The Queen v. Jimmy Johnson

CACC000845/1982

The Judge in a criminal trial is entitled in his discretion to raise the issue of insanity or diminished responsibility of his own motion and ever against the will of the prisoner if the interests of justice appear to him to demand that course - he may also call witnesses on the issue - such a discretionary power is to be used with circumspection - the issue is one to be decided on the balance of probability - Reg. v. Chan Ming Luk [1962] H.K.L.R. 651 and Lo Tin v. The Queen [1963] H.K.L.R. 903 followed.

BETWEEN

Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 22nd June, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was convicted in the High Court of the murder of his son, Henry Johnson, a child just under two years at the time of his death. The jury also returned a verdict of guilty in respect of the second count in the indictment in which the applicant was charged with the false imprisonment of Mr. Chan Wing-fai and his family at 220 Ferry Street, Yaumatei on the 11th of November 1981, the date of the alleged murder.

2. The applicant, who is now about 30 years of age, has an unfortunate family history. He never knew his father and he and his brother were reared in an orphanage. He has had very little contact, since leaving the orphanage, either with his brother or with his mother, who has a history of mental illness, having been treated in Castle Peak Hospital in 1969 for a disorder identified as schizophrenia.

3. The applicant drifted from job to job and became a heroin addict in 1972. He has a fairly long record of petty crime.

4. He married in 1973 but separated from his wife several years later. In 1980 he took up with a woman called Leung Yuk-ying and by her, he had a son who was the victim in the present case. His liaison with Leung did not prosper and she left him some months before the incident with which we are concerned. They had been living together with the child, Henry, in an apartment on the 28th floor of Tak Man House in the Yaumatei district. After Leung left him, the applicant continued to live there with the child.

5. At about 6:30 a.m. in the morning of the 11th of November, the caretaker of that building discovered this small child lying, apparently unconscious, on the pavement of the playground which abuts on No. 220 and is immediately below the row of windows including the window of the defendant's apartment. The caretaker then called for the police. Shortly after that an ambulance arrived and the small boy was removed to hospital but was dead upon arrival. Later examination showed multiple injuries including skull fractures and brain damage which were the cause of death. These injuries were consistent with a fall from a great height.

6. Shortly before the caretaker's discovery, the Chan family in the apartment immediately below that occupied by the applicant, were preparing to settle down to their evening meal. They had earlier heard a noise as of something falling from above and striking the bamboo pole projecting from their balcony as it passed their window. While they were at their meal, the police arrived and went up to the flat on the 28th floor and tried to enter it. The applicant opened the door but did not open the outer metal grille. When the police tried to force a way in, he slammed the door shut. The police were compelled to call upon the assistance of the Fire Brigade and an entry ties forcibly effected but nobody was found within.

7. Meanwhile, the flat of the Chan family had been invaded by the applicant who had climbed on to their balcony from the balcony of his own apartment. He told them that he wanted to phone ICAC and he warned them not to let anybody in. He did make a telephone call, ostensibly to the Independent Commission, and he was heard to say that somebody had pointed a gun at him and had thrown his son down to the street. Thereafter he armed himself with a chopper which he found in the kitchen and, seeing this, Mrs. Chan took her two young sons into a bedroom for safety, leaving her husband and the applicant alone in the sitting room.

8. The applicant went out onto the balcony and was seen there by the police and the Fire Services people in the flat above. Some conversation ensued without result. During this, Mr. Chan managed to slip the keys of his door under the door where they were picked up by a police officer who then entered the flat and the applicant was arrested without further incident.

9. Subsequently the applicant made two statements to the police. These were introduced in evidence after trial of the voluntariness issue.

10. In the first of these statements the applicant said that on his return home in the evening of that day he had found his wife outside his door. He asked her for money and when she refused he went to the kitchen and fetched a chopper intending to threaten her. He said that at that time she was holding the child in her arms. When she saw him with the chopper she was so shocked that she threw the child over the balcony. The suggestion was that this reaction of his wife was involuntary and that the affair was an accident.

11. In the second statement, however, he said that when he returned home on that day he saw a lot of policeman holding guns and pointing them at him. Thinking that his life was in danger and that, if he should die, there would be no one to look after his son, he threw the child out of the window.

12. The applicant did not give evidence and the abnormal. nature of his behaviour must already have apprised the jury of the possibility that at the time of the child's death the applicant's state of mind was not that of a normal person. Nevertheless by the close of the prosecution case there was nothing to suggest that the applicant was putting his state of mind in issue.

13. The court adjourned before the defence was called upon and during the adjournment both Counsel saw the Judge in chambers. Counsel for the applicant made it clear that he was embarrassed by the fact that his client did not wish the question of his sanity to be raised although there were in the possession of the Court two psychiatric reports indicating in the clearest terms that the applicant was suffering from paranoid schizophrenia and that he had been most probably acting under the influence of his mental illness at the time of the offence.

14. Counsel then appearing for the applicant put his position before the Court. The applicant refused to accept that he was suffering from any mental abnormality. His instructions were that he did not wish to give evidence and that he did not wish his mental condition to be considered by the Court.

15. Counsel was in a very difficult position. He was aware of the decision in Reg. v. Chan Ming Luk [1962] H.K.L.R. 651 and felt bound by it. That decision, which was followed in Lo Tin v. The Queen [1963] H.K.L.R. 903, and of which more later, had held in effect that the trial judge can himself raise the issue of insanity. Therefore he was content to abide by the decision of the trial judge in this instant case.

16. The matter was largely argued in Chambers. It was unfortunate that whatever argument was put to the trial judge did not take place in open court in the absence of the jury but with the court stenographer present. It is preferable when there are matters of this kind to be aired that the official record should show what has taken place.

17. After the necessary adjournment and when the court resumed on the following day, the Judge informed the jury of what had transpired. He made it clear that defence counsel was acting on instructions which precluded his calling psychiatric evidence and he told them that he proposed to call that evidence himself and that he would in due course require them to consider the question of diminished responsibility.

18. Thereafter Doctor Iu Pui-chiu and Doctor Yip Ka-chin, the psychiatrists who had submitted the reports, gave evidence in which they repeated the diagnoses appearing in their respective reports.

19. Subsequently the Judge summed up to the jury including in his directions a direction on the question of diminished responsibility to which, so far as the actual terms of it are concerned, no objection is taken. The jury returned a verdict of guilty of manslaughter by reason of diminished responsibility.

20. A single ground of appeal is urged in support of the application. It is said that the applicant was deprived of a fair trial in that the right to conduct his defence was taken from him by the Judge in calling the psychiatric evidence which was not produced or relied upon either by the defence or the prosecution.

21. We have had the benefit of argument based on the researches not only of counsel for the Crown, Mr Alderdice, and of counsel for the defence, Miss Toh, but also of counsel - Mr. Sedgwick - specially instructed at the instance of this court to act as amicus.

22. We have thus had laid before us a thorough and synoptic survey of the present state of opinion and practice in all the major common law jurisdictions.

23. We may start with what appears to be a general consensus in favour of a trial Judge's right, in a criminal case, to call a witness who has not been called by either side, if it seems to him that the interests of justice can only thus be served. This very general principle is established by judicial authority in a line of cases extending as far back at least as Regina v. Chapman (1838) 8 C&P 558 and Regina v. Holden (1839) 8 c&P 607 (the latter affording distinctly the clearer instance.)

24. In Regina v. Frost (4 State Trials M.S. 85) Tindal C.J. (at p.386) stated a rule which has since been widely applied in cases where the prosecution seek to advance rebutting evidence after the close of the defence. The rule has been somewhat variously reported, but in the source cited it is stated in the form that such a procedure is permissible, whether in a criminal or a civil suit, but only "if any matter arises, ex improviso, which no human ingenuity can foresee". Frost was in fact the trial before a Special Commission at Monmouth of John Frost for High Treason. It concerned the Chartist rebellion. The Report occupies three hundred and ninety three pages and the rule by Tindal, C.J. came in the course of argument as a witness was about to conclude his evidence and immediately before the defence summed up its case. That observation was, of course, directed - insofar as it concerned criminal causes - solely to the prosecution.

25. However, in Rex v. Harris (1927) 2 K.B. 587, Avory, J., delivering the judgment of the Court of Criminal Appeal, thought (p.555) that the rule should also apply to a case where a witness is called, in a criminal trial, by the Judge after the defence has been closed. This dictum was approved and followed shortly afterwards in Rex v Liddle (1928) 21 Cr. App. Rep. 3, and later in Rex v. McMahon (1932-34) 24 Cr. App. Rep. 95.

26. In Reg. v. Cleghorn (1967) 2 Q.B. 584, Lord Parker, C.J. (at p.589) citing the earlier cases, emphasizes that the dictum has now become a general rule of practice from which there may, however, be proper occasions to depart. He noted that Reg. v. Tregear (1967) 2 Q.B. 574 - dealt with by the Court of Appeal some eight months prior to the hearing in Cleghorn - was such a case.

27. The Judge in Tregear had called a witness who had not been called by either party, although the matter had not arisen ex improviso at the trial. The appellate court dismissed the appeal, observing that the witness had been called not to support the prosecution case but to ascertain the truth and to put all the evidence before the jury. Taken in its turn as a general principle, that would seem to effect a very broad breach in the rule deriving from Frost and, in Cleghorn, Lord Parker may have had some difficulty with it, for he puts the court's understanding of the result in Tregear in this way:

"The Court of Appeal in Reg. v. Tregear upheld his conduct's" (that is, the Trial Judge's conduct)" in calling that witness on the basis, as this court understands it, that it was really at the request of the defence that the witness was to be called."

28. For present purposes, however, Tregear may afford a useful reminder that in a criminal trial, the ascertainment of the truth is a primary concern in pursuing the interests of justice between the state and its subjects.

29. None of the cases so far considered were concerned with the special issue of insanity, nor, apart from the case of Reg. v. Harris to which I will return, with the difficulty which arises when a defendant expressly opposes the calling of evidence by the Judge.

30. In re Enoch v. Zaretzky, Bock & Co. (1910) 1 K.B. 327, it was held by the Court of Appeal that a Judge has no right to call a witness in a civil suit without the consent of both parties. In Reg. v. Harris (1927) 2 K.B. 587, Avory J. referred to that case and he said: (p.594)

"It also appears to be clearly established that the rule does not apply to a criminal trial where the sole object of the proceedings is to make certain that justice should be done as between the subject and the state."

31. By contrast, in Skubevsky v. R. (1977 & 78) W.A.R. 129, the Full Court of Queensland, answering a question on this point in a case reserved for its consideration by the trial Judge under s.43 of the Supreme Court Act 1935-1975, was unanimously of the opinion that the matter had been laid to rest by the Australian High Court in Titheradge v. R. (1917) 24 C.L.R. 107. In that case, the supreme appellate court of Australia adopted the words used by Fletcher-Moulton L.J. in Enoch v. Zaretzky and held that the principle thus stated was of general application to the administration of justice both civil and criminal". In a joint judgment, Isaacs v. Rich J.J. observed that:

"... it is impossible to see any reason why a Judge has power to call any evidence ex mero motu in a criminal trial except where the Croon raises no objection and, by statute, the accused may and in fact does consent in manner provided by law or where the court has special statutory authority otherwise."

32. In Skubevsky, however, the court acknowledged that a different rule was followed in England. Burt, C.J. (p.134) cites the decision of the High Court in Shaw v. R. (1952) 85 C.L.R. where (at p.379) it is said that "the decisions in England allow the presiding Judge at a criminal trial to call a witness if he thinks the imperative demands of justice require it." No English authority, however, is cited in that passage.

33. A culling of Commonwealth and other Common law precedents, and of academic authority over the whole field displays no great measure of unanimity on these important and related questions:

34. The report of the Royal Commission on Capital Punishment (1949-53) points out (para. 442 and 443) that whereas for 20 years after 1883 the courts had, following the suggestion of the Home Secretary, permitted the prosecution to adduce evidence of unsoundness of mind, this practice had been abandoned following upon a meeting of the judges in 1904 under the leadership of lord Alverstone, L.C.J. The report concludes this aspect of the Commission's deliberations with the plain words: "It has since been accepted as the Law of England that the issue of insanity at the time of the offence may not be raised either by the Judge or the prosecution but only by the defence." The commissioners declined to recommend changes in procedure which would permit the prosecution to raise the insanity issue but they went on to recommend that power be given to the Judge both to raise the issue and to call witnesses thereon. This recommendation has never been implemented by legislation in the United Kingdom. The prosecution has, however, been given some legislative assistance. By Section 6 of the Criminal Procedure (Insanity) Act 1964, it is provided as follows:

35. This measure - for which there exists no parallel in Hong Kong - appears to have given legislative endorsement to judicial opinion in cases such as Bratty v. A.G. of Northern Ireland (1963) A.C. 386 and R. v. Kemp (1952) 1 Q.B. 399 in which it was held that if the accused himself puts the state of his mind in issue - by alleging some unusual condition such as non-insane automatism - the prosecution may adduce evidence to show that the condition was caused by disease of the mind. In the former case, Lord Denning had said that the old notion that only the defence could raise the issue of insanity had gone. In his view (p.411): "... the prosecution are entitled to raise it and it is their duty to do so rather than to allow a dangerous person to be at large."

36. Nevertheless in Reg. v. Simpson 35 C.C.C. 337, we find Martin J. A., in 1977, noting that Lord Denning's dictum had not, as he put it : ".... led to any relaxation of the rule in England that the prosecution is not entitled to lead evidence of insanity where the accused denies that he committed the act."

37. Again, in Adam's commentary on the law in New Zealand, the writer (at p.128, para. 433) suggests that the concluding words of Lord Denning's dictum have not met with general acceptance; but this presumably means only that they have not been used to infer a right in the prosecution to raise the issue where the defendant has not alleged soma abnormal state of mind.

38. The value of the Commonwealth, and also of the American authorities to which we have been referred, is, however, occasionally clouded, for present purposes, by the differing legislative contexts of the various jurisdictions in which pronouncements on the matter have been made and in which there is legislation which may affect the issue.

39. So far as the prosecution is concerned, the law in England, at any rate, would seem to permit the prosecutor to adduce evidence of insanity or diminished responsibility only when the accused has put his own soundness of mind in issue. This course appears to be open to the prosecution quite apart from the special provisions of s.6 of the Criminal Procedure (Insanity) Act 1964.

40. Our present concern however is not with the existence or extent of any right which the prosecution may have to raise the issue, but with the extent of the Judge's right in that regard. In Bratty, Lord Denning not only pronounced a right in the prosecution to raise the insanity issue (a matter upon which the other judges in the case were silent) but he also endorsed the act of Devlin, J. (as he then was) who in R. v. Kemp (1957) 1 Q.B. 399, had himself put the issue to the jury, although it had not been expressly mooted by the defence. Devlin, J. took the view that relying upon a   blackout allegedly caused by arterio sclerosis of the brain as an explanation of the accused's conduct, the defence were putting the accused's state of mind in issue. He declined to make a distinction between disease of the mind and disease of the brain for McNaughten purposes.

41. Professor Glanville Williams (Criminal Law: the general part : 2nd Ed., p.448) asserts that the Judge "is debarred from raising the insanity issue of his own motion." Gresson, J. in Cottle - a case which was considered by the court in Bratty - dissents from this opinion along the line taken by the court in Bratty and it would seem that Professor Williams can only have meant that the Judge cannot do so in the absence of either an allegation of mental disturbance on the part of the defence or else of some substantial indication in the. evidence generally which would have put mental capacity in question. In his later work, he clearly supports Bratty as stating the current development of the law (see Textbook of Criminal Law published in 1978, at p.597).

42. Neither in Bratty nor in Kemp however did the appellate courts have to consider whether the Judge may a) raise an insanity or diminished responsibility issue against the expressed wish of the accused; or, b) call witnesses on the issue.

43. Many of the authorities and writings to which we have been referred are either silent or else speak tentatively on these matters. While therefore we are indebted to counsel for the wide range of their research, in the principal Common Law jurisdictions, in the end it is to our own that we must turn for the most direct authority available on the questions at issue in this case.

44. There are two cases which, taken together, while reserving the question of the prosecution's rights, affirm in clear terms the right of the Judge in a criminal trial both to raise the issue of his own motion, over defence objections, and to call witnesses. Over against these authorities the clearest and most direct opinion to the contrary is to be found in the recent case of R. v. Kooken (1982) 74 Cr. App. Rep. 30.

45. In Reg. v. Chan Mink-Luk (1962) H.K.L.R. 651 - a case stated from the District Court - the accused had been involved in a serious and apparently motiveless assault upon six sleeping colleagues in a dormitory which he shared with them. Sir Michael Hogan, C.J. considered the report of the Royal Commission and a line of cases extending from Rex v. Oliver Smith, 6 Cr. App. Rep. to Bratty (supra). The problem before him was solely whether the Judge at first instance had been justified in calling two psychiatric specialists as to the accused's state of mind. He relied especially on Kemp (supra); Reg. v. Bastian 42 Cr. App. Rep. 75; Rex v. Ireland 4 Cr. App. Rep. 87; Rex v. Hill 7 Cr. App. Rep. 26; Rex v. Taylor 11 Cr. App. Rep. 198 and Bratty (supra) and found that there was at that date no ''firm and crystallised rule of practice, far less a rule of law, that the Judge cannot in any circumstances raise the issue of insanity when it has not been raised by the defence".

46. In finding, as he did, that it was proper for the district Judge to do what he had done, the Chief Justice in Chan Ming-Luk covered both the point as to the propriety of the Judge's raising the issue at all and as to his calling witnesses of his own motion. The question as to whether this could be done against the expressed wish of the accused did not arise, save very belatedly, in the course of the hearing of the appeal, when the appellant said that he did not wish insanity to be raised. The appellate court regarded this point as not being relevant on the appeal because it had not been raised at the trial and therefore made no pronouncement upon it.

47. This latter point, however, felt squarely under survey in Lo Tin v. The Queen [1963] H.I.L.R. 903. In that case the charge was murder and although the accused was found fit to plead there was an abundance of evidence to show that his behaviour both before and at the time of the crime - which involved two particularly dreadful incidents of acid throwing - was that of a person whose mind was disturbed. Croon counsel, in the absence of the jury, brought the contents of a psychiatrist's report to the attention of the Judge. This report disclosed a diagnosis of paranoid delusions. Although both counsel for the defence and counsel for the prosecution wanted the issue of diminished responsibility to be raised the accused himself objected and made it clear that he wished to adhere to his chosen line of defence which was accident, one which was singularly unlikely, on the facts before the court, to have succeeded with the jury.

48. The Judge called the psychiatrist and in summing up, put the defence of accident and also directed the jury on the issue of diminished responsibility. The jury returned a verdict in accordance with the latter direction and the appellant appealed on the sole ground that the Judge had erred in law in introducing ,the issue. At p.911, Rigby, J. says:

"The question must at once present itself as to whether a person of defective mentality is in. fact the best person to decide what is to be his proper Line of defence to a serious criminal charge."

He went on to conclude, on the authority of Chapman, Holden and Reg. v. Wallwork, 42 Cr. App. Rep. 153, that A Judge has a discretion to call a witness not called by either the prosecution or defence, and without the consent of either, if, in his opinion, it is necessary to do so in the interests of justice."

49. In both Lo Tin and Chan Ming-Luk, the accused had been found fit to plead, yet in each case the emphasis of the appellate court is upon the interests of justice rather than upon the right of an individual to insist upon his own line of defence.

50. These two cases would seem to stand virtually alone as direct authority for these points, but they have each attracted approving mention in widely separated jurisdictions, Lo Tin in a commentary in the Criminal Law Review for 1964, at p.135, and Chan Ming-Luk in a Canadian textbook: Schiffer: Mental Disorder and the Criminal Trial process, at p.219-220. The latter commentary suggests that Tregear (supra) may - as the writer puts it - undermine the strength of the decision in Chan Ming-Luk by Limiting its authority to the ex improviso situation.

51. That is a convenient point at which to note that the lines appear to be drawn in this matter between those who regard the interests of justice as the paramount concern and those who regard the intrusion of the Judge or prosecutor as a threat to the integrity of the adversary procedure - a view which is obviously closely associated with the insistence upon the rights of the individual defendant who has been declared competent to plead.

52. A strong endorsement of the latter view is to be bound in Kooken. The accused in that case had murdered another woman under bizarre circumstances. At the trial, evidence, though not upon the depositions, was available from several highly qualified doctors to the effect that. she had been. suffering from a marked degree of paranoid schizophrenia so that at the time of the` killing her responsibility for the act must have been greatly diminished by reason of that condition which had produced in her a violently delusional state. Nevertheless she refused to permit this issue to be pursued by her lawyer and she insisted on a sole defence of provocation. It was a hopeless defence and it was rejected by the jury and she was convicted of murder. On appeal it was argued on her behalf that the Judge should, of his own volition, have advanced the defence of diminished responsibility and that he should also have called the available medical evidence to deal with it. Counsel made the point that the appellant's condition had been such that her power of making the proper decision in the matter of her defence had been adversely affected and he argued that the Judge should, in the exercise of his discretion, have shouldered that responsibility himself.

53. The Lord Chief Justice expressed the strongest doubt as to whether any such discretion existed, but he also said:

"However, it is dangerous to forecast that no possible situation could ever arise in which. the Judge may not have to consider his powers in that respects."

54. Immediately after that he said:

"But tie find it difficult to envisage any situation where a Judge could properly call evidence to this effect in the face of the wishes of the defendant upon whom alone the choice lies."

55. The concluding words are emphasized because they stress the paramountcy, as the court apparently saw it, of the individual's right to choose how the defence case is to be presented. The countervailing argument, stressing the interests of justice, had been advanced by Counsel for the appellant who sought, unsuccessfully, to persuade the court to exercise its powers under s.23 of the Criminal Appeal Act and to call the psychiatric evidence itself.

56. The court did indeed consider the question of the interests of justice but did so within the context of the endeavour on the part o?counsel for the appellant to introduce that issue at the appellate level. The court was necessarily impressed by the fact that the evidence thus sought to be introduced had been available at the time of trial so that one of the criteria for introducing fresh evidence upon appeal would not have been satisfied. Lord Lane C.J. referred to the judgment of Lord Widgery, C.J. in Melville (1976) 62 Cr. App. R. 100 where, in turning down a similar endeavour on the part of counsel, the latter said: "It may well be that if subsequent evidence of diminished responsibility was really overwhelming, the court might well feel moved to substitute a verdict of manslaughter, or to order a new trial."  Immediately after that quotation lord Lane emphasizes the word subsequent in that sentence.

57. Nevertheless, the court in Kooken felt impelled to consider the question of the interests of justice. Their lordship's reason for holding that it was not necessary or expedient in the interests of justice that they should intervene in this way appears to be grounded principally upon the consideration that if such evidence were called, and had the desired result, it would merely mean that the "label of the crime would be changed from murder to manslaughter by reason of diminished responsibility".

58. The-Lord Chief Justice went on:

"Practically speaking, what difference, apart from the label, would intervention by us in the calling of the evidence make?"

59. He concluded that the answer was: no difference", for Kooken would remain in Broadmoor whatever the Court did. There was no doubt that she was very dangerous. It was therefore not proper to say in that case that it was "necessary or expedient in the interests of justice" that the Court should intervene.

60. Lord Lane went on to note that the court would then have to consider merely whether to leave the sentence of imprisonment standing, or to make a hospital order under s.65 of the Mental Health Act 1959. Perhaps we should add that the court also had before it a letter addressed to the Criminal Appeal Office by the appellant, objecting to the raising of the issue of her mental state in terms so forceful, eloquent and lucid that one can readily understand any court hesitating to intervene on the ground that to do so would be in her interest. The point which concerns us - the discretion of the Judge to call such evidence at the trial - was not decided and although the court expressed doubt as to the existence of any such discretion, it must be noted, with all due deference to a source of high persuasive authority, that the arguments of counsel, which appear to have had a considerable influence with the court - in relation to difficulties which might arise by virtue of the exercise of such a discretion - are not particularised. They do not, in any event, seem to have included reference to any of the cases which we have been considering and, in the event, judgment was not reserved.

61. For these reasons we cannot regard the decision in Kooken as sufficiently persuasive to justify us in refusing to follow Lo Tin and Chan Ming-Luk. We think the Judge had discretion to do what he did in this case and that, in the circumstances of the case, he exercised it properly. Needless to say every case must stand upon its own facts and, as in all eases where a discretionary power is in the hands of the trial Judge, his actual exercise of it may legitimately become the subject of question upon appeal.

62. It would not be proper for us to attempt to limit a judge in the exercise of his discretion for then it ceases to be one. But a matter of prime importance which must exercise the mind of a judge called upon to act in circumstances such as those in the instant case is whether or not he would, by calling evidence of the mental state of an accused and against the wishes of that accused, be impinging upon the possibility of an outright acquittal. This is particularly so when an accused has given exculpatory evidence and a jury might well be influenced on the question of his credibility by the calling of such evidence or indeed on the issue of whether or not he committed the offence complained of.

63. We would emphasize that we have been considering solely the question of evidence of mental abnormality. We would not wish anything which we have said in the course of this judgment to be taken as giving a trial judge carte blanche so to speak to call evidence, against the wishes of an accused, on issues other than insanity.

64. That having been said, two subsidiary matters remain to be considered. In following the Lead of the two earlier Hong Kong cases we are aware that we must rely upon the very general principle that in the individual case it may be in the interests of justice to call a witness called by neither party whether or not objection to that course is taken by either party. So stated the principle is already an extension of the principle deriving from the English cases - most of which have been cited already - which approve a discretion in a Judge to call a witness in the interests of justice. In addition to the cases already cited, that principle has been approved in the Court of Appeal in England also in Reg, v. Oliva (1965) 3 All ER 116 and Reg. v. Wallwork (1958) 42 Cr. App. Rep. 153 (where it is particularly plainly and widely stated by Lord Goddard at page 159).

65. In none of these cases however was the Court of Appeal considering the question of insanity and more especially the question of the introduction of insanity over the objection of the accused. Inevitably there will be cases - Kooken appears to be a good example - where the court will be reluctant to approve the exercise of a discretion which takes away the right of an individual, however mentally impaired, to assert his independence of choice in the very forum where that right is held most sacred. Undoubtedly the highest courts in other jurisdictions have hesitated to recognise such a discretionary power. (see, for example, Goldstein "The insanity Defence" page 187 for a recent American view). The former objection that a finding of guilty but insane left open to the accused no right of appeal since the verdict was then equated with a verdict of acquittal has long since been remedied by legislation. There remains however the serious objection that introducing the issue in this way against the wishes of the accused may prejudice his legitimate interests if, being fit to plead, he has decided that he wishes to concentrate on rebutting the evidence and gaining an acquittal. It would also conflict with such a partial defence as provocation since the jury, with such evidence before them, might well be disinclined to give much weight to his testimony.

66. In a fitting case however, the balance is surely in favour of the public interest as distinct from the interest of the individual defendant. In Reg. v. Simpson (1977) 35 C.C.C. 337, Martin, J. A., considering this very problem, observed:

"It is not always possible, however, in the administration of the criminal law, to give complete protection to competing interests and the balance must frequently be sought and maintained between them."

67. Clearly this is a power which will need to be exercised with circumspection.

68. There will be cases where the proper exercise of the Judge's discretion will favour letting the defendant do what he wishes, and other cases when it will be properly exercised in the public rather than the private interest. Which way it will be exercised in the individual case will have to be Left to the good sense of the trial Judge. Nor can we see that this principle, albeit emanating from the older cases such as Chapman and Holden, can reasonably be fettered by limiting it to cases in which the question of the accused's state of mind has arisen ex improviso. There will be cases when it is quite apparent from the outset of the trial, and perhaps even before that, that the soundness of the accused's mind at the time of the event is in question. We cannot see any good reason why this exceptional discretionary power should not be exercised equally where that is the case as where some late development in the trial has brought the issue to the surface.

69. Finally, we think that where the issue has been raised by the Judge in this way and evidence called in support, the proof of diminished responsibility or insanity should be upon the balance of probability only (see Cottle 1958 NZIR at page 1014; and R. v. Grant: 1960 C.LR 424).

70. In the present case we can find no reason to suggest that the trial Judge erred in exercising his discretion in the way he did. The application must be refused.

Representation:

Miss Esther Toh (D.L.A.) assigned for Appellant.

G. Alderdice for Respondent/Crown.

A.W. Sedgwick acts as amicus curiae.