Reported Decision: 169 A CRIM R 516 New South Wales Court of Criminal Appeal CITATION: Perkins v R [2007] NSWCCA 80 HEARING DATE(S): 20/03/2007 JUDGMENT DATE: 2 April 2007 JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 2; Hoeben J at 3 DECISION: Leave to admit as "fresh" evidence the report of Dr Westmore refused; Leave to appeal against sentence is granted; The appeal is dismissed CATCHWORDS: Sentence appeal - admission of "fresh" evidence - whether "fresh" evidence could have been obtained by the exercise of due diligence - whether "fresh" evidence was of such significance that the sentencing judge may have regarded it as having a real bearing upon the decision. LEGISLATION CITED: Crimes Act 1900 Gallagher v The Queen (1986) 160 CLR 392 at 395 Iglesias v Regina [2006] NSWCCA 261 R v Abou-Chabake [2004] NSWCCA 356 R v Ashton (2002) 137 A Crim R 73 R v Bailey (1988) 35 A Crim R 458 CASES CITED: R v Ehrenburg NSW CCA (unreported) 14 December 1990 R v Fordham (1997) 98 A Crim R 359 at 377 R v Goodwin (1990) 51 A Crim R 328 R v Many (1990) 51 A Crim R 54 at 61-62 R v Munday [1981] 2 NSWLR 177 at 178 Stumbles v R [2006] NSWCCA 418 PARTIES: Graham David Perkins - Applicant Crown - Respondent FILE NUMBER(S): CCA 2006/2841 COUNSEL: John Stratton SC - Applicant Ms V Lydiard - Crown SOLICITORS: SE O'Connor - Solicitor for Legal Aid Commission of NSW - Applicant S Kavanagh - Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0440 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 15/12/2005 IN THE COURT OF CRIMINAL APPEAL 2006/2841 McCLELLAN CJ at CL BARR J HOEBEN J Monday 2 April 2007 Graham David PERKINS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 BARR J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence The applicant was arrested and taken into custody on 25 April 2004. He subsequently pleaded guilty on 15 August 2005 to the following offence: That on 25 April 2004 the applicant did rob Jason Christopher Edwards of car keys and cash and immediately before the robbery maliciously inflicted actual bodily harm upon him. This offence was contrary to s95(1) Crimes Act 1900 and carried a maximum penalty of 20 years imprisonment. 4 The sentencing proceedings were heard by Freeman DCJ who passed sentence on 15 December 2005. His Honour imposed the following sentence: Imprisonment for a non-parole period of 18 months to commence on 15 December 2005 and to expire on 14 June 2007 with a balance of term of 2 years to expire on 14 June 2009. Factual background 5 The circumstances of the offence were unusual. On 25 April 2004 at about 1pm the applicant was dropped off by his sister at the East Maitland Bowling Club. He was at that time moderately affected by alcohol. Some time later, he went to the Largs Hotel and remained there for a few hours. His behaviour at the hotel was such as to excite concern on the part of employees. 6 It is alleged that the applicant asked one of the attendants whether she could assist him in scoring. The applicant denied that he was taking any illicit substances at that time although he had very little recollection of the events of the day. The applicant was heard talking to himself, saying that he thought that some other patron of the hotel was intending to kill him. When reviewing the facts his Honour remarked "It appears that he was in some sort of paranoid state even at that stage". 7 The applicant proved to be something of a nuisance to the employees of the hotel but was allowed to use the telephone to ring for a taxi. He was asked to wait for it outside but refused to do so. Ultimately he was ejected from the hotel with some degree of physical force being required. 8 From the applicant's subsequent comments it would seem that because of his state of mind he misinterpreted his ejection as a fight. In the words of his Honour "By the time he got into the taxi driven by the unfortunate victim, Mr Edwards, it appears that, if a layman may be allowed this observation, his paranoia had increased." 9 The applicant told the victim to drive off. Shortly thereafter the applicant wanted to use the taxi radio to summon the police because he said that people had flogged him and tried to choke him. The applicant then became even more excited and produced some implement with a sharp point which he pressed on a number of occasions into the victim's neck and against the back of his head. All the while he was directing the victim to alternatively drive slowly and then fast and appeared to be looking out for persons following the taxi. At one stage the applicant tried to take over the driving of the taxi in order to bring it into the path of an oncoming vehicle. 10 Finally the applicant directed the victim to stop the taxi outside a house. He then demanded the keys to the taxi, went to the house, apparently with the idea of having the inhabitants of that house, who were unknown to him, ring for the police. 11 The police did arrive because the panic button on the taxi had been pressed by the victim. The applicant was subdued and arrested. In the rear of the caged truck used by the police there was found a pocket knife with two blades and a sharp implement, together with the change bag from the taxi containing $40. 12 The victim sustained more than a dozen lacerations to his neck and head. As a result of the incident the victim developed post traumatic anxiety, which significantly affected his ability to drive his taxi. The victim had become hyper-vigilant and suffered from lack of confidence. Remarks on sentence 13 Having reviewed the facts, his Honour considered the applicant's subjective case. He noted that the applicant had been born on 29 June 1971, was aged 32 at the time of the offence and was 34 at the time sentence was passed. The applicant had a good employment history until he suffered a work accident in 2000 from which he never really recovered. In that incident the applicant suffered a serious injury to his neck and had subsequently developed significant depression. At the time of the offence the applicant was taking analgesia for his neck condition and medication for his depressive condition. 14 Although the applicant had a criminal record, his Honour did not regard it as particularly significant. It included two offences which involved violence but both offences had occurred many years before and his Honour concluded that the applicant's record was neutral. 15 His Honour noted that the applicant's offence was essentially out of character. His Honour was not prepared to find that the applicant was affected by any illicit substance. As a result of a report from Professor Starmer, a pharmacologist, his Honour did not think that the applicant's behaviour could be explained by his medication. 16 His Honour did conclude that the applicant's ingestion of alcohol (his blood alcohol level was estimated at .12) might provide a partial explanation for his conduct in that it was sufficient to lower his inhibitions. A psychologist's report, which was before his Honour, referred to the effect on the applicant's mood of his constant pain and depressive state. The psychologist was of the opinion that the applicant required a regimen of psycho-therapy to supplement the antidepressive medication which he was taking. 17 In relation to "special circumstances" his Honour said: "I have, however, found special circumstances as I indicated a moment ago, and I do propose that the additional term during which the prisoner is at conditional liberty, should be supervised for at least part of the time by the Probation and Parole Service, with an eye to monitoring his compliance with psychotherapy, and at least monitoring his involvement with drugs and alcohol, and requiring him to attend such counselling thereon as may from time to time be deemed necessary." 18 Despite those matters, having regard to the objective seriousness of the offence, his Honour felt that a period of imprisonment was inevitable and passed the sentence previously referred to. Appeal 19 Only one ground of appeal was relied on: "That a miscarriage of justice has been occasioned on the basis that the applicant was sentenced in the absence of psychiatric evidence that is now available." It is not without significance that the applicant will be eligible for parole on 14 June 2007 and that the Application for Leave to Appeal was not filed until 7 December 2006. 20 The applicant sought to adduce evidence in this Court which was not before the learned sentencing judge. It was accepted by the applicant that if this evidence was rejected, there was no other basis upon which the sentence passed by his Honour could be challenged. 21 The evidence sought to be adduced is contained in a report of Dr Bruce Westmore, psychiatrist, dated 9 October 2006. That report was prepared as a result of a video link consultation between Dr Westmore and the applicant and a review of documents by Dr Westmore. 22 On the basis of that material Dr Westmore expressed the following opinion: "In relation to the matters now before the Court he said he was taken to a hotel out of town, a place I understood he was not familiar with. He believes that his friends just left him at the hotel and he subsequently developed acute feelings of paranoia. The account he gives and the statements by various witnesses suggest that he was extremely fearful and "paranoid" at the time the incident occurred. While it is possible he had a "spiked drink" which may have precipitated an acute onset of paranoia, I think it is more likely that the acute episode of paranoia arose as a result of an underlying mental illness. I think it is likely that this man suffers from a paranoid schizophrenic illness. I note the chronic nature of his paranoid thoughts, the continuation of his paranoid perception of what occurred at the relevant time and his pre-existing paranoid personality traits/disorder. Had I seen this man at the time of the original hearing, I would have raised the possibility that he may have had a mental illness defence to the charges he faced at that time. He was suffering an acute state of paranoia which on the balance of probability would have totally deprived him of the capacity to know that he ought not have committed the act leading to the charges." 23 The applicant relied upon the three tests for the admission of fresh evidence set out in R v Goodwin (1990) 51 A Crim R 328 at 330: "What must be established is: (1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings." 24 On behalf of the applicant it was accepted that the third test had not been made out in that a psychiatric report could with due diligence have been obtained prior to the sentencing proceedings being concluded. Nevertheless, it was submitted, the "fresh" evidence should be admitted because its absence in the sentencing proceedings had resulted in a miscarriage of justice. 25 To support that proposition the applicant relied upon the following authority: "Be that as it may, whilst we are not satisfied that this material is strictly "fresh" evidence, it is not a universal and inflexible requirement that it be so." Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ. We are of the view that in the unusual and somewhat complex circumstances of this matter it is appropriate to admit this material in the interests of justice." ( R v Many (1990) 51 A Crim R 54 at 61-62). "Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice." ( R v Fordham (1997) 98 A Crim R 359 at 377) 26 The principles relating to fresh evidence were recently restated by Latham J in Stumbles v R [2006] NSWCCA 418: "7 Generally speaking, the Court will not receive evidence of events occurring after sentence has been imposed, for sound policy reasons, namely that the "review of a sentence in the light of subsequent events is the proper province of the executive government not of an appeal court": R v Munday [1981] 2 NSWLR 177 at 178 per Street CJ. 8 This general principle will, however, give way to exceptional circumstances, the nature of which may vary from case to case. There have been a number of occasions when an appellate court has allowed the reception of fresh evidence relating to the medical and/or psychiatric condition of the offender: see R v Bailey (1988) 35 A Crim R 458; R v Ehrenburg NSW CCA (unreported) 14 December 1990; R v Ashton (2002) 137 A Crim R 73; Iglesias v Regina [2006] NSWCCA 261. In all of these decisions, the special and unusual circumstances justifying departure from principle were stressed. It is also relevant to note that Ehrenburg concerned fresh evidence relating primarily to the special needs of an infant born prematurely shortly after sentence was passed, although the health of the mother (the offender) was also a factor. 9 The basis upon which the court determines the reception of such fresh evidence has been expressed in terms of the existence or effect of the relevant condition being unknown or not fully appreciated at the time sentence was passed: Bailey ; Ehrenburg. In this respect, the rationale is consistent with those decisions dealing with the reception of fresh evidence after trial and conviction, a number of which were examined by Kirby J in R v Abou-Chabake [2004] NSWCCA 356 at [63]; (cited with approval by Simpson J in R v Poole [2006] NSWCCA 93. In short, fresh evidence is evidence not available to the applicant at the time of sentence, actually or constructively. Evidence is constructively unavailable if it could not have been discovered or is not available by the exercise of due diligence." 27 It should also be noted that immediately before the quotation from R v Fordham relied upon by the applicant, Howie J said: "Absent sentencing error which requires the court to represent an appellant, this Court should, in my view, resist attempts to place before it material which was not before the sentencing judge. Simply because the legal representatives of an appellant (very often not the particular solicitor and barrister who acted for the appellant at the hearing on sentence) feel that some aspect of the personal circumstances of the appellant was not properly investigated and, therefore, not placed before the sentencing judge, or because they consider that more attention should have been given to some subjective factor than was paid to it by the legal representatives of the appellant at the sentencing hearing, it should not generally follow that a proper basis has been made out for this Court to receive such material. Those representing an accused person before the trial court have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion: Birks at 683-685; 490-492. I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does in the actual trial." ( R v Fordham (1997) 98 A Crim R 359 at 377.) 28 As was properly conceded on behalf of the applicant in oral submissions, it could not be said that evidence of the kind set out in the report of Dr Westmore "could not have been discovered or was not available with the exercise of due diligence". The somewhat bizarre circumstances surrounding the offence cried out for some kind of psychological or psychiatric comment. 29 This was clearly appreciated by the applicant's legal advisers at the time. It was for that reason that evidence was placed before the court from the orthopaedic specialist treating the applicant in respect of his neck condition and from a psychologist who was aware of the history of the offence and who had examined the applicant. Those reports refer to the applicant's nervous tension and depression and their effect on the applicant's mood. 30 It is clear that his Honour had regard to that evidence in formulating the sentence and that his Honour accepted that the conduct was out of character and influenced at least in part by his substantial consumption of alcohol. On more than one occasion in his remarks on sentence, his Honour referred to the applicant's paranoid state at the time. His Honour had reached that conclusion on the basis of the material before him, even though no specific diagnosis had been made. 31 It is against that background that one needs to consider the "fresh" evidence which it is now proposed should be placed before the Court. 32 I do not regard the content of Dr Westmore's report to be so significant that it might have materially influenced the sentencing judge. Taken at its highest, the report merely expands the very matters which were referred to by his Honour in his remarks on sentence. The primary proposition put forward by Dr Westmore was an opinion that at the time of the offences there was a possibility that the applicant may have had a mental illness defence to the charge which he faced. The other expressions of opinion flow from that possibility. 33 As indicated, it is clear from his Honour's remarks that even without a report from a psychiatrist identifying a possible mental illness, his Honour appreciated that the applicant's behaviour was highly unusual and out of character. It is clear from his Honour's remarks on sentence and from the sentence ultimately passed that his Honour not only took into account those matters but gave them considerable weight. The absence of a psychiatric opinion such as that of Dr Westmore did not result in a miscarriage of justice. 34 It follows that as well as the third test in Goodwin the applicant has also failed to make out the first test. I would refuse leave to admit the report of Dr Westmore. 35 The applicant accepts that in the absence of the "fresh" evidence there is no basis upon which this Court can interfere with the sentence. Accordingly the application for leave to appeal must fail. 36 The orders which I propose are as follows: (1) Leave to admit as "fresh" evidence the report of Dr Westmore of 9 October 2006 is refused. (2) Leave to appeal against sentence is granted. (3) The appeal is dismissed. ********** 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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