Application of Philip Spiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

This is an application brought by Mr Phillip Spiers (the applicant) pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking referral of a number of convictions entered against him in the District Court of New South Wales to the Court of Criminal Appeal, so that they may be dealt with as appeals against conviction.

As is clear from the written submissions of counsel for the applicant of 17 June 2016 and 26 September 2016, and the written submissions of counsel for the Attorney-General of 19 September 2016, there is no dispute between them about the test to be applied by me. It is to be conveniently found in the judgment of Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [6]:

In short, the question that I must answer is whether, on all of the material and submissions placed before me, I experience unease or a sense of disquiet about the convictions entered against the applicant.

The events giving rise to the application may be conveniently stated by way of an extract from the judgment of the New South Wales Court of Criminal Appeal in the Crown appeal of R v Spiers [2008] NSWCCA 107 at [7] – [21]. That extract appears without contradiction in the written submissions of counsel for the applicant, and I infer from that fact that it is undisputed. For ease of comprehension of the reader, I have altered every reference to “the respondent” to “the applicant”.

The following further details of the interaction between the applicant and the complainant (which did not appear in the précis of the Court of Criminal Appeal) are to be found in the agreed facts placed before the sentencing judge, without objection by the applicant, whilst represented by senior counsel.

First, the applicant was wearing a rubber kitchen glove on his right hand when he first approached the complainant.

Secondly, a witness had observed the applicant walking in and out between the cars parked in the car park over an hour before the applicant first approached the complainant. The complainant herself had observed the applicant reverse his direction of walking after she parked her car.

Thirdly, when the applicant first approached the car of the complainant he asked her what the time was.

Separately, nor do I understand it to be disputed that the following events occurred between the events recounted in the extract that I have provided, and the arrest of the applicant many years later. Again, it is convenient to extract the summary of those intervening events from the judgment of the Court of Criminal Appeal at [23] – [28]:

Separately, there is no dispute between the parties about the following chronology.

On 20 September 1997, the applicant was hospitalised in Bulahdelah, because he had been bitten by something (presumed to be a venomous spider), and thereafter suffered some medical complications. He was treated with several medications, including promethazine (commonly known as Phenergen). After the Phenergen was administered, the applicant lost consciousness and had to be resuscitated by staff at the hospital.

The applicant was thereafter transferred to the Newcastle Mater Misericordiae Hospital in order to receive further treatment in its intensive care unit. He was discharged on 21 September 1997, but re-admitted on 22 September 1997 after suffering a severe headache. The applicant was finally discharged on 25 September 1997, with a diagnosis of meningeal irritation (irritation of the brain tissue) secondary to a viral illness.

The sexual and other crimes detailed at [4] above occurred between 2 October and 3 October 1997.

The applicant did not see a doctor between 25 September 1997 and a date many months after the events of 2 October 1997.

It was on 14 December 2005 that the NSW Police arrested the applicant, subsequent to his former de facto partner providing information to them.

On 15 November 2006, the applicant entered pleas of guilty in the Local Court at Newcastle to the following offences: kidnapping; unlawfully administering a stupefying drug with intent to enable the commission of an indictable offence (the offence being sexual intercourse without consent); and aggravated sexual assault (the circumstance of aggravation being that, at the time of the offence, the applicant threatened to occasion actual bodily harm to the complainant by means of an offensive weapon, that being a knife). The following offences were placed on a Form 1: aggravated robbery; assault; and two instances of obtaining a benefit by deception. All of these charges arose from his interactions with the complainant detailed above.

On 29 October 2007, the applicant adhered to his pleas of guilty in the District Court of New South Wales at East Maitland.

On 31 October 2007, Judge Berman SC convicted and sentenced the applicant to an overall head sentence of imprisonment of 8 years with a non-parole period of 6 years.

On 23 May 2008, the New South Wales Court of Criminal Appeal upheld the Crown appeal against sentence, and re-sentenced the applicant to an overall head sentence of imprisonment of 12 years with a non-parole period of 9 years. The first date upon which the applicant was eligible to be released to parole was 28 October 2016. No evidence was placed before me as to whether that occurred or not.

The fundamental proposition of counsel for the applicant is that there is a doubt or question about the guilt of the applicant of the three offences to which he pleaded guilty, and the four offences on the Form 1. That doubt is said to arise from a plethora of psychological, psychiatric, neurological, and toxicological evidence that was placed before me. In a nutshell, it is submitted that I would have a doubt about whether the acts of the applicant on 2 October 1997 were voluntary, and therefore whether the applicant is, in truth, criminally liable for them.

To summarise that evidence with great succinctness, Professor Paul Moffit, retired consultant medical practitioner, has expressed the opinion that the applicant:

Dr Yolande Lucire, forensic and medico-legal psychiatrist, has expressed the opinion that “the rape was committed in a state of serious brain dysfunction”; she diagnosed the applicant with medication-induced akathisia [a condition characterised by severe restlessness, aggression, suicidality, toxic hallucinosis, behavioural dyscontrol or toxic behaviour, and which varies from transient discomfort to full-blown delirium] and delirium [an acute disorder of the mental processes accompanying organic brain disease]; and stated that the applicant “can be described as being in a state of medication-induced delirium, as described. His mind and will were non-functioning, whereas his body was acting as an automaton”.

Dr Michael Robertson, clinical and forensic toxicologist and chemist, expressed the opinion that it is “reasonable to assume that on October 2nd Mr Spiers may have been experiencing some drug-related complication”, and that “in the absence of a similar or more competent cause, the residual affects of an acute toxic dose of Phenergan (i.e. NMS [neuroleptic malignant syndrome, a neurological disorder most often caused by an adverse reaction to drugs] or some other paradoxical reaction), perhaps in combination with Panadeine Forte, cannot be excluded as at least a contributing to his unexplained behaviour at or about the time of the incident”.

Professor James Lance, consultant neurologist, expressed the opinion that the applicant suffered two “thunderclap headaches”, and that he “may well have suffered from confusion, impairment of memory and disinhibition as a result of this condition”.

Dr Jeanette Stewart, clinical neuropsychologist, has expressed the opinion that “there would appear to be evidence that [the applicant] may have suffered a neurological event in September 1997… It is possible that his current profile, highlighting as it does, some cognitive weaknesses, may well reflect long-term recovery of cognitive functioning after such an event” (emphasis in original).

Dr Cadogan, consultant emergency physician, has expressed the opinion that “it would appear that the [applicant] suffered a spider bite, most probably a Redback spider bite with local and systemic signs/symptoms of envenoming”. In support of that opinion, Dr Cadogan has referred to: documentation about the applicant being bitten; evidence of a lesion at the site of envenoming; local pain at the bite site; a puncture mark at time of presentation; progressive development of systemic toxicity; tachycardia [a fast heartrate]; hypertension; profuse sweating; and headache and blurred vision.

Dr Westmore, forensic psychiatrist, has said that “I believe on the balance of probability, based on the accuracy and reliability of his history, that he was suffering the residue effects of an acute brain injury (probably a resolving delirium/confusional state) at the time the offending behaviour occurred”. Dr Westmore also noted the “very specific and goal directed nature of his behaviour”, and stated that “probably he knew the nature and quality of his actions”.

Emphasis was also placed by counsel for the applicant upon the fact that the applicant had not been convicted of any serious offences before these ones (although there was a very minor entry on his criminal record).

Evidence was also placed before me that the applicant had “not been himself” in the period after his discharge from hospital on 25 September 1997, and before and after 2 October 1997. In particular, there was evidence that the applicant had experienced memory problems, sore muscles, headaches, and a rash. He had slept a lot more than usual, had not eaten much, and had appeared tired and worn out. His former wife has stated that it took about three months for the applicant to return fully to being the person he was before he was seemingly bitten by the spider. On the other hand, during that period he was working as a service manager in the motor industry, a role that he had performed for some time.

Finally, an ancillary criticism is made by counsel of the lawyers who appeared for the applicant at the time of the entry of his pleas of guilty, his conviction and sentencing, and the successful Crown appeal against sentence. It is noteworthy that the material placed before me shows that two of those three lawyers were members of the inner Bar, and two of the three are deceased.

The ancillary criticism, however, is very much based on the primary ground of the application: it is said that, in truth, because there was and is a very real question about the guilt of the applicant (founded in turn on the question of voluntariness), far deeper investigations of his mental state should have been undertaken. Concomitantly, he should not have been advised to enter his pleas of guilty; that having occurred, his lawyers should have sought to have them withdrawn.

Contrary to the submission of counsel for the Attorney-General, I do not propose to refuse to consider the application pursuant to s 79(3) of the Crimes (Appeal and Review) Act. Rather, I consider that the most convenient course is to deal with the application on its merits.

Turning to my determination, it is unquestionably the case that, for an act to attract criminal liability, it must be voluntary: Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2; Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; and Penza and Di Maria v R [2013] NSWCCA 21.

By a voluntary act, I mean a conscious and willed movement of the muscles by the person alleged to have committed a crime. Because the concept focuses on a willed movement, as opposed to a state of mind, the element of voluntariness is to be understood as a physical element of an offence, not a mental element. And it is to be contrasted with mental elements, some of the more well-known of which are intention to bring about a result; recklessness by way of foresight of a possibility or (in the case of murder) a probability; and knowledge of or belief in a state of affairs.

Some well-known examples of involuntary acts are: the muscular movements caused by an epileptic fit; reflex actions; and sneezing.

Secondly, it is true that the concept of automatism has gained some prominence in the criminal law in the half-century since the decision of the House of Lords in Bratty v Attorney-General for Northern Ireland [1963] AC 386. But a state of automatism is to be understood as a matter of evidence going to the question of voluntariness, not as a determinative element of an offence or defence in the criminal law. The question is whether the accused did a voluntary act in the sense that I have discussed.

Thirdly, the fact that, on the one hand, the Crown bears the onus of proving all of the elements (including voluntariness) of an offence, beyond reasonable doubt; and, on the other hand, an accused person bears the onus of establishing the defence of mental illness, on the balance of probabilities (pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)), has led to conceptual difficulties when proof of voluntariness is resisted on the basis of automatism. The solution of the criminal law has been that, if the alleged automatism is founded upon a “disease of the mind”, then the accused is said to be, in fact, relying upon the defence of mental illness, by way of insane automatism. If the alleged automatism is not founded upon a disease of the mind, the accused is relying upon sane automatism, and simply putting the Crown to proof of the elements of the offence. The solution is perhaps most clearly to be seen in Youssef v R (1990) 50 A Crim R 1.

As one might expect, there is a marginal area in which it is by no means easy to determine whether sane or insane automatism is being relied upon by an accused person. That is because mental conditions and abnormalities do not readily admit of rigid classification as to whether they are or are not a “disease of the mind”.

Fourthly, if an accused successfully relies upon insane automatism, the appropriate verdict is not guilty on the ground of mental illness, with the result that the accused will be detained indefinitely in a mental hospital: see s 39 of the Mental Health (Forensic Provisions) Act. On the other hand, if an accused person successfully relies upon sane automatism, the Crown has failed to prove an essential element of its case, and the appropriate verdict is an acquittal simpliciter.

Fifthly, it is true that there have been cases in which sane automatism has been permitted to be relied upon in support of a submission that the applicant should be found not guilty simpliciter, even though the accused was seemingly undertaking complex and rational acts said to constitute a criminal offence.

For example, in R v Quick [1973] QB 910, while suffering from hypoglycaemia said to be caused by diabetes, the accused inflicted two black eyes, a fractured nose, a split lip, and bruising upon a disabled patient at the mental hospital in which he was employed. In The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49, the accused was said to have entered a dissociative state after being sexually assaulted by her husband, and obtained and fired a shotgun, killing him. In each case, the evidence about the state of mind of the applicant was able to be considered by the jury with regard to the question of voluntariness.

Still and all, the touchstone is whether the allegedly criminal acts of a person were voluntary, in the sense of them being the conscious and willed acts of that person.

Having provided that thumbnail sketch of the applicable law, I turn to apply it to the undisputed facts about the conduct of the applicant on 2 October 1997.

I respectfully consider that the undisputed evidence is overwhelming that the actions of the applicant on that day were conscious, willed, and deliberate. I say that for the following reasons.

First, the applicant took advantage of an opportunity to commit the offences when his wife and children were not present at their home. That suggests that he was well aware that what was to occur would meet with the severe condemnation of his wife, and could not be revealed to his children.

Secondly, the applicant obtained a knife, a glove, and duct tape prior to the incident. I shall discuss those facts in more detail later.

Thirdly, the applicant had been observed waiting in the car park for a period of time before the complainant arrived and he approached her. That suggests a settled intention, not an irrational or uncontrolled outburst.

Fourthly, the applicant utilised a ruse, whereby he asked the complainant the time when he first approached her. That suggests an appreciation of the need to put the complainant at ease at that stage. It is also a very commonly used method of distraction of the victim adopted by persons who are about to commit an offence against him or her.

Fifthly, the applicant explicitly informed the complainant of his intention, telling her “I just want to have sex”. That suggests that a goal had been set, and that what occurred after that statement was made was directed towards achieving that goal.

Sixthly, the applicant drugged the complainant with tablets and alcohol, and told her “These will help you sleep, so you won’t remember as much and it won’t hurt”. That suggests that the applicant appreciated that the substances were sedating; that the complainant would be more readily managed if sedated; and that her memory (and therefore her ability to identify him subsequently) could be compromised by that sedation.

Seventhly, the applicant wiped the body of the complainant and flushed her vagina with methylated spirits after the sexual assault, and told her “You can tell or go to the police, but they won’t catch me, as I wiped your car down as well”. I shall discuss those actions in much more detail later.

Eighthly, the applicant asked the complainant for her phone number. After putting her in her car boot and leaving the vehicle in a car park, he called her family several times, over a number of hours, to ensure that they located the complainant. The next morning, he called again, and told the complainant’s father “I’m the person responsible for [complainant]. She’s got no worries; I’ve got no diseases except a mental one”.

The use of the telephone and the narration of what he had done strongly suggests that the mind of the applicant was engaged, both during his criminal acts and afterwards. In particular, it suggests that the applicant well appreciated that, if not rescued from the boot, the complainant (who was semi-naked and bound) could die.

Ninthly, the applicant stole the ATM cards of the complainant and asked for her PIN number, which she provided. Over the next few days, and by way of a number of different transactions, he dishonestly withdrew a total amount of $800. All of that suggests that, at the time of the attack upon the complainant, the applicant well appreciated that possession of an ATM card combined with its PIN number can result in the provision of cash. And cash is exactly what the applicant subsequently obtained.

Tenthly, the applicant retained some of the property of the complainant, and told her that he would return it to her if she did not talk to the police. When he later saw an identikit picture on the news that appeared similar to his appearance, he realised that the complainant had talked to the police, contrary to his demand. He threw her property into the bin as a consequence. In other words, to the extent that the applicant considered that the complainant had broken their purported agreement, that suggests that he regarded it as having been set at nought. Furthermore, he acted upon that subsequent assessment.

Eleventhly, the applicant told his former de facto partner a number of details of the offences about which he later told police he had no memory. Those details included: that he had taken the complainant to his own house; that he was aware that the complainant had a boyfriend, and expressed concern about future intimacy between them as a result of the assault upon her; that he had put the complainant in a sexual position whereby she would be unable to look at his face constantly, in order to decrease the chance that she would remember it; that the complainant was menstruating at the time of the sexual assault; and that he was under the impression that the complainant was enjoying his crimes.

He further recounted that he had telephoned the family of the complainant; that he had taken her property, and money from her accounts; that he saw his picture (that is, the identikit image) in the paper, and grew a beard and moustache after becoming concerned that people would identify him; and that he had escaped punishment for his crimes because the police had charged another man.

The entirety of that recitation, many years later, setting out as it does not only what the applicant did but also why he did it, is completely consistent with the applicant having undertaken voluntary acts that were conscious, willed, deliberate, rational, and displayed a consciousness of guilt. Indeed, they displayed a cunning purposefulness.

Separately, to analyse more deeply for the moment the behaviour of the applicant prior to his crimes against the complainant, his possession of a knife, duct tape, medication, and a glove, on a day when his wife and children were away from the home, very powerfully evidences a premeditated plan to terrify, to restrain and silence, to drug into vulnerability, and to conceal inculpatory scientific evidence, in the absence of witnesses.

Similarly, to analyse more deeply for a moment the deplorable and degrading action of washing out the vagina of the complainant with a cleanser after having raped her, I consider that it is very powerful evidence of the following.

First, the muscular movements of the applicant (by that I mean, holding the bottler of cleaner, opening its lid, and applying its contents to the person of the complainant) were unquestionably willed movements. They do not remotely resemble reflex or spasmodic actions.

Secondly, they evidence an understanding that the applicant, having ejaculated inside the body of the complainant, had deposited his semen there.

Thirdly, they evidence an understanding that the complainant could well inform the authorities of the fact that he had had penile/vaginal intercourse with her without her consent.

Fourthly, they evidence an understanding that a swab could be taken from the person of the complainant.

Fifthly, they evidence an understanding that the semen of the applicant could, on analysis, identify him as the perpetrator.

Sixthly, they evidence an understanding that washing out the genitals of the complainant may go some way to removing that potential scientific evidence.

Seventhly and finally, in other words, far from having the flavour of an involuntary act, the act of applying a chemical to the genitals of the complainant was very powerful evidence of a consciousness of guilt on his part. Indeed, the applicant spoke of that very topic to the complainant, whilst he was performing those actions.

In short, even confining my detailed analysis to two small portions of the actions of the applicant on 2 October 1997 – his preparations, and a particular step taken to defeat scientific evidence – they are (I respectfully consider) thoroughly inconsistent with a person who was behaving involuntarily at the time of his criminal actions.

In short, whether or not the applicant was suffering from some sort of psychological, psychiatric, or intellectual deficit or condition as at 2 October 1997 (whether induced by medication, venom, or otherwise), is not the question. Nor is his claimed subsequent lack of memory the question. Rather, the question is whether I experience a doubt or sense of disquiet about the proposition that one can be satisfied beyond reasonable doubt that, on that day, the actions of the applicant were conscious and willed acts. With due respect to medical experts who have expressed a contrary opinion, I experience no doubt about that proposition, for the reasons that I have explained.

Similarly, because the ancillary criticism of the previous lawyers of the applicant is based upon their approach to the question of voluntariness, I do not consider that there is anything about their professional conduct that calls for referral of the matter to the New South Wales Court of Criminal Appeal.

The result of all of the foregoing analysis is that the application must be dismissed.

I make the following order: