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Bromley v R [1986] HCA 49; (1986) 161 CLR 315 (23 September 1986)

CATCHWORDS

HEARING

DECISION

2. The Crown case was that the two applicants, accompanied by one Gary Carter, went with Docoza to a place on the bank of the River Torrens near to the Morphett Street bridge and there attacked Docoza when he refused the suggestion of Bromley that he should have sex with him. The dead body of Docoza, naked from the waist down, was found on 9 April 1984 floating in the Torrens and there was medical evidence that supported the view that Docoza was unconscious at the time when he drowned. The effect of the evidence of Carter was sufficiently stated as follows in the judgment of King C.J. in the Court of Criminal Appeal:

"Carter said that Bromley demanded sex from Docoza
and was refused. He said that Bromley and Karpany
both then set about kicking and punching Docoza and
that he rolled into the river. Carter said that
Bromley was ducking Docoza's head under the water
while Karpany was standing there. Bromley struck
Docoza with a barbell, which Carter had been
carrying in a bag. According to Carter, the two
appellants stripped Docoza naked. Carter said that
he had attempted to give some assistance to Docoza
and was frightened. He departed leaving the three
men together on the bank of the river. Docoza was
still then conscious and asking to be left alone.
After obtaining a drink of water at a pie cart
nearby, Carter went on to the Morphett Street
bridge. After a time he saw the two appellants
come up from the river area and on to the bridge.
They spoke to him but at about that time a police
car came along. The two appellants separated and
ran in opposite directions. Bromley hid, but the
police found him and spoke to him."
in question, at a time after the alleged murder, he had an episode of that illness and was admitted to a mental hospital. There was independent evidence that supported the evidence of Carter that he was present on the river bank at the time when Docoza was attacked; however, the only such evidence that confirms his evidence that the applicants were also present on that occasion is that to which I am about to refer. It is quite clear that the evidence of Carter as to the manner in which Docoza was attacked was inaccurate in some matters of detail.

3. Bromley and Karpany both made unsworn statements denying that they were present at the scene of the crime and that they had anything to do with Docoza on the night in question. However, the following evidence, if believed, confirmed Carter's evidence implicating the applicants. Jennifer Rose Carter, a sister of Gary Carter, gave evidence that Karpany, with whom she had at one time lived, told her, a few days after 4 April, that he had joined with Bromley in hitting Docoza. He said that they had bashed Docoza because Bromley wanted to have sex with him and that "they had bashed him that much that they were looking at five years so they just went all the way". This evidence was of course inadmissible against Bromley.

4. Michael George, a taxi driver, gave evidence that on the night of 4 April he had driven four men, three of whom were Aboriginals and one of whom was white, to the western end of Hindley Street, where he dropped them, and had then seen the men walking off in the direction of West Terrace. That was in the general direction of the spot on the river bank where the alleged murder occurred. Bromley, Karpany and Carter are Aboriginals and Docoza was white. From photographs George identified Docoza as the white man whom he had driven that night and Bromley as one of the Aboriginal passengers. It was not suggested in argument before us that there was any reason to doubt the accuracy of the identification which George made of Docoza but the accuracy of his identification of Bromley was strongly disputed. Evidence was given by the police that Bromley had been seen running away and hiding in some bushes. Bromley in his unsworn statement explained this by saying that he had panicked because he had only that day been released from jail on parole and that he had just been involved in a fight.

5. In support of the applications for special leave it was argued that the fact that Carter was a schizophrenic made his evidence so inherently unreliable that it was necessary for the learned trial judge to direct the jury that it would be dangerous for them to act on it unless it was corroborated and to explain to them what evidence was capable of amounting to corroboration. It was said that the recent decision of the House of Lords in Reg. v. Spencer [1987] UKHL 2; (1986) 3 WLR 348 was authority for those propositions.

6. In Reg. v. Spencer the prosecution case depended wholly on uncorroborated evidence of a number of patients in a secure hospital each of whom had a criminal record and suffered from a mental disorder. The question of law (as amended) before the House of Lords was in the following terms:

"In a case where the evidence for the Crown is
solely that of a witness who is not in one of the
accepted categories of suspect witnesses, but who,
by reason of his particular mental condition and
criminal connection, fulfilled analogous criteria,
must the judge warn the jury that it is dangerous
to convict on his uncorroborated evidence?"

"(1) while it may often be convenient to use the
words 'danger' or 'dangerous', the use of such
words is not essential to an adequate warning so
long as the jury are made fully aware of the
dangers of convicting on such evidence; and
(2) Reg. v. Beck (1982) 1 WLR 461 ((1982) 1 All
ER 807), was rightly decided and in a case which
does not fall into the three established categories
and where there exists potential corroborative
material, the extent to which the trial judge
should make reference to that material depends on
the facts of each case and the overriding rule is
that he must put the defence fairly and
adequately."

7. If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.

8. In the present case the danger that Carter might be an unreliable witness must have been apparent to the jury after particulars of the effect of his schizophrenia had been elicited in cross-examination; for example, he said that he thought that he had seen the devil. The learned trial judge gave the following direction about Carter's evidence:

"Whilst on the subject of witnesses, I want to
say something about Gary Carter. He undoubtedly
has a mental illness; undoubtedly, as Mr. Borick
said, he was more affected by that illness on the
night in question than he was when he gave evidence
before you. You must, therefore, approach Gary
Carter's evidence with considerable caution,
especially bearing in mind as the Crown,
Mr. Martin, put to you that his evidence is so
crucial to the Crown case. You must scrutinize his
evidence with special care. It is open to you to
act on his evidence if you are convinced of its
accuracy, and you should not do so without first
giving careful heed to the warning that I am now
giving you. There is no doubt that in some
important respects he is mistaken. I say
'mistaken' because I do not think that anyone
seriously suggests that he was lying. He was
clearly mistaken, you may well think, in believing
that all of Docoza's clothes were removed. He was
clearly mistaken in believing that the accused,
Bromley, laboured Docoza with the barbell. You may
decide that he was right in saying that Bromley
picked it up, that he may have been struck one or
more glancing blows, but the fact remains that
Dr. Manock's evidence undoubtedly proves that
Carter was mistaken as to the use made by Bromley
of the barbell.

Counsel mentioned other matters as well and
you will bear them in mind when considering whether
you can accept any part of Carter's evidence.
Mr. Martin argued that notwithstanding all that the
defence has put to you, and some of which I
mentioned, Carter was supported by independent
evidence to a substantial extent, and I direct you
that if after scrutinizing his evidence, and
bearing in mind the warning I have just given you,
if that support, if you find it exists, persuades
you to accept some or a great deal of what he has
said, you may do so."

9. A second question that was argued related to the identification of Bromley by the taxi driver George. The evidence of the identification made from the photographs was admissible: Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395. The great danger that a miscarriage of justice may occur as a result of mistaken identification, and the need to warn the jury of the special need for caution before acting on evidence of visual identification, are now well recognized: see Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534, at pp 550-551; Reg. v. Turnbull (1977) QB 224. In the present case the learned trial judge did warn the jury that they should treat the evidence of identification with special care. No objection to the sufficiency of the direction in this regard was taken either at the trial or before the Court of Criminal Appeal. However counsel for Bromley did seek one redirection regarding this aspect of the matter. The taxi driver described the Aboriginal man whom he identified as Bromley as "very smartly dressed: light coloured suit, white tie, black shirt and hat; unusually, in fact very well dressed". This description did not correspond with other evidence, including that given by police officers, as to the appearance of Bromley that night. In the course of the summing up the learned trial judge said that George seemed to have been mistaken about what clothing Bromley was wearing, if it was he who got into the car, and added that George might have mistaken the colour of the jacket in the light as it was in Hindley Street. After counsel had raised this matter the learned trial judge redirected the jury, saying:

"To avoid a misunderstanding I will remind you that
if you think that the witness George might be
right, that the man who got into the taxi was
wearing a white suit and white trousers, black
shirt and tie and hat with a brim, it must be a
reasonable possibility the man who got into the
taxi could not be Bromley."

10. Counsel for Karpany submitted that the non-parole period fixed in respect of the sentence imposed on his client - twenty-eight years - was excessive, particularly by comparison with the non-parole period of thirty-two years fixed for Bromley who, it was said, bore a greater responsibility for the crime and had a worse criminal record. A sentence of life imprisonment was mandatory and the appropriateness of the non-parole period had to be considered in relation to that circumstance. The sentence was undoubtedly a severe one but Karpany already had a criminal record which involved several convictions for offences of violence. In any case it is well established that this Court will not grant special leave to appeal against sentence merely because the sentence appears to be excessive: see Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606. It is not possible to say that the non-parole periods fixed for Bromley and Karpany respectively are out of all proportion. It has not been shown that the learned trial judge erred in principle or that there has been any violation of settled sentencing principles or that any miscarriage of justice has resulted.

11. A number of other matters were argued but it was not necessary for the Court to call upon the Crown in relation to them, since in the view of the Court none of them warranted the grant of special leave to appeal.

12. No sufficient ground has been shown in either case for granting special leave to appeal and the applications should be refused.

MASON J.: I would refuse special leave to appeal for the reasons given by the Chief Justice.

WILSON J.: I would refuse special leave to appeal for the reasons given by the Chief Justice.

BRENNAN J.: This case turns on the sufficiency of a direction given to a jury in a murder trial with respect to the evidence of a schizophrenic, one Gary Carter. He was an alleged eye witness to the crime. The admissibility of the evidence of a person suffering from a mental disorder which affects his capacity to observe, recollect and express the matters which his evidence is tendered to prove is a question for the trial judge: see Sinclair v. The King [1946] HCA 55; (1946) 73 CLR 316, at p 333. Though his evidence is admitted (whether over objection or not), other evidence showing that his capacity to observe, to recollect, or to express is impaired by mental disorder may be called before the jury, for it is relevant to the weight to be given to his evidence: Reg. v. Toohey (1965) AC 595, at p 608; Reg. v. Dunning (1965) Crim.LR 372; Wigmore on Evidence, Vol.II, 497(c). Admission of the impeaching evidence is one of the recognized exceptions to the general rule against calling witnesses to contradict a witness on collateral matters: Archbold Pleading, Evidence and Practice in Criminal Cases (42nd ed.) par.4-336, p.420.

2. The evidence of Gary Carter was admitted without objection. Evidence of his schizophrenia and of an episode of mental disturbance on the night of the crime was given by his mother, by himself and, to a lesser extent, by his sister and by a taxi driver in whose taxi he had ridden that night. His evidence of the crime was at the centre of the Crown case against the applicants. They submit that the jury should have received a warning that it was dangerous to convict them of murder on the uncorroborated evidence of Carter and that the trial judge should have directed the jury as to the independent evidence admissible against the respective accused which might have corroborated Carter's evidence against that accused and further directed the jury as to their function in determining whether Carter's evidence was corroborated in fact. There was some evidence admissible against each of the applicants which, if accepted by the jury, would have corroborated Carter's evidence against him. The conviction of neither applicant would have been likely if the jury had entertained a reasonable doubt as to the substantial truth of Carter's evidence.

3. There is no rule of law which requires that a jury be warned that it is dangerous to convict on the uncorroborated evidence of a person who suffers from a mental disorder but, it was submitted, there is a rule of practice which requires the giving of such a direction. Reliance was placed on a recent decision of the House of Lords in Reg. v. Spencer [1987] UKHL 2; (1986) 3 WLR 348.

4. Prior to Spencer, the House of Lords had identified three "accepted categories" of witnesses whose evidence attracts a warning as to the danger of convicting upon it unless confirmed by evidence from another source. Those categories are accomplices, children giving evidence under oath and the alleged victims of sexual assaults (of any age): see per Lord Diplock in Reg. v. Hester (1973) AC 296, at p 325. Lord Hailsham of St. Marylebone L.C. in Reg. v. Kilbourne (1973) AC 729, at p 740 added a further category ("persons of admittedly bad character"). In Spencer, their Lordships refused to add a category consisting of "patients in hospital under the Mental Health Acts" (at pp.358-359). Such a category, as Lord Ackner observed (at p.359) "would clearly involve considerable problems of definition". However, their Lordships held (at p.360) that a warning should be given in respect of the evidence of witnesses who, by reason of their particular mental condition and criminal connection, fulfil "analogous criteria" to those in "the accepted categories of suspect witnesses".

5. Whatever the analogous criteria may be, witnesses who are suffering or who have suffered from some form of mental disorder do not necessarily fulfil them. It must be remembered that the sole raison d'etre of the rule requiring a warning to be given "is to ensure that the jury is alive to the danger of convicting on the uncorroborated evidence of a class of witnesses whose testimony may, for reasons already indicated, be untruthful" (per Mason J. in Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534, at p 560). The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses. The experience of the courts has shown also that the reasons which may lead one suspect witness to give untruthful evidence are not necessarily the same as the reasons why another suspect witness may do so: see R. v. Weston [1924] VicLawRp 25; (1924) VLR 166, at pp 171-172; McNee v. Kay [1953] VicLawRp 71; (1953) VLR 520, at pp 524-526. The reasons why a person suffering from a mental disorder might be led to give untruthful evidence depend, I suppose, on the nature and severity of the mental disorder. The effects of various kinds and degrees of mental disorders on a witness's capacity to observe, to recollect and to express accurately the matters he is to depose to and on his willingness to give truthful evidence are, I imagine, quite diverse. But the courts have no scientific knowledge about the danger of acting on evidence given under the influence of mental disorders of various kinds and degrees, nor have they acquired any experience of the danger of acting on evidence given by persons suffering from a mental disorder wider than the experience of the general public.

6. The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer (at p.353) "partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind". (See also per Lord Ackner at p.359 and per Lord Diplock in Hester, at p.325.) If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher, at p.543:

" The rule of practice as to the warning to be
given to the jury is related to the reasons which
have prompted it. In my opinion, it does not
require a warning where those reasons have no
play."

7. When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted. In such a case, there is a miscarriage of justice warranting the quashing of the conviction: R. v. Bassett [1952] VicLawRp 75; (1952) VLR 535, at p 538. Because a Court of Criminal Appeal may and frequently does quash a conviction when no warning is given with respect to the evidence of a witness in one of the accepted categories, the rule of practice requiring a warning might be thought to have acquired the force of law (cf. Kelleher, at pp.559-560). But in truth the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice (cf. Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521, at p 604). When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content. It cannot be said that a conviction on the uncorroborated evidence of a person suffering from a mental disorder, whatever the kind or degree of the disorder may be, is generally, in the absence of a warning pointing out the danger, a miscarriage of justice. If the mental disorder is quite trivial and transient, it may be quite irrelevant to the credit which might properly be given to the witness's evidence. And if the nature, severity and significance of the witness's mental disorder is deposed to by persons qualified to do so, that may bring home to the jury more vividly and more authoritatively than a judicial warning the danger of acting upon the witness's evidence without corroboration.

8. It follows that there is no universal rule of practice that a trial judge should give a warning - much less a warning according to a prescribed formula - whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder. It may be that the circumstances will require some caution to be given - not because of a particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly. Perhaps no more can be said than this: when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness's mental disorder are such that the jury may not have fully perceived or the jury's attention may have been diverted from the danger, a warning should be given. This was such a case.

9. There was no medical evidence as to the nature, severity and significance of Carter's mental disorder, yet it seems that he suffered some delusions on the night of the crime and some of his evidence was clearly inaccurate. In the absence of expert evidence, the jury might have given too much emphasis to his appearance in the witness box without having regard to the possible effect of his condition in his capacity to observe and recollect. But his Honour gave the jury a warning, directing their attention precisely to the danger of acting on Carter's evidence where it was unsupported by other evidence. No more was needed. The credibility of Carter was the chief issue in the case and the jury could not have failed to consider whether it was safe to act on his evidence nor, once it was pointed out to them, could they have failed to appreciate the danger of placing too much reliance on the appearance of Carter in the witness box.

10. I agree with what the Chief Justice has written with respect to the identification of Bromley by the taxi driver George, the non-parole period in Karpany's case, and the other matters raised in argument.

11. Special leave should be refused.

DAWSON J.: I agree with the Chief Justice.

ORDER