Smith, Regina v [1965] PGSC 39; [1965-66] PNGLR 220 (19 April 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 220 - Regina v Smith

[1965-66] PNGLR 220

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

SMITH

Port Moresby

Mann CJ

18-19 April 1966

CRIMINAL LAW - Fitness to plead - Onus and standard of proof - The Criminal Code, ss. 27, 613, 645.

Section 613 of The Criminal Code provides, inter alia, as follows: “If where the accused person is called upon to plead to the indictment it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial so as to be able to make a proper defence, then, if on a plea of not guilty to such indictment the accused person would be entitled to be tried by a jury, a jury of four persons to be chosen from the panel of jurors are to be impanelled forthwith who are to be sworn to find whether he is capable or no; or, if on a plea of not guilty to such indictment the accused person would not be entitled to a jury, the court shall find whether he is capable or no . . .”

Held:

N1>(1)      Where any question arises as to the fitness of an accused person to plead to an indictment it is the duty of the trial judge under s. 613 to try the issue, even though no application has been made by the Crown or the defence.

N1>(2)      In such a preliminary enquiry neither the Crown nor the defence bears any onus of proof and the standard of proof is on the balance of probabilities.

R. v. Sankey (Queensland, 1962, unreported) followed. R. v. Kolacz, [1950] VicLawRp 2; 1950 V.L.R. 200; R. v. Vernell, [1953] VicLawRp 47; 1953 A.L.R. 1139; R. v. Beynon, [1957] 2 Q.B. 111; R. v. Presser, [1958] VicRp 9; [1958] V.R. 45; R. v. Podola (1959), 43 Cr.App.R. 220; and Wendo and Ors. v. R., [1963] P. & N.G.L.R. 242 referred to. R. v. Dashwood, [1943] 1 K.B. 1; [1942] 2 All E.R. 586, explained.

Trial on Indictment.

The facts appear from the judgment.

Counsel:

Croft, for the Crown.

Sturgess, for the accused.

Cur. adv. vult.

19 APRIL 1966

MANN CJ:  Perhaps at the outset I may refer to the general definition of insanity under the Criminal Code of Queensland as adopted in this Territory. Section 27 provides: “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

“A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

That section which occurs in Chapter V of the Code is accompanied by other sections which in the public interest ought to be available to the accused in criminal proceedings. In the ordinary case, and especially where counsel appears for the accused person, these matters will be investigated and will be brought under the notice of the court as a matter of course, if they are for the benefit of the accused.

In this case, counsel for the accused has very properly intimated that he is bound by certain instructions which will not allow him to raise the issues set out in Chapter V and have them brought before this court to be investigated.

In the public interest where the position is that these possible defences ought to be investigated but the fact that they are not brought forward for investigation is due to some choice or decision of the accused which may be due to an imperfect capacity to understand the position that he is in, the capacity of the accused to conduct a defence should be investigated.

I am only concerned to decide, not the general question of criminal responsibility, but what steps should now be taken in the course of this trial which is before the court.

There are two sections having a bearing on this. First s. 613: “If where the accused person is called upon to plead to the indictment it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial so as to be able to make a proper defence, then, if on a plea of not guilty to such indictment the accused person would be entitled to be tried by a jury, a jury of four persons to be chosen from the panel of jurors are to be impanelled forthwith who are to be sworn to find whether he is capable or no; or, if on a plea of not guilty to such indictment the accused person would not be entitled to a jury, the Court shall find whether he is capable or no.

If the jury or the court as the case may be find that the accused person is capable of understanding the proceedings the trial is to proceed as in other cases.”

Now, as is well known, we do not have the jury procedure here, and so it will fall to me to determine the question, which in Queensland would be decided by a jury.

I think it is clear from the reading of the section as a whole that the second part of that section should have read into it, after the words “that he is capable of understanding the proceeding” the further words “so as to be able to make a proper defence”. These words occur in the wording of the first part and are not repeated in the second part.

The third part says: “If the jury or the court as the case may be find that he is not so capable the finding is to be recorded and the court may order the accused person to be discharged or may order him to be kept in custody in such place and in such manner as the court thinks fit until he can be dealt with according to law.

A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence.”

The other section is s. 645. This section applies if the trial has already commenced, so it does not arise in this case. There is a difference in the wording. The question is “... and if the court or the jury as the case may be find that the accused person is not of sound mind . . .” and so forth, and the section then parallels s. 613 in all other respects.

I am not concerned to decide whether that difference of expression implies any difference of meaning, and in cases to which I will refer the contrary view will be expressed. For the present purposes it may be taken that there is a uniform procedure applicable at any stage during the trial whereby the question under s. 613 is whether the accused is capable of understanding the proceedings of the trial so as to be able to make a proper defence. It may be that the same state of mind would constitute insanity for the purpose of a defence to the charge, but the section does not require an express finding of insanity. Incapacity may be due to other causes.

When the indictment was presented counsel for the Crown intimated to the court that he was aware of circumstances and had evidence available and information which would suggest that s. 613 should be resorted to because they raised a serious question of the capacity of the accused. It is clear, from the cases to which I will refer, that in such an event it is clearly counsel’s duty, and I mean the duty of both counsel, to see that this matter is brought to the notice of the court. It does not matter which counsel mentions it. In many cases counsel for the defence, especially if he has instructions limiting his authority in the defence, might well find it less embarrassing to leave it to counsel for the Crown to make the information known, but it is not necessarily a matter which would be part of the Crown case.

I think in this case the learned prosecutor has sufficiently indicated, without raising any conflict, that in the event of the case going to trial, it would be the Crown’s intention and no doubt its duty, to test substantially the issue of insanity or otherwise which would then arise under s. 27, but he was at present simply making the intimation in compliance with the law to bring this matter to the notice of the court. This type of situation is not common, and my impression was that this matter should be investigated at once by the court itself.

I was much comforted to see support for this view in the case of R. v. Sankey[ccxxiii]¹ decided in Queensland in 1962 by the late Philp J., who had very great experience in criminal and other trials. In that case the question arose under s. 645, not under s. 613, by virtue of the circumstance that a plea had already been taken before the matter was mentioned to the court. I think it makes no difference. Mr. Justice Philp did make, in that case, a preliminary inquiry.

The matter having been raised, I proposed to conduct an inquiry, and asked both counsel to assist the court by supplying the names of witnesses and any other material which might have bearing on this question. We then proceeded to investigate.

There has been some question of onus of proof, but in a case such as this the issue is not raised by any party as a matter of contest in the course of a trial. A similar issue would, of course, arise at a later stage, it may or may not be precisely the same issue. Under s. 613 it would appear to be a much narrower issue limited to a question of capacity to conduct one’s defence.

I do not think the question of onus of proof will cause difficulty. The standard of proof of insanity is similar to that in civil cases. I think it goes no further than this, that if there is no evidence then the assumption, and at law the presumption, is that the person is sane, nothing being known to the contrary. If the question is raised, and if the evidence does not support a different answer, then you come back to the presumption.

On the balance of probabilities does the accused at this stage suffer from the particular lack of capacity specified whether or not it constitutes insanity in a special sense, a general sense or in any other sense? Is the refusal of the accused to raise or fight issues here being affected by such a lack of capacity, regardless of what his state of mind may have been at the time of the alleged crime; that is the scope of the matter?

I am greatly indebted to the expert witnesses who have clearly explained the position. They have thoroughly investigated the matter.

I will refer to some of the cases which I have mentioned; they will indicate why the present course has been taken. In the case of R. v. Presser[ccxxiv]², Smith J. said: “It appears to me, on the whole of the material before me, that there is a real and substantial question to be considered, in relation to the accused’s fitness to be tried. And that being so, I think that I am under a duty to have that matter determined by a jury before I allow the trial to proceed. I think that the case of R. v. Beynon[ccxxv]³ is of importance on that aspect of the matter. In that case reference was made to the earlier decision in R. v. Dashwood[ccxxvi]⁴, in which it was stated that it is a cardinal principle of our law that no man can be tried for a crime unless he is in a position to defend himself, and that that includes his being in a mental condition to defend himself. In Dashwood’s case, supra, it was also stated that the court acts in such a matter upon any information conveyed to it from any quarter. In Beynon’s case, supra, the court made this observation, ‘If the court is aware of the fact that there is a preliminary issue whether the person who is charged before the court on an indictment is insane so that he is unfit to be tried, it is the duty of the court to see that that issue is tried, even though no application is made by the prosecution or by the defence.’ I think that I should follow the view of the law there expressed and direct that an inquiry be made by a jury as to the accused’s fitness to be tried. I so direct.”

That is the law in Victoria, and, so far as applicable, is helpful here.

In the English case of Podola[ccxxvii]⁵ I read from pp. 234-235. [Passage read commencing “We deal first with the matter specifically referred to us ...”.]

There is a recent decision of the High Court of Australia in a case which came from the Territory. The case is Wendo and Ors. v. R.[ccxxviii]⁶. It is not a direct decision covering this case, but there is an observation by the learned Chief Justice, Dixon C.J., on a parallel situation. In this case the court was concerned with the admissibility of a confession which, in the Territory, falls to be decided by the judge incidentally to the conduct of the trial and as a collateral issue: “The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of general propositions laid down in Woolmington v. D.P.P.[ccxxix]⁷, but I think that it is a mistake to transfer the principle from its application to the issues before the jury to incidental matters of fact which the judge must decide.”

There are one or two other references to onus of proof, but I think it is clear in this case, on this particular issue before me, that there is no particular significance arising from any question of onus of proof. It is a question of the balance of probabilities, and particularly so as no party alleged it, relies on it, or seeks to prove it, and it is being investigated by the court to find out what the truth is, and there is nobody who will win or lose by the decision I make. The evidence either supports on the balance of probabilities an affirmative answer or it does not.

The case of R. v. Beynon[ccxxx]⁸ has been referred to in other cases. It deals with Dashwood’s case[ccxxxi]⁹ and other cases. It was a case where the question arose before any plea was entered on arraignment. The Crown raised the issue of fitness to plead as a preliminary issue. The defence submitted that the issue should not be tried as a preliminary issue on the application of the Crown. It was held by the court, sitting at Cardiff Assizes that the question of the defendant’s fitness to plead must be tried as a preliminary issue as an insane person could not be tried and, on the court’s attention being drawn to the fact that there was this preliminary issue the court was bound to try it.

In the case of R. v. Kolacz[ccxxxii]¹⁰, a Victorian decision, I read a passage from the judgment of the Chief Justice. At the time the court was sitting as a Full Court. Herring C.J. read a judgment of the court in which the other judges concurred: “It is one of the elements of a fair trial that the evidence should be conveyed to the intelligence of the accused. As it was put by Lord Reading C.J. in R. v. Lee Kun[ccxxxiii]¹¹: ‘The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. The prisoner may be unable, through insanity or deafness or dumbness, or the combination of both conditions, to understand the proceedings or to hear them, either directly or by reading a record of them, or to answer them either by speech or writing.’ To these instances we think there should be added a state of mind less than insanity within the legal definition, where, for some reason, the accused’s mind is so disturbed that he is incapable of understanding and participating in the trial to the extent necessary for his own defence. Such cases must no doubt be rare, but the circumstances revealed in this appeal are very special.”

Leaving the judgment for a moment and going back to s. 613, which does not apply in Victoria; I am not aware of the precise form of the Victoria legislation, but the words used in s. 613 are practically identical in their concept to the words used by Herring C.J. in Kolacz’ case[ccxxxiv]¹². I resume reading from the judgment: “There is the background and history of the accused, his attempt to commit suicide, his refusal before and during the trial to co-operate in connection with his defence, his unfounded suspicions of everybody, including those assigned to defend him, due no doubt to his years in a German concentration camp, and his delusions about his wife and her supposed attempt to poison him. Grave doubts were obviously felt at the trial with regard to his fitness to plead, and these have been confirmed by the medical evidence made available to this court. As it was, the plea of self-defence that was put forward at the trial was not made on the instructions of the accused, but one put forward quite properly by counsel for the accused as the only one available on the material brought forward by the Crown, which was the only material known to him. The defence of an alibi that it is now desired to advance was foreshadowed at the trial, however, and therefore was one made known before conviction, but the manner in which it appeared was such that no real use could be made of it in the defence at the trial because it came out only incidentally in the course of cross-examination of the accused’s wife, who was called to give evidence on his behalf in connection with certain matters relevant to self-defence. In those circumstances we think this is a case in which there should be a new trial.”

There is the case of R. v. Dashwood[ccxxxv]¹³ to which reference has already been made. I will first read the headnote:

“The appellant was indicted for murder and counsel were assigned to him under the provisions of the Poor Prisoners’ Defence Act, 1930. At the trial he pleaded not guilty and, after the formal opening of the case, objected to the counsel who had been assigned to him and who, thereupon, withdrew from the case. He cross-examined witnesses but neither gave nor called evidence and would not allow the issue of insanity to be raised. On the appeal application was made for leave to call certain witnesses as to his sanity.

“Held: the application to call witnesses on an issue and plea which had been deliberately withheld at the trial amounted to an application to the court to substitute itself for the jury as a tribunal of fact and to embark upon the trial of an entirely new issue and plea and this the court has no power to do.”

That court in England refused to re-open the trial and acted upon the footing that the accused, having elected to take a certain course at his trial was bound by the result. There are several important features in this case which should be borne in mind apart from the fact that it is an English case depending on slightly different legislation. There is a note at the end of the judgment by Mr. Justice Humphries:

“There is one other matter. It must not be thought that because this court refuses to enter upon an inquiry which, in the opinion of the court, it has no power and no right to enter upon, that the question of this man’s sanity or otherwise will not be enquired into elsewhere. It is well known that in capital cases the Home Secretary in any case where any question of the sanity or otherwise of an accused person has been raised, does not advise His Majesty, as he is bound to do, without availing himself of the assistance of the most experienced medical men. What course the Home Secretary will take in this case is nothing whatever to do with this court, but it is right that it should be known that such is the practice of the Home Secretary, and we have not the least reason to suppose that that practice will be departed from in this particular case.”

This emphasises the danger that could arise where an accused person whose mental processes may or may not constitute insanity is put in a position to deprive himself by his own choice of the protection of due process of trial when he is charged with a serious criminal offence. It is a grave danger for which the courts are always on the alert. In that English case the Court of Criminal Appeal decided that it had not the power to reverse the jury’s verdict mainly for technical and procedural reasons, and so they made it clear to the public that this would not be allowed to prejudice the accused because as a practical consideration his case would be thoroughly examined before any sentence was carried out.

It is a cardinal principal of the law that no man can be tried for a crime unless he is in a position to defend himself, and that matter was in the minds of counsel when this man pleaded not guilty. The court reached the conclusion indicated in Dashwood’s case[ccxxxvi]¹⁴ because there was no evidence whatever to lead to the conclusion that the accused was anything but sane. Yet if information as to probable insanity comes from any source at all, it is the court’s duty to investigate it. Quoting from p. 587 - “It should be known that the court acts in such a case upon any information conveyed to it from any quarter. It may come from the defendant himself, or his advisers, or from the prosecution, or from an independent person, such as the medical officer of the prison where the prisoner has been confined. If anyone suggests to the presiding judge that this preliminary question ought to be tried: is this person in a condition of mind to enable him properly to understand the proceedings, to instruct counsel, if he has counsel, or to defend himself if he be without counsel, then the procedure is that that question should be tried by a jury. With that knowledge, two experienced counsel decided that they had no material before them upon which they could invite the judge to allow the jury to consider such a question, and that happened on July 17. There is not a rag of evidence in this case to suggest that the condition of mind of Dashwood on July 20 was any different from his condition on July 17. We find it quite impossible to assume from the mere fact that he differed from his counsel as to the best line to be taken in his interest that this man, who had pleaded not guilty with the approval of his counsel three days before, was at that time in such a condition owing to his insanity as to be incapable of conducting his own defence.”

That is a case where the facts were the other way. It upholds the principles to which I have referred.

In the case of R. v. Vernell[ccxxxvii]¹⁵. This was a Full Court case where the accused adopted a purposeful course, trying to prevent the successful conclusion of his trial and the question of fitness to plead was raised as a preliminary point. The accused became very violent and he went so far that the judge had to remove him from the court. This is an aspect of the rule we are concerned with regarding the presence of the accused at the trial. The accused must be present in the fullest sense both physically and also with capacity to do justice to himself in making decisions. The case went on appeal. The main question before the Court of Criminal Appeal was as to the bodily removal of the accused from trial, with which we are not concerned, but there is a quotation from the summing up of Lowe A.C.J. presiding over the trial, which confirms the principles that I have mentioned in the other cases. I do not think there is any occasion to read on.

I am indebted to both counsel for frankly affording me the assistance of the material at their disposal, and by facilitating my problem by making available the cases which their research has discovered. I have no difficulty in coming to the conclusion that the accused in this case is not in a position to do himself justice in his trial.

First, he has already pre-judged himself. This is something which should not be done. One should be very careful when a person wants to pre-judge himself. It may well be by reason of some temporary state of mind - I do not use the word insanity, because in some cases it may or may not amount to insanity. It may be caused by emotional or other pressures or a mixture of things. I am not concerned to use the word at the moment. That specific issue would arise at a later stage.

I think that the accused is in a position, which is disclosed by his diary, in his statements and in other material available, in which he could not, without a good deal of difficulty, retreat from an attitude already established. According to the explanation implied in the diary it is a course of conduct on which he deliberately embarked, which according to medical evidence would be a course of conduct which he would accept as right, proper and natural, even if illegal. The event which he had very carefully planned over a long period of time did not work out precisely in the way in which he had planned it. He said that he sought substantially the same result by giving himself an overdose of morphine, but that did not work.

It has been stated that he regards this trial as a means of reaching the same destination, which means that he would be committing suicide by judicial process. Public interest demands that the issue of guilt be determined according to law with assurance that the accused is not going to achieve any such end merely by making up his mind to stand on a position of virtue, and refuse any possible escape from a position which he has created.

I do not want to say a great deal about this case. This question is only before me in a limited way, but I think there is plenty of material here to show that the accused has made decisions as to his defence which are not objectively reasonable and are against his own interest. He may now think that the highest standard of virtue is that he should deny himself that privilege afforded to him by the law and stand up and face a position which he has created.

My conclusion is that the accused must be tried, if at all, at least when he is in such a condition that he can accept experienced and sound legal advice, which might assure him that it is not necessary to prevent the court from conducting a proper trial of this case. If he becomes in a position in which his mind is free, then, of course, the public interest would be very strongly in favour of his being brought to trial.

The general question of insanity should be tried at the proper time. If the accused recovers with rest, treatment and time, he may then be in a position to be brought to trial, and the trial can be conducted properly and safely, not for his benefit, but so that the public interest can be satisfied as to a course of conduct which has raised very serious allegations. If the accused is found to be guilty of the crime, it will be a serious crime. From the public interest point of view it is most important both as to the question of guilt and as to the question of penalty that the court should be in a position to conduct an unfettered trial.

That is my view of the matter. I do not feel any uncertainty about this. I think the medical evidence is clear.

I order that the accused be held in custody in the Port Moresby Sub-District, under the direction of the Assistant Director of Public Health for Mental Hygiene, until he can be dealt with according to law. This is not to disturb his custody by the police, or by corrective institutions, whichever may be the people concerned, until some action is taken according to law to determine the matter.

Ordered accordingly.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccxxiipan>Unreported.

[ccxxiv][1958] V.R., pp. 45-46.

[ccxxv][1957] 2 Q.B. 111.

[ccxxvi][1943] 1 K.B. 1; [1942] 2 All E.R. 586.

[ccxxvii](1959) 43 Cr.App.R. 220.

[ccxxviii][1963] P. & N.G.L.R. 242.

[ccxxix][1935] A.C. 462.

[ccxxx][1957] 2 Q.B. 111.

[ccxxxi][1943] 1 K.B. 1; [1942] 2 All E.R. 586

[ccxxxii][1950] V.L.R. 200.

[ccxxxiii] [1916] 1 K.B. 337, at p. 341.

[ccxxxiv][1950] V.L.R. 200.

[ccxxxv][1942] 2 All E.R. 586; [1943] 1 K.B. 1.

[ccxxxvi][1942] 2 All E.R. 586; [1943] 1 K.B. 1.

[ccxxxvii][1953] VicLawRp 47; [1953] V.L.R. 590; [1953] A.L.R. 1139.