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Court of Criminal Appeal 4 August 2000

REGINA v CHEATHAM

[2000] NSWCCA 282

Homicide
CRIMINAL LAW DEFENCES INSANITY SECOND LIMB OF THE M’NAGHTEN TEST CRIMINAL LAW DEFENCES

Citation: Regina v Cheatham [2000] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 4 August 2000
Judge(s): Spigelman CJ, James J, Sperling J

Background

The appellant was convicted by a jury of two counts of murder and one count of attempted murder following the killing of his wife and older daughter, and the attempted killing of his infant daughter. The appellant's case at trial was that he believed, delusionally, that he was dying of AIDS and had infected his family, and that killing them was a merciful act. The sole issue at trial was the defence of insanity.

Two psychiatrists gave evidence for the appellant to support the insanity defence, and one psychiatrist gave evidence for the Crown in reply. The jury rejected the insanity defence and returned guilty verdicts on all three counts. Newman J sentenced the appellant to significant terms of imprisonment.

The appellant appealed on multiple grounds: that the trial judge inadequately explained the second limb of the M'Naghten test to the jury, that the judge's questioning of an expert witness denied him a fair trial, that the judge was obliged to leave diminished responsibility to the jury, that the verdicts were unreasonable, and that fresh evidence warranted the verdicts being quashed.

  • Whether the trial judge's directions on the second limb of the M'Naghten insanity test (that the accused did not know that what he was doing was wrong) were adequate
  • Whether the trial judge's intervention in questioning an expert witness amounted to a miscarriage of justice
  • Whether the trial judge was obliged, of his own motion, to direct the jury on diminished responsibility under section 23A of the Crimes Act 1900, even though the defence had not argued that ground at trial
  • Whether the guilty verdicts were unreasonable and unsupported by the evidence
  • Whether fresh psychiatric evidence warranted the verdicts being quashed

Decision

On the insanity direction, the Court of Criminal Appeal found no error. The evidence that the appellant suffered from a disease of the mind had been put before the jury with sufficient clarity by the expert witnesses, and did not require further elaboration by the trial judge. The trial judge's direction on the second limb of the M'Naghten test was held to be correct.

On judicial intervention, the Court found that the trial judge's questioning of one of the expert witnesses did not cause a miscarriage of justice. The trial judge had expressly directed the jury to disregard any apparent opinion he may have revealed through that questioning, and in the circumstances that direction was adequate.

The critical ground was the failure to direct on diminished responsibility. The Court confirmed that a trial judge carries an independent obligation, in certain circumstances, to direct the jury on available defences to prevent a miscarriage of justice, regardless of whether the accused has raised those defences. A finding of diminished responsibility was reasonably open on the evidence before the jury. The trial judge's failure to direct the jury on that issue constituted a miscarriage of justice, even though the appellant had not argued it at trial.

On the remaining grounds, the Court held that the jury was entitled to reject the insanity defence on the evidence before it, and that the fresh psychiatric evidence from two additional experts did not materially differ from the opinions already placed before the jury. There was no significant possibility that the fresh evidence, if placed before a jury, would produce an acquittal or a reasonable doubt as to guilt.

Orders Made

  • Appeal allowed
  • A new trial to be held

Key Takeaways

  • A trial judge bears an independent obligation to direct the jury on a defence, such as diminished responsibility, where a finding in favour of that defence is reasonably open on the evidence, even if the accused did not raise or argue it at trial. Failure to do so can constitute a miscarriage of justice.
  • Under section 23A of the Crimes Act 1900, the diminished responsibility direction was required here because the expert psychiatric evidence made such a finding reasonably available to the jury.
  • Adequate expert evidence on a point relevant to mental state defences does not automatically require the trial judge to repeat or elaborate on that evidence in summing up, provided the jury had sufficient access to it through the trial process.
  • Judicial questioning of an expert witness does not necessarily deprive an accused of a fair trial, particularly where the trial judge expressly directs the jury to disregard any view the questioning may have revealed.
  • Fresh evidence consisting of additional psychiatric opinions will not warrant setting aside a verdict where those opinions do not materially differ from psychiatric evidence already before the jury, and where there is no significant possibility that a jury would acquit on the basis of the new material.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (diminished responsibility)
- Crimes Amendment (Diminished Responsibility) Act 1997 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Pemble v The Queen (1971) 124 CLR 107
- The King v Porter (1933) 55 CLR 182
- Stapleton v The Queen (1952) 86 CLR 358
- Gallagher v The Queen (1986) 160 CLR 392
- Mickleberg v The Queen (1988-1989) 167 CLR 259
- R v Ayoub [1984] 2 NSWLR 511
- R v Birks (1990) 19 NSWLR 677
- R v Ion (1996) 89 A Crim R 81
- R v Gomaa (Supreme Court of NSW, Badgery-Parker J, 27 April 1994, unreported)
- R v Hemsley (Court of Criminal Appeal, 8 December 1995, unreported)
- R v Wilson (Court of Criminal Appeal, 7 March 1995, unreported)
- R v Clewer (1953) 37 Cr App R 37
- Galea v Galea (1990) 19 NSWLR 263
- Yuill v Yuill [1945] 1 All ER 183
- GIO (NSW) v Glasscock (1991) 13 MVR 521