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7
Court of Criminal Appeal 26 March 2014

Goodridge v R

[2014] NSWCCA 37

Homicide
CRIMINAL LAW CONVICTION APPEAL APPELLANT UNFIT TO BE TRIED SPECIAL HEARING BEFORE JUDGE ALONE OFFENCE OF MURDER REPORTS FROM TWO PSYCHIATRISTS

Citation: Goodridge v R [2014] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 26 March 2014
Judges: Hoeben CJ at CL; Simpson J; Johnson J

Background

The appellant was found unfit to be tried for the murder of a woman at a disused railway barracks in Moss Vale in May 2009. Following a determination by the Mental Health Review Tribunal that he would remain unfit, the matter proceeded as a "special hearing" before Adamson J, sitting alone without a jury, under the Mental Health (Forensic Provisions) Act 1990.

At the special hearing, no witnesses were called by either party. The Crown brief was tendered by consent, together with psychiatric reports from two forensic psychiatrists and a psychologist. Both psychiatrists diagnosed the appellant with acquired brain injury and concluded that his capacity was substantially impaired at the time of the offence. Critically, neither psychiatrist had been shown the audio-visual recordings of two lengthy police interviews (ERISPs) conducted with the appellant within two days of the offence, nor lay witness statements from the period.

Adamson J returned a verdict that the appellant had, on the limited evidence available, committed the offence of murder. Her Honour found that the partial defence of substantial impairment by abnormality of mind had not been established on the balance of probabilities. An 18-year limiting term was nominated. The appellant challenged both the verdict and the sentence on appeal.

  • Whether the verdict was unreasonable and unsupported by the evidence, given that two psychiatrists gave unanimous opinions in favour of substantial impairment.
  • Whether the trial judge erred by departing from unanimous expert opinion without directing herself that such a departure required contradictory, persuasive evidence.
  • Whether there was a miscarriage of justice because the trial judge failed to warn the parties of her intention to reject the expert evidence and to invite them to provide the psychiatrists with further material or call further evidence.
  • Whether the 18-year limiting term was manifestly excessive.

Decision

Ground 1: Unreasonable verdict. The Court of Criminal Appeal found the verdict was not unreasonable. The trial judge had access to five hours of ERIP recordings taken within two days of the offence, as well as lay witness accounts describing the appellant's behaviour before and after the killing. This material showed a level of cognitive coherence and purposeful conduct that the psychiatrists had not had the opportunity to assess. The Court accepted that the psychiatric opinions were seriously undermined by the failure to make the ERISPs available to the experts, and that the trial judge was entitled to treat the opinions accordingly.

Ground 2: Rejection of unanimous expert evidence. The Court confirmed the applicable principle: a judge may decline to accept expert opinion that is unanimous, but only where there is other persuasive evidence that contradicts it or renders it unreliable. Here, Adamson J correctly identified the ERISPs and lay evidence as providing that basis. The Court found her Honour's analysis of the expert evidence was accurate and her departure from it was legally justified.

Ground 3: Procedural fairness. The Court rejected the submission that the trial judge was obliged to alert the parties that she intended to reject the expert evidence and invite them to recall or re-brief the witnesses. A special hearing is an adversarial proceeding, not an inquisitorial one. The parties had full access to the ERISPs and the lay evidence. Her Honour gave the parties adequate opportunity to address all issues, and no denial of procedural fairness was established.

Ground 4: Manifestly excessive sentence. The Court granted leave to appeal against the 18-year limiting term but dismissed the appeal. The trial judge had appropriately applied the relevant sentencing principles while giving due regard to the appellant's mental state.

Orders Made

  • Conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal dismissed.

Key Takeaways

  • A trial judge conducting a special hearing under the Mental Health (Forensic Provisions) Act 1990 may reject unanimous expert psychiatric opinion where the opinion was formed without access to significant available evidence, such as audio-visual police interview recordings, and where that material provides a persuasive basis for departing from the expert views.
  • The partial defence of substantial impairment under the Crimes Act 1900 must be established by the accused on the balance of probabilities, and a trial judge is entitled to weigh all evidence before the court, including lay and audio-visual material, not only expert reports.
  • A special hearing is an adversarial proceeding to be conducted as nearly as possible as a trial of criminal proceedings; the trial judge bears no general obligation to pause proceedings and alert parties to proposed findings or invite them to recall witnesses.
  • Johnson J emphasised that it is desirable for legal representatives on both sides to ensure that audio-visual records of police interviews are made available to forensic psychiatrists retained on issues of fitness, mental illness, and substantial impairment in murder cases.
  • In dismissing the sentence appeal, the Court confirmed that a sentencing court may take into account the mental state of an offender while still applying standard sentencing principles when nominating a limiting term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 33(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5–12, 21(1), 21(3)(c), 22(3)(c)

Cases:
- Bhuiyan v R [2009] NSWCCA 221
- Devaney v R [2012] NSWCCA 285
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Fleming v R [1998] HCA 68; 197 CLR 250
- Kurdi v R [2011] NSWCCA 179
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Madden v R [2011] NSWCCA 254
- Morris v R [1987] HCA 50; 163 CLR 454
- R v AN [2005] NSWCCA 239
- R v Hall (1988) 36 A Crim R 368
- R v Hucker [2002] NSWSC 1068
- R v Klamo [2008] VSCA 75; 18 VR 644
- R v Mailes [2004] NSWCCA 394; 62 NSWLR 181
- R v Maxwell (1998) 217 ALR 452
- R v Potts [2012] NSWCCA 229
- R v Welsh (1996) 90 A Crim R 364
- Rasic v R [2009] NSWCCA 202
- SKA v The Queen [2011] HCA 13; 243 CLR 400