R v Fraser [2003] NSWSC 965

New South Wales Supreme Court

CITATION : R v Fraser [2003] NSWSC 965 HEARING DATE(S) : 24/10/2003 JUDGMENT DATE : 27 October 2003

JUDGMENT OF : Howie J at 1 DECISION : The Crown is directed to call evidence of Dr Skinner in its case and not in reply.

CATCHWORDS : Criminal Law and Procedure - Practice and Procedure - Course of evidence - Crown witness to rebut defence under s 23A of Crimes Act - direction sought under s151(3) of the Criminal Procedure Act - relevant considerations. Crimes Act 1900 - ss 23A, 405A(4), 428A LEGISLATION CITED : Criminal Procedure Act 1986 - ss 150(5), 151(3) Evidence Act (QLD) Shaw v The Queen (1952) 85 CLR 365 Killick v The Queen (1981)) 147 CLR 565 The Queen v Chin (1985) 175 CLR 671 Lawrence v R (1981) 38 ALR 38 CASES CITED : Soma v The Queen (2003) 77 ALJR 849 Melbourne v The Queen (1999) 198 CLR 1 Niven v The Queen (1968) 118 CLR 513 Blewitt v The Queen (1988) 62 ALJR 503 Heuston (1966) A Crim R 213 PARTIES : Regina v Steven Anthony Fraser FILE NUMBER(S) : SC 70013/03 COUNSEL : M. Tedeschi QC with J. Cash - Crown J. Stratton SC with G. Ikners - Accused SOLICITORS : C.K. Smith - Crown D.C. Chambers & Associates - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUSTICE HOWIE

MONDAY 27 OCTOBER 2003

70013/03 REGINA v STEVEN ANTHONY FRASER

JUDGMENT 1 His Honour: These are my reasons for directing the Crown to call evidence of a witness, Dr Skinner, in its case and not in reply. 2 The accused, Stephen Anthony Fraser, stands trial on three counts of murder, the victims in each of the charges being one of his three young children. When he was arraigned before the jury panel, the accused pleaded not guilty to each count of murder but guilty to manslaughter. The Crown refused to accept those pleas in full discharge of the indictment. The jury was then empanelled and the trial on the counts of murder proceeded. 3 In his opening to the jury the Crown Prosecutor stated that he anticipated that the real issue in the trial would be the accused's claim that, at the time of the killing of each of his three children, he was substantially impaired by reason of an abnormality of mind arising from an underlying condition. This is a defence to a charge of murder under s 23A of the Crimes Act. 4 Defence counsel, Mr Stratton SC, in his opening to the jury told them that, by his pleas of guilty to manslaughter, the accused accepted legal and moral responsibility for the deaths of the children but asked that the jury find him guilty of manslaughter on the basis of the defence of substantial impairment. 5 It is clear, from not only the opening addresses but also the manner in which the trial has been conducted, that the only issue before the jury is whether the accused has proved, on the balance of probabilities, the defence contained in s 23A. The evidence as to the accused's mental state at the time of the killing of the three children is not significantly in issue and there is no dispute that at the time that the accused killed each of the children he intended to do so. Therefore, but for the defence of substantial impairment being established by the accused, he would be guilty of the three counts of murder alleged against him. 6 The question that arose for my determination was whether the Crown should call its evidence to rebut the defence in the Crown case or in reply to the defence case. As I understood the situation, it was the intention of the defence that the accused would not give evidence himself, but would adduce evidence from a psychiatrist, Dr Westmore, in support of the defence under s 23A. The Crown had indicated that it intended to call evidence from a psychiatrist, Dr Skinner, to rebut the evidence that it expected Dr Westmore to give. 7 Both psychiatrists have reached the opinion the accused suffered from a personality disorder at the time of the killing of his children, but there is a dispute as to the affect of that disorder upon the his mental processes at the time of the killing. There is a complicating factor in that the accused consumed both alcohol and prescribed drugs in order to be able to bring himself to kill his children. Section 23A(3) states: