26 October 2011

Anxiety and Justice

Noted R v Wade [2011] QCA 289 in which the Queensland Supreme Court has allowed Bowan Wade to withdraw his plea of guilty to murder.

Media reports indicate that Wade was 19 at the time of the killing in 2009. There is no indication of his background.

The Court found that Wade did not plead guilty in the exercise of his free choice. It found instead that Wade pleaded guilty in a desperate attempt to terminate the criminal proceedings, which he found unbearably anxiety-producing. There was psychological evidence that Wade experienced a heightened state of arousal when confronted with a situation for which he was not prepared and did not deal well with large crowds of people.

In his affidavit for the appeal Wade stated that -
When in prison for the [murder] he was a voluntary patient with the prison mental health service for about 18 months during which time he was prescribed the drugs Avanza, Seroquel, Valium, Zyprexa and Risperidone. He said he didn't know what diagnosis he had been given or what the drugs were meant for. He stopped taking his medication "in about November or December 2010". Some psychiatrists were telling him he did not have anything wrong with him but others were telling him to keep taking the drugs. At the time of his guilty plea, he was not taking any medication. He considered that, after ceasing his medication, he was "less able to deal with stress and ... would sometimes blurt out things that [he] shouldn’t say".
Wade had requested to not be present at his trial and requested that his legal representatives provide him with witness statements to read during the trial so as to distract him from his environment. He had maintained to his legal representatives that he was not guilty of murder. Those representatives can, of course, advise but not make decisions on a defendant's behalf.

Muir JA concluded that -
The appellant, when in prison prior to his trial, had been taking what Dr Frey described as a bewildering array of psychotropic medications "including a major tranquiliser", "an anti-psychotic ... sometimes also given in extreme cases of anxiety". There was evidence that the appellant was subject to panic attacks and became anxious "when confronted with new situations and large groups". He was "housed in a small unit at the gaol because he doesn’t cope well with crowds of people". He had said that he didn’t want to be present in court during his trial and had queried the necessity for his presence.

The appellant’s conduct described by [his representative], and revealed by the transcript of proceedings at first instance, was consistent with the behaviour of a person suffering from a panic attack and/or pronounced anxiety. Part of this conduct was the appellant’s request to be furnished with witness statements to read during the proceedings so that he could divert his attention from his surroundings, assisting him to control his outbursts. The evidence establishes to my satisfaction that the appellant’s intention to plead not guilty to murder, to which he had consistently adhered, was overwhelmed by his desire to escape from the courtroom as he felt he would be unable to cope.

The appellant's evidence, supported by the evidence of the psychologist ... shows that the appellant’s response to the environment he found himself in on 21 March 2011 went beyond the feelings of stress, pressure and agitation that would normally be felt by an accused in the appellant’s situation. The appellant’s mental and emotional state was such that his ability to make a rational decision on how to plead was substantially impaired. As a result, his plea of guilty could not be said to have been made in the exercise of his free choice.

On the present state of the evidence, the appellant has an arguable case in respect of the murder charge. The medical evidence does not point unequivocally to an intention to cause grievous bodily harm or kill. Although the appellant made admissions which were damming on their face, he told different people different things, weakening the evidentiary value of the admissions. Also the admissions most harmful to his defence are inconsistent with the medical evidence. For the above reasons, the appellant has established that there was a miscarriage of justice and that the guilty plea should not stand.
Chesterman JA similarly concluded that -
It is to be expected that every accused in a criminal trial will experience one or more of a variety of emotions; anxiety, fear and tension which, in turn, are likely to produce agitation and/or depression. The degree of the emotion experienced will often be extreme. The fact that an accused experiences such emotions and pleads guilty either because of them or while affected by them will not, at least ordinarily, be a reason for not accepting a plea of guilty as a true confession of guilt. For that to happen, as the cases show, "there must be a strong case and exceptional circumstances".

The evidence of Dr Frey is just sufficient to make the case exceptional. The level of emotional distress and panic with a consequential inability to cope with the trial can be seen to have deprived the appellant of the capacity, at the time when called upon to plead, to make a free choice in his own interests. The appellant’s mental state at the commencement of the trial was abnormal. Although conscious of what he was doing, and of the consequences, the plea was compelled by psychological processes which took from him a sufficient degree of self control and awareness of his own interests that to allow the conviction to stand would amount to an injustice.

A relevant factor in concluding that the conviction should be set aside is that it is for the most serious offence known to the criminal law, and the only one which carries a mandatory term of life imprisonment. The consequences for the appellant are so serious it is easier than in other cases to discern a miscarriage of justice if the conviction were allowed to stand.
The Court ordered that the appeal be allowed, Wade's guilty plea be set aside, his conviction be set aside and that there be a re-trial.

That trial will presumably grapple with inconclusive medical evidence as to cause of death and incriminating admissions that were disputed or demonstrably wrong.