AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 24 May 2019

TA v R

[2019] NSWCCA 145

Sexual offences
APPEAL CONVICTION MENTAL IMPAIRMENT DEFENCE NEW EVIDENCE PSYCHIATRIC EVIDENCE FROM SECOND TRIAL LEAVE TO APPEAL

Citation: TA v R [2019] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 24 May 2019
Judge(s): Hoeben CJ at CL, Walton J, Wilson J

Background

The appellant, a medical practitioner, was convicted at a first District Court trial on four counts arising from conduct during medical procedures: three counts of aggravated sexual intercourse without consent and one count of aggravated indecent assault. The complainant in these counts was a patient seen on 29 April 2014. He was sentenced to six years' imprisonment with a four-year non-parole period.

At a separate second trial, conducted before a judge alone, the remaining "hung" counts from the first trial were determined. The judge in that proceeding found that the appellant suffered from bipolar affective disorder in a manic phase at the relevant times and returned special verdicts of not guilty on the grounds of mental illness on all remaining counts.

The appellant then sought leave to appeal out of time against the four convictions from the first trial. He relied on psychiatric evidence adduced at the second trial, specifically the report and oral evidence of Dr O'Dea, which had not been before the jury at the first trial.

  • Whether leave to appeal out of time should be granted against the four convictions from the first trial
  • Whether psychiatric evidence from the second trial constituted admissible "new or fresh evidence" in the appeal
  • Whether that evidence, taken together with the circumstances of the offending, established that the appellant was mentally ill within the meaning of the law at the time of the first trial offences
  • Whether the convictions should be quashed and replaced with special verdicts of not guilty on the grounds of mental illness

Decision

The Court granted leave to appeal out of time, accepting that the same considerations favouring admission of the psychiatric evidence also weighed in favour of extending the time limit. The Court acknowledged that the Dr O'Dea evidence had not been tendered at the first trial, and that it was doubtful whether it strictly qualified as "fresh" evidence given the absence of any explanation for why a mental illness defence had not been run at that trial. However, the Court admitted the evidence in the interests of justice because of its cogency, applying the principle from R v Abou-Chabake that sufficiently cogent new evidence giving rise to reasonable doubt as to guilt warrants admission regardless of freshness.

The Court found that the counts from the first trial were not materially distinguishable from those resolved at the second trial. The offending occurred over the same period and involved similar conduct. Dr O'Dea's report expressly addressed the appellant's condition on 29 April 2014, including the specific circumstances relevant to the complainant in the first trial counts, as well as his overall psychiatric history and the accounts of all six complainants across both trials.

While some features of the evidence were suggestive of an understanding by the appellant that his conduct was morally wrong, the Court accepted that Dr O'Dea's opinion remained cogent despite those qualifications. With no contrary psychiatric evidence before it, the Court concluded that the appellant was in a manic phase of his bipolar affective disorder at the time of the first trial offences and was consequently unable to reason with a moderate degree of composure. Following Carter v R, the Court confirmed that the mental illness defence can be established where a person fails to understand, in a deep and considered sense, the moral wrongfulness of their acts.

The Crown consented to the quashing of the convictions and the entry of special verdicts, and the Court made orders accordingly, including for the appellant's detention under the Mental Health (Forensic Provisions) Act 1990 (NSW).

Orders Made

  • Time extended to bring the appeal out of time
  • Leave to appeal against conviction granted
  • Appeal against conviction allowed
  • The four convictions (three counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 and one count of aggravated indecent assault under s 61M(1)) quashed
  • Special verdicts of not guilty on the grounds of mental illness entered on each count
  • Appellant to be detained in a place determined by the Mental Health Review Tribunal until released by due process of law, pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • The Registrar directed to notify the Minister for Health, the Mental Health Review Tribunal, and Justice Health of the judgment and orders, and to provide specified documentation to those bodies

Key Takeaways

  • Psychiatric evidence from a second trial can support an appeal against convictions from a first trial, particularly where the offending occurred over an overlapping period and the expert's opinion expressly addresses the relevant circumstances.
  • Even where new evidence may not strictly qualify as "fresh" (because its absence from the first trial is unexplained), courts retain a discretion to admit it in the interests of justice where it is sufficiently cogent to raise a reasonable doubt as to guilt.
  • Under the mental illness defence, the inability to reason with a moderate degree of composure, arising from a manic phase of bipolar affective disorder, can satisfy the legal test, provided the accused failed to understand the moral wrongfulness of their acts in a deep and considered sense.
  • The Court of Criminal Appeal confirmed the formulation from Carter v R that the defence of mental illness may be established even where some features of the evidence suggest an awareness of moral wrongfulness, provided the overall psychiatric evidence is cogent and uncontradicted.
  • Where a conviction is quashed and a special verdict of not guilty on the grounds of mental illness is entered, s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) governs the consequential detention of the appellant pending review by the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7(4)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39

Cases
- Carter v R [2019] NSWCCA 11
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- R v El-Kheir [2018] NSWDC 245