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Supreme Court 27 October 2003

R v Fraser

[2003] NSWSC 965

Homicide
CRIMINAL LAW AND PROCEDURE PRACTICE AND PROCEDURE COURSE OF EVIDENCE RELEVANT CONSIDERATIONS.

Citation: R v Fraser [2003] NSWSC 965
Court: Supreme Court of New South Wales
Date: 27 October 2003
Judge(s): Howie J

Background

The accused stood trial on three counts of murder arising from the deaths of his three young children. When arraigned, he pleaded not guilty to murder but guilty to manslaughter. The Crown refused to accept those pleas in full discharge of the indictment, and the trial proceeded on the murder counts.

The sole issue before the jury was whether the accused had established the partial defence of substantial impairment under s 23A of the Crimes Act 1900, on the balance of probabilities. Both the Crown and the defence retained psychiatrists. Both psychiatrists accepted that the accused suffered from a personality disorder at the time of the killings, but they disagreed on the extent to which that disorder affected his mental processes. A complicating factor was the accused's ingestion of alcohol and prescription drugs before the killings, which engaged the statutory provisions disregarding self-induced intoxication when assessing substantial impairment.

The procedural question before Howie J concerned the appropriate timing for the Crown to call its psychiatrist, Dr Skinner. The Crown had already called two other expert witnesses whose evidence touched on the accused's mental state and drug use. The question was whether Dr Skinner should be called as part of the Crown's case-in-chief or held back to give evidence in reply after the defence case.

  • Whether s 23A(7) of the Crimes Act 1900 conferred a discretion on the trial judge to permit the Crown to call rebuttal psychiatric evidence in reply rather than in its own case.
  • Whether s 151(3) of the Criminal Procedure Act 1986 conferred such a direction-making power, and how that power should be exercised.
  • How the common law rule against the Crown splitting its case applied where the Crown had notice of an anticipated mental impairment defence.
  • Whether evidence already called by the Crown from two other expert witnesses was sufficient to justify directing the Crown to also call Dr Skinner in its case.

Decision

Howie J concluded, after initial argument, that s 23A(7) of the Crimes Act did not confer any discretion on the trial judge as to when the Crown could call rebuttal evidence. The relevant power was found instead in s 151(3) of the Criminal Procedure Act, which expressly provides that evidence tendered to disprove a contention of substantial impairment may, subject to any direction of the Court, be given before or after the defence evidence on that contention.

The common law cases on Crown splitting, particularly the High Court decisions in Shaw, Killick, and Chin, established that where the Crown has notice that a defence will be raised and has evidence available to rebut it, the proper course is generally to lead that evidence in the Crown case rather than in reply. Dawson J's analysis in Chin was identified as the high-water mark: the Crown should not be permitted to hold back rebutting evidence it could have called during its own case simply because the defence has not yet formally raised the issue at trial.

Howie J distinguished between evidence that incidentally touches on the substantial impairment issue and evidence that is specifically tendered to disprove it. Section 151(3) is concerned only with the latter category. The evidence of Dr Keller, called primarily on questions relating to admissions made in hospital, would not alone have justified the direction. However, Professor Starmer's evidence dealt principally with the effect of drugs consumed by the accused and was directly relevant to whether the s 23A defence was made out, going beyond what was required to prove the Crown's own case. That evidence, combined with the Crown's advance notice of the defence, made it appropriate to direct the Crown to call Dr Skinner as part of its case.

Orders Made

  • The Crown is directed to call the evidence of Dr Skinner in its case and not in reply.

Key Takeaways

  • Section 151(3) of the Criminal Procedure Act 1986 provides the statutory basis for a trial judge to direct when evidence tendered to disprove a substantial impairment contention must be called, either before or after the defence evidence on that contention.
  • The Supreme Court held that s 23A(7) of the Crimes Act 1900 does not independently confer a discretion to allow the Crown to call rebuttal evidence in reply.
  • Under the common law rule against Crown splitting, where the prosecution has notice of an anticipated defence and holds available evidence to rebut it, that evidence ordinarily should be called in the Crown case rather than reserved for reply.
  • A distinction exists between expert evidence that merely happens to touch on substantial impairment and evidence that is specifically tendered to disprove that defence. Only the latter engages s 151(3) as a trigger for a direction.
  • Where the Crown has already called expert evidence that is principally directed at rebutting the substantial impairment defence, that circumstance supports directing the Crown to call any remaining rebuttal witnesses in its case-in-chief.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 23A, 405A(4), 428A
- Criminal Procedure Act 1986 (NSW): ss 150(5), 151(3)
- Evidence Act (Qld)

Cases:
- 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
- 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