Regina v Henley [2005] NSWCCA 126

New South Wales Court of Criminal Appeal

CITATION: Regina v Henley [2005] NSWCCA 126

HEARING DATE(S): 06/04/2005

JUDGMENT DATE: 6 April 2005

JUDGMENT OF: Hunt AJA at 1-15, 18; Grove J at 16; Hall J at 17

DECISION: The conviction is quashed and a new trial is ordered.

CATCHWORDS: Issue raised on appeal as to whether the appellant may have been unfit to be tried - approach to be taken by Court of Criminal Appeal.

(Cwth) Crimes Act 1914 LEGISLATION CITED: (NSW) Mental Health (Criminal Procedure) Act 1990

Eastman v The Queen (2000) 203 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 CASES CITED: Regina v Prosser [1958] VR 45 Regina v RTI (2003) 58 NSWLR 438

Regina PARTIES: George Francis Henley

FILE NUMBER(S): CCA CCA 2004/1980

Ms J Manuell Appellant COUNSEL: Mr I Bourke Respondent

The Legal Aid Commission of NSW Appellant SOLICITORS: Commonwealth Director of Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0639

LOWER COURT JUDICIAL OFFICER: Christie QC DCJ

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2004/1980

HUNT AJA GROVE J HALL J

Wednesday 6 APRIL 2005 REGINA v George Francis HENLEY Judgment 1 HUNT AJA George Francis Henley was convicted in the District Court on a number of charges of defrauding the Commonwealth between 1982 and 1988. Judge Christie QC imposed an effective total head sentence of five years and six months, with a non-parole period of three years and nine months. 2 The appeal against conviction and sentence proceeded in the normal way until we were supplied recently with a number of psychiatric reports. These reports brought into play the (NSW) Mental Health Criminal Procedure Act 1990. That Act provides that, where a question is raised as to an accused person's fitness to be tried, the court before which that person is appearing is required to hear submissions relating to the conduct of an inquiry as to whether that person is unfit to be tried. 3 I should add that we were informed by the Crown that the current provisions relating to unfitness to be tried to be found in Division 6 of Part 1B of the (Cwth) Crimes Act 1914 (and, in particular s 20B) did not apply to either the trial or this appeal because of the antiquity of the proceedings. The appellant had fled from the committal hearing in 1988 and avoided recapture for a period of some years. The trial took place in late 2003. 4 In Regina v RTI (2003) 58 NSWLR 438 at 449 (par [31]), this Court held — in the light of authority, including Eastman v The Queen (2000) 203 CLR 1 at 106 — that, if there is material before this Court even on an appeal against conviction which raises a question about the propriety of the conviction because the appellant may have been unfit to be tried, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial, a court conducting an inquiry into his fitness to be tried, acting reasonably, would necessarily have found that the appellant was fit to be tried. The second part of that formulation is effectively a reflection of the proviso to s 6 of the Criminal Appeal Act 1912. It is only if this Court can make a finding in those terms that there will be no miscarriage of justice. 5 In Kesavarajah v The Queen (1994) 181 CLR 230 at 245, the High Court adopted the elaboration by Smith J in R v Prosser [1958] VR 45 at 48, to identify the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice as requiring the ability: (1) to understand the nature of a charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of prosecution; and (6) to make a defence or to answer the charge. 6 The first issue now to be determined in this Court is, therefore, whether there is material which raises a question that the appellant may have been unfit to be tried. As I have said, there are a number of medical reports in evidence. 7 The doctor who has probably had the most contact with the appellant is Dr Michael Boyle, who has been treating him for his HIV disease for more than five years. Although not a psychiatrist, Dr Boyle believes that the appellant has most likely been suffering from schizophrenia. His report dated 28 January 2005 says: It has been my belief for some years that the main reason for his [the appellant's] reticence to have appropriate HIV follow up and necessary blood tests is that he has a paranoid disposition that leads him to conclude that any form of testing or follow up is a form of control that is probably engineered by the state. As long as I have known him, he has tended to have grandiose ideas and a fairly paranoid and secretive manner of behaviour. He has always held firmly the belief that he is a special agent or has some special role in the police force. In the time prior to his arrest, he was always concerned that the police were after him because of some perceived role that he had in uncovering police corruption. Although I am not a psychiatrist, I have always felt his diagnosis is to be one of a chronic psychosis; most likely a schizophrenia. I have seen him on a number of occasions since his admission to Cessnock Correctional Centre. He maintains that he is wrongly imprisoned and really has very little understanding of the nature of the charges against him or of the nature of how his activities were illegal. I believe that he is quite deluded about his role in any criminal activity. In my interviews with him, he has maintained various delusions, including that he has some secret information about Australia's role in the fall of East Timor and that he ha has some secret information about the government's role in the Port Arthur massacre."

8 There are two reports from a consultant psychiatrist, Dr Marina Vamos, who saw the appellant late last year. It is sufficient to refer to her second report which is the more detailed. Her provisional diagnosis was that the appellant was suffering from paranoid schizophrenia, with a differential diagnosis of a paranoid disorder. Dr Vamos recites an even more detailed series of bizarre assertions by the appellant. He told her that his previous psychiatric examinations had not been for clinical reasons, but rather they occurred twice yearly in association with his status as a special agent employed by both the Mossad in Israel and the Secret Service in England. He had also been selected as a special agent by security forces in Australia. He claimed to have flown all over the world and that he had been taught to fly on Royal Air Force jets which had recently been used by Prince Charles. He alleged the participation of the American and Australian governments in the Port Arthur massacre, involving a considerable force of helicopters, in a plot to affect the gun laws. He said that his flight from the committal hearing in 1988 was the result of his becoming aware of a number of threatening looks and meaningful signals which had been exchanged in court, and of being told in a note from the police not to attend the next part of the hearing if he wished to remain alive.

9 Significantly, Dr Vamos also says that many of these what she described as delusions had been expressed to another psychiatrist, Dr Dong Binh Tran, who had examined the appellant prior to his trial and to whose report I will refer shortly. She said that it was extremely unlikely that such similarities could arise by chance. Many of those delusions were also apparent to counsel appearing for the appellant in his trial, to the extent that he had sought and obtained an adjournment in order to have the appellant psychiatrically examined. Dr Vamos says: At the time of my interview with Mr Henley I formed the very strong belief that he was suffering from a psychotic disorder, probably schizophrenia and characterised by profound disturbance of thought. His disturbance of thought included delusions of a complex kind which were held with a firm conviction and which were entirely out of keeping with any possibility of truth. In addition they included delusions which related to the events at the time of his hearing. Then later she says: On the basis of all these facts I feel there is a strong likelihood that Mr Henley was unfit to be tried. He shows an inability to understand his involvement in the charge and I did not feel that he was able to follow the court proceedings in any sensible fashion because of his sense of being in danger there. Given his conviction that he was not the man responsible for the offences in the first place I do not feel he was able to understand the importance of making his defence as effective as possible and therefore as having been under considerable disadvantage in his ability to aid in his own defence.

10 All of those findings are, in my opinion, sufficient to satisfy the tests laid down by the High Court if they are accepted by a jury at the hearing of an inquiry into his unfitness to be tried. 11 Dr Tran recorded a similar, but less extensive, list of assertions made by the appellant. In his report of 8 March 2005, he refers to psychiatric reports given in 1978 and 2005 which, he says, do not reveal any underlying psychiatric disorder. Those reports are not before us. Dr Tran denied having addressed the issue of mental illness when he spoke to the appellant's legal representatives before his trial last year. Nevertheless, in this report he does say in relation to the appellant's psychiatric condition at that time: There was no observed or reported perceptual disturbance. He did not demonstrate any formal thought disorder. His thought content revealed a mixture of grandiose and persecutory beliefs, which did not appear to be of delusional quality.

And, later: Whilst Mr Henley expressed beliefs suggestive of delusional thinking, the fact that his reported accounts were both fragmented and inconsistent would make it difficult to determine as to whether he suffered from a delusional disorder. I would consider the diagnosis of chronic schizophrenia to be unlikely in the absence of auditory hallucinations and formal thought disorder. Based on the available evidence, I am unable to determine whether Mr Henley was suffering from a mental illness or other condition at the time of the alleged offence.

I would consider Mr Henley as being capable of providing instructions to his legal representatives provided that he is prepared to address the relevant legal issues without deliberately avoiding them. The time of the alleged offences was, of course, from 1982 to 1988, but that is not the issue with which we are here concerned. We are concerned at this stage with his fitness to be tried late in 2003, when the trial took place. 12 These views expressed by Dr Tran do conflict with those of the other two doctors which I earlier quoted. It is perhaps relevant to the weight to be given to Dr Tran's views that, if indeed he did not address the issue of mental illness when he spoke to the appellant's legal representatives last year, these views are apparently retrospective in nature. And, of course, the assertions made to him by the appellant, according to his report, were not as extensive as those made to Dr Vamos. The conflict, however, is not an issue for this Court to determine.

13 It is sufficient to say that, at this time, a question has been raised as to the appellant's fitness to be tried in his trial last year. Dr Tran's inability to make the same diagnosis does not establish that a court conducting an inquiry at that time as to his fitness to be tried would necessarily have found that he was fit to be tried. There has been no challenge to the good faith on the part of the Legal Aid Commission in raising the issue. In my view, the solicitors involved in the appeal have acted appropriately in doing so. 14 Nor does any question now arise as to the grounds of appeal which have been filed. The formulation laid down in Eastman v The Queen and applied in Regina v RTI leaves no room for the further application of the proviso to s 6 of the Criminal Appeal Act. However strong the Crown case against the appellant at the trial may have been (and it appears to have been so), the fact that the appellant may have been unfit to be tried at that time means that the Crown case may not have been properly tested.

15 In my opinion, therefore, the orders of this Court should be that the conviction is quashed and a new trial is ordered. It is contemplated by this Court that thereafter the provisions of the Mental Health (Criminal Procedure) Act or any other relevant statute will come into play in relation to the appellant's fitness to be tried in such a trial. 16 GROVE J: I agree. 17 HALL J: I agree. 18 HUNT AJA: The orders of the Court are as I have proposed.

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