Citation: Application of Philip Spiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 1796
Court: Supreme Court of New South Wales
Date: 13 December 2016
Judge(s): Button J
Background
The applicant had been convicted in the District Court of New South Wales of serious offences arising from events in October 1997. Those events involved the abduction and sexual assault of a young woman, as well as robbery and other offences. The applicant was a married man in his early thirties at the time; the victim was an 18-year-old supermarket worker.
The applicant had been hospitalised shortly before the offences and had received medication during that admission. On this basis, his legal team advanced the argument that his actions on the day of the offences may not have been voluntary. Medical experts provided opinions suggesting he may have been in a state of automatism (a legal concept referring to conduct that is not consciously willed) caused by the effects of medication or other factors.
The applicant brought this application many years after conviction, seeking to have his convictions referred to the Court of Criminal Appeal under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). A separate ground raised concerns about the conduct of his previous legal representatives, though that ground was also tied to the voluntariness argument.
Legal Issues
- Whether the court experienced the requisite unease or sense of disquiet about the applicant's convictions, sufficient to justify referral to the Court of Criminal Appeal under s 78 and s 79 of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether the applicant's actions on the day of the offences may have been involuntary, consistent with a state of automatism induced by medication or other causes
- Whether the conduct of the applicant's previous legal representatives in failing to pursue an automatism defence gave rise to a doubt or question warranting referral
Decision
Button J applied the well-established test from Application of Peter James Holland [2008] NSWSC 251: the application should be granted only if the material causes the judge unease or a sense of disquiet about allowing the conviction to stand. The judge found no such unease.
The applicant's central argument was that his conduct on the day may not have been voluntary due to the effects of medication administered during a recent hospitalisation. However, Button J considered the detailed agreed facts from sentencing, and concluded they were thoroughly inconsistent with involuntary action. Particular weight was placed on two features: the applicant's lengthy and deliberate pre-offence preparations in the car park (observed by a witness over an hour before the offence), and his post-assault steps to destroy forensic evidence by applying a chemical to the complainant's genitals while expressly telling her why he was doing so.
His Honour reasoned that these behaviours demonstrated planning, consciousness of wrongdoing, and an awareness of the risk of forensic detection. The applicant knew semen could identify him, understood that washing the complainant might reduce that risk, and communicated that reasoning to her at the time. Far from suggesting automatism, Button J found these acts amounted to powerful evidence of a consciousness of guilt.
Because the criticism of the applicant's former lawyers rested entirely on their handling of the voluntariness question, and because Button J found no merit in the voluntariness argument itself, the ancillary ground concerning legal representation also did not warrant referral.
Orders Made
- The application of Philip Spiers of 17 June 2016 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.
Key Takeaways
- Under s 78 and s 79 of the Crimes (Appeal and Review) Act 2001 (NSW), the threshold for referral to the Court of Criminal Appeal is whether the reviewing judge experiences unease or a sense of disquiet about the conviction, not whether a technical legal argument can be constructed.
- A claim of automatism is assessed against the totality of the accused's conduct, not merely whether a medical condition or medication was present. Evidence of planning and deliberate steps to evade detection is capable of being fundamentally inconsistent with involuntary action.
- Subsequent memory loss, or the presence of a psychological or psychiatric condition at the time of offending, does not in itself establish that the acts were involuntary for the purposes of an automatism defence.
- Where a secondary ground in a s 78 application (such as criticism of prior legal representatives) is entirely derivative of a primary ground that fails, the secondary ground also fails.
- In dismissing the application, Button J confirmed that agreed facts tendered without objection at sentencing remain relevant and cogent material when assessing a later claim that the convicted person acted involuntarily.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
Cases
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Bratty v Attorney-General for Northern Ireland [1963] AC 386
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- Penza and Di Maria v R [2013] NSWCCA 21
- R v Quick [1973] QB 910
- R v Spiers [2008] NSWCCA 107
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
- The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49
- Youssef v R (1990) 50 A Crim R 1