. He talks about receiving spiritual messages from others, he believes he has worked previously with the police in solving crimes of a serious nature and that he has some type of communicational relationship with the police commissioner and a prominent aboriginal magistrate. Your client is suffering from a psychotic disorder, most likely of a schizophrenic type. On the history he provides he was mentally ill at the time the offending behaviour occurred and he would be eligible for consideration for a mental illness defence. His mental illness was such that it would have totally deprived him of the capacity to know that he ought not to do the act. The illness is, I believe, a schizophrenic one." 10 Dr Neilssen made his examination and assessment of the appellant on 12 April 2001. The appellant told Dr Neilssen that the victim of his attack "challenged me spiritually a lot of times." The appellant reported to Dr Nielssen "ongoing telepathic communications and auditory hallucinations of voices". Dr Nielssen diagnosed the appellant as suffering from "chronic treatment resistant schizophrenia." 11 I quote from the conclusions expressed in Dr Nielssen's report: "I believe Mr Williams has the defence of mental illness open to him. His belief that the victim was subjecting him to spiritual assault, as a result of the symptoms of schizophrenia, deprived him of the ability to recognise that attacking Mr Henderson was wrong… However, Mr Williams' lack of insight regarding his mental illness renders him unable to instruct his legal representatives to use the obvious defence to the charges. Mr Williams made it clear that he did not want to raise the issue of mental illness, either as a defence, or in mitigation." 12 A number of letters which the appellant had written were also introduced into evidence at the November hearing. Each of these letters commenced with the assertion: "I work with the police", and the content of the letters generally appeared to be indicative of mental illness. 13 Having considered the evidence reviewed, the jury returned with a verdict of not guilty on the ground of mental illness. The trial judge thereupon ordered that the appellant be detained in strict custody in such place in a psychiatric hospital as may be determined pursuant to the Mental Health Act. I observe that, having regard to the jury's finding, the trial judge had no alternative but to make that order because of the mandatory wording of s 39 of the Mental Health (Criminal Procedure) Act as the section was then expressed: see Stephens [1999] NSWSC 811. 14 In written submissions presented by the Crown before the hearing of the appeal the point was taken that the appeal was incompetent having regard to s 5 of the Criminal Appeal Act. Section 5 of the Criminal Appeal Act affords to a person "convicted on indictment" an opportunity to appeal: "(1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction." 15 Section 5(2) specifically addresses the position of a person acquitted on the ground of mental illness: "(2) 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." (Emphasis added) 16 The transcript of proceedings in the District Court on 6 November 2001 makes it clear that the defence of mental illness was raised on behalf of the appellant. The trial judge asked counsel for the appellant the following question and was given the following response (AB 24): "HIS HONOUR: Q. Is there to be any issue, Mr O'Connor, of mental illness as a defence? O'CONNOR: A. Yes, your Honour, there is." 17 In the conduct of the trial, the evidence of Dr Westmore was then introduced. 18 Generally, where an accused person sets up a defence of mental illness and in consequence a special verdict of not guilty on the ground of mental illness is returned, no appeal lies against such a verdict: see Greig (1996) 89 A Crim R 254 and Logan [2004] NSWCCA 101. However, the thrust of the appellant's appeal is that his lawyer, named in ground 1 of his grounds of appeal, acted contrary to his instructions. To address the issue thus raised, the Crown called four witnesses. Ms Mainprize, Mr Carty and Mr Hamblin were at various stages relevant to this matter employed by the Kamilaroi Aboriginal Legal Service. In such capacity each of these witnesses acted as solicitor for the appellant. The Crown also called Mr O'Connor of counsel who appeared for the appellant at each of the hearings in the District Court at Inverell. 19 It is unnecessary to review the evidence of any one of these witnesses in detail. Clearly, those acting for the appellant considered it to be in his best interests that the issue of mental illness should be raised. The finding by the jury in April 2001 that the appellant was unfit to stand trial placed his counsel and his solicitor in an invidious position when it came to determining how best to proceed at the special hearing in the following November because of the difficulty in obtaining the appellant's instructions. By November 2001 Mr Hamblin was the solicitor instructing counsel. Both Mr Hamblin and Mr O'Connor appreciated that the appellant did not wish to raise the issue of mental illness and that what he wanted to do was to dispute the charge on the basis that he intended to do no more than to frighten his victim. Clearly Mr O'Connor and Mr Hamblin perceived it to be in the appellant's best interests to raise the issue of mental illness as a defence, but it is also clear that the appellant gave no instructions for this to be done. 20 In my opinion, counsel and each of the appellant's solicitors from whom this Court received evidence acted responsibly in the manner in which they represented the appellant. However, having considered all the evidence, it does not seem to me that this is a case in which mental illness "was set up as a defence by" the appellant within the meaning of s 5(2). Rather that defence was set up for him. Having regard to the evidence which the Crown introduced, the Crown did not persist with the written submission that the appeal was incompetent under s 5(2) of the Criminal Appeal Act, acknowledging the circumstances of this case to be distinguishable from those in Logan (supra). 21 However, the Crown submitted that the appeal should nevertheless be dismissed because of the significance of the evidence as to the appellant's mental illness and having regard to the language of s 7(4) of the Criminal Appeal Act. That sub-section is in these terms: "(4) 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 or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate." 22 The appellant has submitted that he only wanted to frighten his victim. However, his actions as described by the witnesses whose evidence I earlier reviewed were altogether inconsistent with the existence of that less serious intent for which the appellant would seek to contend. Had the appellant not had available to him the defence of mental illness, the evidence against him would have firmly supported all the elements of the crime charged in the indictment. 23 However, the evidence adduced at the special hearing and available for consideration in this Court clearly attracts consideration of s 7(4) of the Criminal Appeal Act. That evidence establishes that the appellant was mentally ill when he attacked his victim so as not to be responsible for his actions at the time of that attack. 24 If this Court was now to set aside the special verdict which the jury returned on the ground that the appellant gave no instruction for the defence of mental illness to be raised, it would be appropriate for this Court to act in accordance with s 7(4) to make precisely the same order as the judge presiding at the special hearing. Indeed, on my assessment of the available evidence, no other order would be proper in the event that this Court first quashed the orders made below. 25 In these circumstances, I am of the opinion that this appeal should be dismissed and that is the order I propose. 26 DUNFORD J: I agree with Studdert J. 27 HOWIE J: I agree that the appeal should be dismissed for the reasons given by Studdert J. ********** Last Modified: 07/08/2004 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.