Attorney-General v Kamali [1999] QCA 219 (1999) 106 A Crim R 269

IN THE COURT OF APPEAL 99.219 SUPREME COURT OF QUEENSLAND C.A. No. 47 of 1999 Brisbane [A-G v. Kamali] BETWEEN: THE ATTORNEY GENERAL OF QUEENSLAND Appellant AND: YVES KAMALI Respondent PURSUANT TO A DETERMINATION UNDER THE MENTAL HEALTH ACT 1974 de Jersey CJ Thomas JA Demack J Judgment delivered 15 June 1999 Judgment of the Court. APPEAL DISMISSED. CATCHWORDS: CRIMINAL LAW - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY - Attorney General's appeal against finding of unsoundness of mind by Mental Health Tribunal - accused charged with, inter alia, rape and deprivation of liberty - accused ordered to be detained as a restricted patient under Mental Health Act 1974 MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY - whether reasons of Mental Health -- 1 of 11 -- 2 Tribunal sufficient - whether finding of unsoundness of mind against weight of the evidence - whether the Tribunal attributed inappropriate weight to "evidence" given by assisting psychiatrists in absence of the parties - whether the Tribunal erred in considering a "but for" test Mental Health Act 1974, ss 28B, 28D, 33, 43A(3)(b) Criminal Code 1889 s 27 Cypressvale Pty Ltd v. Retail Shop Leases Tribunal [1996] 2 Qd R 462 Suncorp Insurance and Finance v. Hill (CA No. 2029 of 1997, unreported, 29 May 1998) R v. Schafferius [1987] 1 Qd R 381 Richardson v. Redpath, Brown & Co. Ltd [1944] AC 62 The Beryl (1884) 9 PD 137 Counsel: Mr M Byrne QC for the appellant. Mr R V Hanson QC, with him Mr J J Thompson for the respondent. Solicitors: Director of Public Prosecutions (Queensland) for the appellant. Legal Aid Queensland for the respondent. Hearing Date: 2 June 1999 -- 2 of 11 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 47 of 1999 Brisbane Before de Jersey CJ Thomas JA Demack J [A-G v. Kamali] BETWEEN: THE ATTORNEY GENERAL OF QUEENSLAND Appellant AND: YVES KAMALI Respondent PURSUANT TO A DETERMINATION UNDER THE MENTAL HEALTH ACT 1974 REASONS FOR JUDGMENT - THE COURT Judgment delivered 15 June 1999 1 The respondent is a 28 year old man who was charged with numerous offences committed between mid October and mid December 1997. They included rape, attempted rape, indecent assault, assault to commit rape, deprivation of liberty, 29 counts of fraud, 27 counts of forgery, 27 counts of uttering and 8 counts of stealing. The respondent’s legal adviser referred the matter of his mental condition to the Mental Health Tribunal under s.28D of the Mental Health Act 1974. The Tribunal conducted a hearing, in the course of which it -- 3 of 11 -- 4 received reports from three psychiatrists, Doctors Fama and Varghese and Professor Yellowlees, each of whom also gave oral evidence. Having heard submissions, the learned judge constituting the Tribunal found that at the time of the commission of alleged offence, the respondent was suffering from unsoundness of mind and ordered that he be detained as a restricted patient under the Act. 2 The Honourable the Attorney General appeals, exercising the right of appeal established by s.43A(3)(b) of the Act. Although the Act is silent as to the nature of the appeal, it is accepted that the usual position applies, that is, that it is an appeal by way of rehearing based on the record before the Tribunal. There are four grounds of appeal: “1. The Tribunal failed to give sufficient reasons for the findings critical to its determination. 2. The finding of the Tribunal that the respondent was suffering from unsoundness of mind was against the weight of the evidence. 3. The Tribunal gave inappropriate weight to the inadmissible advice, seemingly given to it, in the absence of the parties, by the doctors assisting the Tribunal. 4. The Tribunal erred in having regard to what is called the ‘but for’ test in determining that the respondent was of unsound mind.” 3 The Tribunal is constituted by s.28B of the Act. It consists of a judge of the Supreme Court “who in the exercise of the Tribunal’s jurisdiction shall be assisted by two psychiatrists” (sub-s 2). The two psychiatrists are not however a constituent part of the Tribunal (sub-s 2A). Section 28D provides that “where there is reasonable cause to believe that a person alleged to have committed an indictable offence was mentally ill at the time the alleged offence was committed” that person’s legal adviser (among others) may refer to the Tribunal “the matter of the person’s mental condition” for the Tribunal’s consideration and determination. Section 33 obliges the Tribunal to “inquire and determine whether the person was, at the time the alleged offence was committed, suffering from unsoundness of mind”. The term “unsoundness of mind” is defined by s 28A to mean “that state of mental disease or natural mental infirmity -- 4 of 11 -- 5 described in s 27 of the Criminal Code”. As relevant to this case, s 27(1) of the Code refers to “such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission”. 4 All three psychiatrists who gave evidence before the Tribunal were of the view that during the period covered by the offences, though not necessarily continuously, the respondent was suffering from bi-polar affective disorder, and that but for the effects of that disorder, the respondent would not have committed the offences. That disorder amounts to mental disease or infirmity within s 27 of the Code. The three psychiatrists differed, however, as to the extent of any related diminution or deprivation of capacity. 5 Dr Fama regarded it as a “borderline case” between total deprivation on the one hand, and diminution on the other, and quantified the extent of diminution of capacity at 75 percent. He related the diminution to the capacity to control his actions, and the capacity to know that he ought not to do the relevant acts. The other two doctors, Dr Varghese and Professor Yellowlees, were satisfied that the respondent was deprived of relevant capacities, in the case of Dr Varghese, the capacity to know he ought not to do the acts and to a substantial extent the capacity to control actions, and, and in the case of Professor Yellowlees, the capacity to control. 6 The reasons given by the learned judge were not lengthy, and because their sufficiency is challenged, it is convenient that they be set out: “It appears from the evidence put before the Tribunal that the patient suffers from bi-polar affective disorder and that in the second half of last year, in particular in the period during which the offences were committed, he was manic or at least hypomanic. It is accepted by the three eminent psychiatrists who have given evidence that but for his bi-polar affective disorder he would not have committed these offences. He is, when not affected by the disease, of sound personality. He is industrious, -- 5 of 11 -- 6 law-abiding, a respectful and perhaps deferential man who has suffered a great deal in his past but has coped with it extremely well. The offences and the criminal behaviour manifested by them is completely out of character. The task facing the Tribunal has been a difficult one because it raises in acute form the need to find, before the Tribunal can declare that at the time the offences were committed the patient was suffering from unsoundness of mind, that he was deprived of one of the capacities mentioned in s.27 of the Criminal Code, that is, the capacity to control his actions or the capacity to know what he was doing at the time the offences were committed or the capacity to know that he ought not to do the things which constituted the offences. The fineness of the point in debate can be understood by this recital: Professor Yellowlees and Dr Varghese are of the opinion that the patient was deprived of one of the relevant capacities though they differ as to the identity of which one. Dr Fama takes the view that the patient had substantial impairment to the capacity to control his actions and perhaps the capacity to understand that he ought not to have done the things he did but finds that there was not that total deprivation of capacity which is required by s 27. Dr Fama concedes that the impairment was substantial and in an attempt to help the Tribunal suggested that about three-quarters of the capacity was lost. The measurement, of course, cannot be precise and was not intended to be exact but it shows how difficult is the task facing the psychiatrists and facing this Tribunal. Now, in a matter of this kind, I place particular reliance upon the advice given me by Dr Wood and by Dr Dodds. They are of the view that the evidence establishes that at the times of the offences the patient was deprived of the capacity to control his actions and for much of the period he would have been deprived of the capacity to know that he ought not to have done the things he did. I agree that the evidence supports such a finding. I am enforced in that view, as I say, by the advice to me to that effect. It is, I think, significant that it is accepted on all sides that but for the effects of the bi-polar affective disorder the patient would not have behaved as he did and would not have committed the offences. It is, I think, also accepted by the doctors that he lacked insight during the period he was affected by the disorder. It therefore seems to me to follow that he was deprived of the capacities referred to in s 27, in particular, that of control, and I would think of the capacity to know that he ought not to do what he did.” 7 The extent of a court’s obligation to provide detailed reasons for judgment was considered in Cypressvale Pty Ltd v. Retail Shop Leases Tribunal [1996] 2 Qd R 462 and again more recently in Suncorp Insurance and Finance v. Hill (CA No. 2029 of 1997, unreported, 29 May 1998). The latter judgment repeated this passage from what was said by -- 6 of 11 -- 7 Fitzgerald P in Cypressvale (pages 476-7): “The broad principle deducible from the cases is that the decision-maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made ... There have been many attempts to elaborate: indicating for example the need for findings of fact, usually related at least in broad terms to the evidence on which each finding is based, and an explanation of the reasoning process: vague general statements or unexplained conclusions are not sufficient: ...” 8 These reasons were challenged as being unduly “broad brush” in approach, and especially for containing no explanation why the conclusions of Dr Fama were rejected. It was not necessary for the judge to explain particularly why he rejected the views of Dr Fama. That rejection followed from his expressed preference for the views of the other doctors, which he did explain. The judge referred to the base significance of the disorder, as explaining why the conduct occurred; he acknowledged with particularity the extent of the difference between the doctors; he characterised the point to be resolved as “fine”; he noted the substantial impairment (75 percent) which Dr Fama identified; and he indicated the support which the view of deprivation expressed by Dr Varghese and Professor Yellowlees gained from the assisting psychiatrists. He then said, obviously with reference particularly to the evidence of the latter two doctors, that the evidence supported a finding of deprivation. The judge did thereby sufficiently disclose his process of reasoning. 9 The second ground of appeal is that the finding of unsoundness of mind was against the weight of the evidence. Mr Byrne QC, who appeared for the appellant Attorney, conceded that there was evidence on which the finding could be based. There plainly was, as to lack of capacity to control in the evidence of Professor Yellowlees, and as to deprivation of the capacity to know that he ought not to do the act, in the evidence of Dr Varghese. But in light of the suggested qualification of those views emerging from cross-examination, and in the context of differences of opinion between those two doctors and with Dr Fama, Mr Byrne -- 7 of 11 -- 8 submitted that there was no “clear and convincing evidence” (R v. Schafferius [1987] 1 Qd R 381, 383) sufficient to base the finding of unsoundness of mind. The standard of proof in these matters is on the balance of probabilities with the Briginshaw qualification, as confirmed in Schafferius. Schafferius should not be read as excluding a finding in all but the clearest of cases. Certainly the gravity of such proceedings warrants the Tribunal’s exercising caution. But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept. 10 It is necessary to refer to the suggested qualification of view arising in the course of cross-examination. First, as to deprivation of the capacity to control, Professor Yellowlees said this in his report: “I believe that for certainly much of the second half of 1997 Mr Kamali was suffering from “unsoundness of mind” as understood by s 28A of the Mental Health Act 1974 in that, because of his bipolar disorder, I believe that for much of this time he was deprived of the capacity to control his actions.” Professor Yellowlees was pressed during oral examination with whether he could attribute that condition to the times of commission of all of the respective offences. The following passages in the evidence relate to this: “Why do you say that in each of the cases that he has committed a criminal offence then he is not in control at that time?.. Obviously I have not gone through every single offence ... And as you are aware at the time that I saw him he was denying that he had been ... involved in the rape situation... I think the reality is you do have to take the balance of probabilities and that people do remain high consistently for periods of time. His behaviour was very out of character and I guess I take the view that given his behaviour was so out of character, that he was so easily caught in those situations, that he was quite simple in his - in his criminal actions, and given his - his intelligence, that that was very out of a very unreasonable amount of character and therefore the assumption would be that it was his illness that was driving him during his activity. ... So it may be, may it not, that at any point in time he may be at that time in control -- 8 of 11 -- 9 of his actions? ... I mean, that is possible to say, but given that he had so many offences in a consistent period of time, I think the balance of probability is that for certainly the majority of those offences he was unable to control himself. It’s possible that he was able to control himself in certain situations. You and I will never know that, quite honestly, and I guess I’m just trying to take a global perspective over the length of time that he was unwell. ... HIS HONOUR: Professor, is it no more than a guess or intuition where you draw the line between impairment and deprivation in this sort of case?...I think that’s true, yes, and I guess that’s why I found the most interesting and effective documentation to be the deposition by Mr Burgess who is a barrister who clearly had known him very well for a long period of time and who found him to be so totally different. So if you have someone who (is) not in the manic phase is law abiding, honest, reliable, polite, deferential and then you find in a time of mania committing substantial numbers of offences of dishonesty and ... violence even, is it in your view then, a fair inference to say he must have lost control?-- Yes, it is, yes.” That was amply sufficient safely to justify the conclusion that at the time of commission of the alleged offences, the respondent was deprived of the capacity to control his actions. 11 Second, as to deprivation of the capacity to know that the respondent ought not to do the acts, we were referred to passages in the oral evidence where, it was suggested, Dr Varghese conceded “difficulties” about his view. In those passages, the doctor is to be taken as acknowledging that others may take a different view. Some of them involve debate with counsel. But as Mr Byrne was prepared to confirm, Dr Varghese was not to be taken as resiling from the view he expressed on this matter. 12 The third ground challenges the role apparently played by the assisting psychiatrists. The Act provides simply that although the psychiatrists do not constitute part of the Tribunal, they are to assist the judge to exercise the Tribunal’s jurisdiction. The psychiatrists are given that role obviously because of an expectation that their particular expertise in the field should be helpful to the judge. In this case, they have apparently advised the judge of their preference for the views he ultimately accepted based on the evidence of Dr Varghese and Professor Yellowlees. It is not to be seen as a case where the judge has relied on “evidence” given to -- 9 of 11 -- 10 him privately in the absence of the parties, by the assisting psychiatrists, rather than upon the evidence given during the hearing. Indeed what the judge said - “I agree that the evidence supports such a finding” - is inconsistent with any such suggestion. The requirements of natural justice would obviously exclude a judge’s acting on something tantamount to evidence of primary facts or of a new line of argument that had not been tested, if it were communicated privately to the judge and not brought to the attention of the parties. But the requirement that the two psychiatrists “assist” the judge will often involve their expressing views to the judge about the evidence which has been given before the Tribunal. Often they will highlight those views, or the possibility of them, through questions they themselves ask, with the judge’s leave, of the witnesses during the hearing. Of course if the psychiatrists were to inform the judge of a view which might take the parties by surprise, and which the judge felt might be influential in the resolution of the case, then the judge would ordinarily bring that view to the attention of the parties for any further submission before proceeding further. What occurred here could not reasonably be criticised. 13 Viscount Simon LC in Richardson v. Redpath, Brown & Co Ltd [1944] A.C. 62, 70 helpfully delineated the role of medical assessors in comparable circumstances, in the following passage: “But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.” See also The Beryl (1884) 9 PD 137, 141. -- 10 of 11 -- 11 14 Perfectly plainly in this case, the assisting psychiatrists have helped the judge in his approach to “the difference between apparently contradictory conclusions in the expert field”, to assist the judge in his “understanding (of) the effect and meaning of technical evidence”. 15 As to the fourth ground of appeal, Mr Byrne’s contention was that “a ‘but for’ test can have no relevance as it is equally open to apply to a person whose capacities were diminished by a disease of the mind without being deprived”. Certainly this approach could not be determinative of the issue of deprivation of one of the relevant capacities. But the learned judge did not approach the matter in that way. He said: “It is, I think, significant that it is accepted on all sides that but for the effects of the bipolar affective disorder the patient would not have behaved as he did and would not have committed the offences.” Though not determinative, that was a relevant (and “significant”) base consideration, or “starting point”, from which the judge proceeded to resolve separately the issue of deprivation or partial impairment for which, with the encouragement of the assisting psychiatrists, he had recourse to the evidence of Dr Varghese and Professor Yellowlees. There was no flaw in the judge’s approach. 16 The appeal should be dismissed. -- 11 of 11 --