By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates
18 August 2022
The reasons for the extraordinary case of R v Gibson, were delivered by the Court of Appeal on 16 August 2022 after a hearing on 31 May 2022. This case involves an attempt by Mr Gibson to persuade the court he was unfit to enter pleas of guilty when convicted in 2013, 2015 and 2016 before the Cairns District Court.
There was no contemporaneous evidence that Mr Gibson was not fit to enter pleas of guilty on any of the three occasions between August 2013 and August 2016. Mr Gibson relied upon two reports by Dr Russ Scott, a forensic psychiatrist, dated 1 October 2019 and 1 April 2021.
Admissibility issues
The crown opposed the application for an extension of time for the appeal on the ground that Dr Scott’s opinion evidence was inadmissible. The Court acceded to both parties’ requests that it decide whether that evidence was admissible before disposing of the application.
After hearing argument upon that question, the Court ruled that the evidence was inadmissible. The Court indicated that reasons for the ruling would be published in due course, but that a primary basis for the ruling was the absence of a statement of reasoning by which Dr Scott’s opinion was reached with reference to the underlying factual substratum.
The Court then adjourned the further hearing of the application to allow Mr Gibson further time to decide what course he wished to take.
Mr Gibson subsequently abandoned his proposed appeal.
The Court Reasons
In R v Erskine,[1] the Lord Chief Justice stated:
“Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of the trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead.”
Dr Scott’s Report
In Dr Scott’s report dated 1 October 2019, he opined:
“As early as when he entered pleas to the offences he was alleged to have committed in March 2013, Mr Gibson’s cognitive deficits were such as to deprive him of the capacity to meaningfully participate in criminal proceedings (that is, Mr Gibson has never been ‘fit to plead’ or ‘fit for trial’ in relation to any of the alleged sexual offences).”
When is Expert Opinion Evidence Admissible?
The criteria which must be met if expert opinion evidence is to be admissible include that:
- So far as the expert’s opinion is based on facts observed by the expert, those facts must be identified and proved by the expert in an admissible way;
- so far as the opinion is based upon assumed or accepted facts, those facts must be identified and proved in some other way;
- it must be established that the facts upon which the opinion is based form a proper foundation for that opinion; and
- the expert’s evidence must explain how the field in which the expert has expertise applies to the facts assumed or observed in order to produce the opinion expressed by the expert.[2]
Determining Fitness to Plead
The manner in which fitness to plead is determined finds its foundation in R v Presser.[3] It was said in Ngatayi v The Queen[4] that the test “looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order” and “it has never been thought that a person can escape trial by simply showing that he is of low intelligence”.
It was therefore not necessary for Mr Gibson to establish he was not fit to plead. To be successful in this application Mr Gibson simply had to establish there was a miscarriage of justice, and such a miscarriage of justice is established if the Court concludes that Mr Gibson may not have been fit to plead and stand trial.[5]
The Court’s Determination
The Court determined the evidence of Dr Scott did not rise above the level of assertion. The court found the evidence did not reference a factual basis for the conclusions or any reasoning which related them to the balance of the report which addressed Mr Gibson’s current mental state. The Court determined the reports were inadmissible because there was an absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions.
Appeal Ruling
In this case the Court was never required to rule on the appeal itself because the evidence being relied upon to ground the appeal was ruled inadmissible. This appeal demonstrates the importance of understanding the evidentiary principles which first must be met by an expert before purported expert evidence will be accepted and relied upon by a Court.
[1] [2010] 1 WLR 183 at [89].
[2] See Heydon JA’s examination of this topic in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and the detailed analysis of that and other authorities by Bond J (as Bond JA then was) in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 at [94] – [100].
[3] [1958] VR 45.
[4] (1980) 147 CLR 1 at 8.
[5] Eastman v The Queen (2000) 203 CLR 1 at 106 [319] (Hayne J).
