Adanguidi v The King - [2024] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Adanguidi v R [2024] NSWCCA 82
Hearing dates: 9 May 2023 – 11 May 2023
Date of orders: 14 June 2024
Decision date: 14 June 2024
Before: Garling, Fagan, McNaughton JJ
Decision:
Appeal dismissed

Catchwords:
CRIME – Appeal and Reviews – Referral under Part 7 Crimes (Appeal and Review) Act 2001 – Court’s own motion – Dealt with on appeal.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence at the appellant’s trial – Whether such additional evidence is capable of establishing a reasonable doubt about the appellant’s guilt.
CRIME – Appeals – Appeal against sentence – Where three life sentences were imposed – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence in the appellant’s sentencing proceedings – Whether such additional evidence, if available to the sentencing Judge, would have resulted in a lesser sentence.

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Mental Health (Criminal Procedure) Act 1990 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295
Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442
EC v R [2023] NSWCCA 66
Lawless v The Queen ; [1979] HCA 49; (1979) 142 CLR 659
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259;
MRW v R [2011] NSWCCA 260
R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Bikic [2002] NSWCCA 227
R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Ratten v The Queen (1974) 131 CLR 510
R v Crespin Adanguidi [2005] NSWSC 519
Sodeman v R [1936] HCA 75; (1936) 55CLR 192
Xie v R [2021] NSWCCA 1

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Crespin Adanguidi (Appellant)
The Crown
Representation:
Counsel:
B Rigg SC / S De Brennan (Appellant)
G Newton SC / C Akthar (Crown)
Solicitors:
Hal Jon Ginges & Company (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2003/6089
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 442

Date of Decision:

14 April 2022

Before:

Dhanji J

File Number(s):

2003/6089

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 April 2005, Crespin Adanguidi (the appellant) was convicted by a jury of three counts of murder, which occurred in the early hours of 1 February 2003. On 3 June 2005, the appellant was sentenced to life imprisonment with respect to each count.

On the evening of 31 January 2003, the appellant invited his friend Mr Raymond Shen to his apartment. After spending some time together in the appellant’s apartment, the appellant took out a pistol, struck Mr Shen on the back of his head, and gagged and bound Mr Shen. Over several hours, the appellant made demands for money and valuable items from Mr Shen. After some time, the appellant left his apartment, leaving Mr Shen bound and gagged inside, and stole Mr Shen’s car and the keys to his apartment.

The appellant went to Mr Shen’s apartment building in Rockdale. The appellant used Mr Shen’s keys to get inside. Inside the apartment, while the appellant was stealing money and valuable property, he was confronted by Mr Shen’s son, Mr Pin Shen. The appellant shot Mr Pin Shen through the head at close range, and he died immediately. Mr Shen’s daughter, Ms Christy Bo Shen, attempted to call triple 0. The appellant shot Ms Christy Bo Shen through the back of the head from close range. She died immediately. The appellant attacked Mr Shen’s wife, Ms Shiquin Zhu (“Mrs Shen”), with the pistol however he did not shoot her. The appellant physically assaulted Mrs Shen over some time, eventually beating her to death. The appellant left the apartment and stored the stolen goods and incriminating items at an acquaintance’s apartment. The appellant was arrested later that morning after Mr Shen escaped from the appellant’s apartment and notified police.

Following his conviction in a trial by jury and his sentences of life imprisonment, in 2006 the appellant was granted leave to appeal against his sentence in the Court of Criminal Appeal, however his appeal was dismissed.

In 2022, the appellant made an application to the Supreme Court pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. Dhanji J refused the application for an inquiry into the appellant’s convictions and/or sentences, however referred the case to the Court of Criminal Appeal to be dealt with as an appeal.

The appeal was heard over a number of days in May 2023. The Court heard additional psychiatric evidence on the basis that the Court would find that such evidence was fresh evidence, or new evidence, which was permissible for it to consider and deal with on the appeal.

The appellant sought to appeal against his conviction on two grounds as follows:

Ground 1: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence at the appellant’s trial (“the conviction ground”).

Ground 2: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence in the appellant’s sentencing proceedings (“the sentencing ground”).

The Court (per Garling, Fagan and McNaughton JJ) held, dismissing the appeal:

As to Ground 1 (the Conviction Ground):

Regarding the Partial Defence of Substantial Impairment:

The research that was conducted after the trial constitutes fresh evidence but does not support the partial defence of substantial impairment. A finding of a miscarriage of justice cannot be supported by reason that this research was not available for tender in 2005. The changed opinions of a psychiatrist are new evidence rather than fresh. Taken together, this evidence is not sufficiently cogent to persuade the Court that the appellant has been wrongly convicted or denied a fair chance of acquittal [285].

Regarding the Mental Illness Defence:

The post-trial evidence is not capable of proving that the appellant’s mental disorder had the still more deleterious effect that would have to be proved on the balance of probabilities to sustain the mental health defence [286].
The Court did not find any basis for the defence of mental illness to be established, nor that the additional evidence is new, nor that there has been a miscarriage of justice [287].

As to Ground 2 (the Sentencing Ground):

The case and the sentences imposed fell into a very small cohort of sentences where such was the heinousness of the conduct and the inherent criminality that the evidence with respect to the subjective factors of the appellant was simply irrelevant and properly to be disregarded, or given very little weight [319].
Notwithstanding the existence of fresh evidence which is credible or plausible, there is no possibility that the sentencing Judge, acting reasonably, would have imposed a different and lesser sentence for each of the offences [321].

JUDGMENT

THE COURT: On 14 April 2005, after a trial before a jury at which Barr J presided, the appellant, Crespin Adanguidi, was found guilty of three counts of murder, which occurred in the early hours of 1 February 2003.
The victims of the murders were a mother, Shiquin Zhu (“Mrs Shen”), and her children Pin Shen, a 27 year old male, and Christy Bo Shen, a 23 year old female. The three victims were respectively the wife and two children of Mr Raymond Shen, who was known to the appellant.

The Appeal

This appeal comes before the Court as a result of a decision of Dhanji J on 14 April 2022.
The decision of Dhanji J (in Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act2001 (NSW) [2022] NSWSC 442) dealt with an application by the appellant pursuant to s 78 of the Crimes (Appeal and Review) Act 2001.
Having received the application pursuant to that section, and having considered the submissions of the appellant and the Attorney-General of NSW, his Honour made the following relevant orders:

“1. The application for an inquiry into the applicant’s convictions and/or sentences is refused.
2. I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), that the whole of the applicant’s case is referred to the Court of Criminal Appeal to be dealt with as an appeal.
3. ...”

The hearing of the appeal took place over a number of days in May 2023. The Court heard evidence from Dr Olav Nielssen, Dr Matthew Large and Professor David Greenberg on the basis that the Court would find that such evidence was fresh evidence, or new evidence, which was permissible for it to consider and deal with on the appeal.
The Court deferred ruling on the question of whether the evidence was either fresh or new until after it had heard all of the evidence and taken submissions from the parties.
Before coming to consider the evidence led before it, it is appropriate that the Court identify the principles by which appeals are conducted when it is said that fresh or new evidence ought to be admitted.

Fresh or New Evidence on Appeal – Legal Principles

Recently, this Court considered a question similar to that posed in this appeal. In EC (a pseudonym) v R [2023] NSWCCA 66, Mitchelmore JA (with whom Button and Wright JJ agreed) said:

“8. In Ramsey v R [2022] NSWCCA 197 at [32], this Court (Beech-Jones CJ at CL, Wilson and Fagan JJ) observed that the question of miscarriage of justice in a case relying on evidence that is additional to that which was before the jury is to be resolved by considering the sequence of alternatives outlined by Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, subsequently endorsed in Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 and Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. In Ratten, Barwick CJ detailed that sequence at 518‑520 and summarised it as follows at 520:
‘To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.’

9. In Gallagher v The Queen, Mason and Deane JJ suggested that the Court of Criminal Appeal would conclude that the unavailability of fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial (at 402). Gibbs CJ (at 399) and Dawson J (at 421) substantially agreed with this formulation, although Gibbs CJ further observed that no form of words ‘can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred’ (at 399). ”

The principles have also been helpfully summarised by Kirby J (with whom Mason P and Levine J agreed) in R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417. Kirby J derived the principles from Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518‑520, per Barwick CJ; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659; at 674‑675 per Mason J; and R v Bikic [2002] NSWCCA 227 at [241]-[283].
In Abou-Chabake at [63], Kirby J said:

“First, a distinction is made between ‘new evidence’ and ‘fresh evidence’. Fresh evidence is not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial …
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial …
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court’s satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new …
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
Is the evidence fresh?
If it is, is it ‘credible’ or at least capable of belief … or ‘plausible’?
If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused … or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused …
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth … It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better …”

It is clear that any analysis and construction of the further evidence must be in the context of the evidence at the trial.
Evidence is not “fresh” but is merely “new” if it was available to be adduced at trial, either actually or constructively, but was not adduced.
In the present case, the appellant seeks an order that his conviction be quashed, thus engaging an inquiry as to whether any of the additional evidence, whether new or fresh, is of such cogency as to demonstrate a reasonable doubt about his guilt. Kirby J summarised this situation in the fifth of the principles that he extracted from the authorities, as set out above.
In the present appeal the question would be whether the additional evidence is of such cogency as to satisfy this Court that the appellant is entitled to more favourable verdicts, either special verdicts or verdicts of guilty of manslaughter only, on each count. If the additional evidence is not of such cogency as to satisfy this Court that it should now substitute one or other of those more favourable verdicts in respect of each charge, then:

if the evidence is (i) fresh and “credible” or at least capable of belief or “plausible” and (ii) there is a significant possibility that the jury acting reasonably would have delivered one of the more favourable verdicts had it received the evidence, a new trial should be ordered; or

if the evidence is merely new, the appeal on the conviction ground would be dismissed (R v Abou-Chabake at [63], sixth principle; Xie v R [2021] NSWCCA 1 at [433]-[444]).

Before embarking upon an examination of the evidence at the trial and on the appeal, it is appropriate to draw attention to the grounds of appeal in this Court.

Grounds of Appeal

They are:

Ground 1: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence at the appellant’s trial (“the conviction ground”).
Ground 2: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence in the appellant’s sentencing proceedings (“the sentencing ground”).

It is appropriate to note here that the Crown, the respondent to this appeal, contested the appeal on the basis that the appellant had not established that any miscarriage of justice had occurred at trial, or on sentence as a consequence of the absence of any relevant psychiatric evidence, and in particular in the absence of the psychiatric evidence adduced on the appeal.

The Appellant’s Trial and First Appeal

It is convenient to the consider the course of the trial.
The trial took place over 17 days between 29 March 2005 and 14 April 2005. It was on the last of those days that the jury returned with its verdict of guilty.
The appellant did not dispute at the trial that he had killed the three deceased. He did not dispute that he had shot each of the two children and had killed Mrs Shen by a brutal assault.
He pleaded not guilty to the murders and based his defence on mental illness. He argued before the jury that, as a consequence of that mental illness, he ought to be acquitted entirely of the offences (“the mental illness defence”). In the alternative, he submitted to the jury that the partial defence of substantial impairment was made out so that he was only guilty of manslaughter (“the partial defence”).
Plainly, in returning their verdicts of guilty, the jury rejected both of those defences.
On 3 June 2005, for the reasons which he articulated, Barr J sentenced the appellant to life imprisonment with respect to each count: R v Crespin Adanguidi [2005] NSWSC 519 (“SJ”). Barr J did not fix any non-parole period.
The appellant did not bring an appeal against his convictions. He did, however, seek leave to appeal to the Court of Criminal Appeal against the sentences imposed on him.
On 15 December 2006, the Court of Criminal Appeal (Spigelman CJ, Sully and Hislop JJ) granted him leave to appeal against the sentences but dismissed his appeal: Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 (“the CCA judgment”).
Having regard to the law that existed at the time of his trial, the mental illness defence required the appellant to establish on the balance of probabilities that when he did the acts causing death, he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong: see s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). This test reflects the judgment of the High Court of Australia in The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 188; see also Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192.
The partial defence placed the onus on the appellant to establish, on the balance of probabilities, that at the time of the acts causing death, his capacity to understand the events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition. If he succeeded in establishing that state of affairs, he then needed to persuade the jury that the impairment was “so substantial as to warrant liability for murder being reduced to manslaughter”: see s 23A Crimes Act 1900.

At the trial, the appellant called Dr Bruce Westmore, a forensic psychiatrist, and relied upon his opinion which, in summary, supported the conclusion that the appellant had a mental illness defence. That was because Dr Westmore said that whilst the appellant knew the nature and quality of his acts, he did not know that they were wrong. Dr Westmore was unavailable and so did not give any evidence on the appeal.
The Crown called Dr Nielssen, a psychiatrist, in its case in reply at the trial. By way of brief summary, Dr Nielssen expressed the view that it was possible that the appellant was suffering a psychotic illness which might have had some effect upon the appellant’s ability to judge right from wrong, but Dr Nielssen was persuaded that any abnormality did not affect the appellant’s reasoning ability in the sense that it did not affect his capacity to form and undertake purposeful action and, accordingly, the effect was not very great.
It is convenient here to set out the remarks of Barr J on the question of the appellant’s mental state. At [72] of the SJ his Honour said:

“72. At the time of the murders, however, although the [appellant] was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the [appellant’s] state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and moral wrongness of what he was doing. I do not think that the [appellant’s] capacity to understand events or judge whether his actions were right or wrong in a moral sense or to control himself were impaired at all. I do not think that his capacity to reason about what he was doing was impaired. His illness, his belief that he was being watched and the other effects that it was having upon him, were incidental. No doubt they affected his life and relationships, but they did not mitigate his criminality any more than any physical illness would have done.”

In the Court of Criminal Appeal, when dealing with the application for leave to appeal against sentence, it was contended that it was not open to Barr J to find, as he did, that the appellant’s culpability was not affected by his illness. That contention was rejected by the Court.
On the hearing of the appeal, further evidence by way of a report of Dr Nielssen dated 29 October 2006 and a report of Dr Pascal Agonkan a specialist psychiatrist from Benin, dated 2 June 2006, was put before the Court of Criminal Appeal.
The Court of Criminal Appeal was provided with the appellant’s prison file for the period after sentence and up to 12 September 2006.
The attempt to place that additional material before the Court was rejected unless the Court came to re-sentence. The Court was not persuaded that Dr Nielssen’s report of 29 October 2006 added significantly to his evidence at the trial and, as well, that it had any impact upon the question of the appellant’s capacity at the time of the murders. The Court was also unpersuaded that the material contained in the report of Dr Agonkan impacted upon Barr J’s conclusion as to the appellant’s condition at the time of the murders, nor, the Court held, did it affect any opinion of Dr Nielssen.

The Objective Facts Established at Trial

It is convenient at this stage to identify the facts at trial for which there was objective evidence with respect to the appellant’s offending. The Court will separately consider the various accounts of the appellant and the evidence before the jury with respect to his mental status. However, it is important to set out the factual background – which was largely unchallenged. Those facts are most easily identified and taken from the SJ between [4] and [22].

“4   In January 2003 Mr Shen travelled to China on business. He returned on 29 January. On the next day the offender telephoned him and said that he was eager to see him. He invited him to come to his unit at Maroubra at any time after 7:00pm in the evening.
5    I am satisfied that the offender issued his invitation with the intention of attacking, disabling and robbing Mr Shen and his family. In anticipation of a visit by Mr Shen, he provided himself with a loaded pistol, strong adhesive tape, strong cord, various tools, a torch, cloths and a device to enable him to see in the dark. He had a pair of rubber gloves and a bag in which to carry these things and the money he expected to steal.
6    As invited, Mr Shen arranged to visit the offender on the evening of 31 January. He telephoned him on the way and they arranged to meet near the University of New South Wales because Mr Shen had never been to the offender’s home and did not know the area well. They met as arranged and drove to the offender’s unit block. The offender parked both their cars under the building and they went to the unit.
7    Once inside, they spent some time talking and looking at photographs of the offender’s family. They moved into the bedroom and undressed and there was some intimate touching. As Mr Shen was putting on his clothes the offender took out the pistol and struck him hard on the back of the head. Mr Shen fell to the floor. The offender told him to remain silent and to lie on the floor. He placed one cloth in Mr Shen’s mouth and another around his mouth and head. He took the adhesive tape and bound his head, hands and feet. He continued to threaten him with the pistol, telling him to remain quiet.
8    The offender moved Mr Shen into a second bedroom and began to demand money from him. He said that a “Slovenian gang” was after him, that he needed money to pay a “Mascot cop” and that he needed to leave Australia because he had killed a pharmacist at Hurstville. None of these things was true. He accused Mr Shen of sending photographs of them to his, the offender’s, wife.
9    He held Mr Shen there for hours, demanding that he make over money and other valuable things. Mr Shen told him where he could find such money as was available, including some that he carried with him and some that he kept in his car. The offender went to the car and took the money. Mr Shen was obliged to explain to the offender that he was unable there and then to sign over to him assets, property or the proceeds of bank accounts that the offender was asking for. The offender began to make threats against Mr Shen’s family and Mr Shen pleaded with him not to harm his wife or children. The offender produced a knife and cut off some of Mr Shen’s hair. He said that he was going to show it to his wife.
10    The offender left the room from time to time and made and received calls on his mobile telephone. He had a contract with the operator of the Ritz Cinema, Randwick to clean the premises and employees of his were there while he was holding Mr Shen captive. Some of his telephone conversations were with those employees.
11    After one such conversation the offender returned to the room where Mr Shen was and told him that the Slovenian gang were chasing him and that he had only ten minutes left. He counted down the ten minutes and as he did so he held the pistol to Mr Shen’s head. He left the unit, having stolen Mr Shen’s car and unit keys. As he did so he set the alarm.
12    Having left Mr Shen bound and gagged, he went to the Ritz Cinema, driving Mr Shen’s car, and spoke to his employees. After that he went to Rockdale. He knew the security arrangements at the building in which the Shen unit was situated and used Mr Shen’s keys to get in. It was then 2:54am. He travelled to the floor on which the unit was situated but before entering it he turned off the electric power to the unit and two adjoining units. He entered the unit taking with him the bag containing his various belongings. He put on rubber gloves and carried a torch.
13    The offender was in the Shen unit for about an hour and during that time he carried out a number of different acts. The evidence does not permit any confident conclusion about the order in which they took place. He stole money and valuable property, including jewellery, computer equipment and mobile telephones. Because he was wearing the gloves, he left no fingerprints. It seems unlikely that all this property would have been on open display, particularly the substantial amounts of cash that he took, and probable that he found it after searching or after having been told by Mrs Shen where it was.
14    As the offender was going about his work a number of things happened. Pin Shen, who kept a tennis racket in his room, took it and approached the offender. Whether the offender was then stealing or attacking Mrs or Ms Shen or was merely an unwelcome entrant it is not possible to say. The offender, facing him, shot him through the head at close range. Pin Shen died straight away.
15    Ms Shen also was alarmed. The clothes she was wearing when she was found make it appear likely that she was in bed at the time. If she was, she got out of bed and, still in her bedroom, took her mobile phone and called triple 0. She managed to make the connection, but it was almost immediately broken. I think that the offender must have done that. He shot her through the back of the head from close range. She died, slumped over her bed.
16    The offender killed Pin Shen to prevent him from getting in the way of what he was doing. He shot Ms Shen for the same reason and in particular to prevent her from calling for help. His intent in shooting them was to kill.
17    The offender attacked Mrs Shen with the pistol, but he did not shoot her. He tortured her by pressing the tip of the barrel into her breasts and perhaps rotating it. He did so to hurt her, perhaps with the intent of making her tell him where valuable things might be found. Mrs Shen was unlikely to have told him voluntarily. He used some instrument, presumably the pistol, to cause a superficial injury to her sexual parts. There was damage to the fingers, with breaking of the finger bones, tearing of the soft tissues and dislocation of the joints. He killed her by striking her repeatedly in the face and head with a hard object. I think that that was probably the pistol. There was extensive fracturing of the bones of the face, some of them extending into the base of the skull. There was bleeding within the skull. There was brain damage. The lacerations so produced bled extensively and some blood was inhaled and some swallowed. There was bruising about the neck and fractures of the ribs. Those fractures may have been caused postmortem.
18    Shiquin Zhu [Mrs Shen] died of these injuries and from inhaling blood. Her death was painful. She probably knew before she died that her children had been murdered.
19    The offender left the unit shortly after 4am, taking with him the money and other valuable things he had stolen, together with the pistol, the gloves, the infrared device and other things in a sports bag. He also had a backpack and a computer in a bag. He drove to the unit of a woman with whom he had a casual sexual relationship, got her out of bed and told her a false story about his wife’s having just left him. He left with her the bag containing the things I have mentioned, the backpack and the bag containing the computer. He made sure that she stowed them out of sight. He returned to his car and drove towards his own unit intending, no doubt, to deal in some way with Mr Shen.
20    In the meantime, after a long, difficult and painful struggle, Mr Shen had managed to free himself from his bonds. He got himself out of the offender’s unit. He could not use his car, of course. He knocked on doors and called for help but at that hour of the morning there was no help. Eventually he managed to find a public telephone and made a call to the emergency services. Police officers came and helped him. He told them what had happened and gave them his family’s telephone numbers. Ambulance officers took him to hospital, where he was treated.
21    Police officers telephoned the Shen unit. Only one of the several calls that they made was answered and on that occasion nobody spoke but the police could hear noises. They went to the unit and found the bodies of the deceased.
22    When the offender arrived at his unit block, waiting police officers arrested and disarmed him. He was taken into custody.”

Some features of this factual account can be readily identified. They are:

prior to meeting with Mr Shen, the appellant armed himself with a loaded pistol, and equipped himself with strong adhesive tape, strong cord, various tools, a torch and a night vision device, each of which were the means by which the murders were committed;

the attack on Mr Shen occurred in circumstances giving rise to the conclusion that the appellant lured Mr Shen into his apartment, took some time, in a way familiar to each of them, to put Mr Shen at ease, and then deliberately attacked him and held him for some hours;

the appellant, having tied Mr Shen up, left the room and transacted business over his mobile telephone with employees of his who were, at his direction, cleaning the Ritz Cinema at Randwick;

the appellant left his unit, leaving Mr Shen inside, stole Mr Shen’s car, and his apartment keys, and then set the alarm on his unit, drove to the Ritz Cinemas and spoke to his employees – who were there carrying out cleaning duties;

the appellant then drove from Randwick to Rockdale, where he entered the apartment building using Mr Shen’s keys, he then travelled to the floor on which Mr Shen’s unit was situated, and accessed the electric power boards to turn off the electric power to that unit and the adjoining units;

before entering the unit while carrying various implements including a loaded pistol, he put on rubber gloves;

at the unit he commenced to steal jewellery, computers and mobile telephones – all of which were valuable;

as he was doing so, he was interrupted by Pin Shen. He shot Pin Shen through the head at close range. Then, as Christy Bo Shen attempted to ring 000, the appellant prevented her from doing so and shot her at close range in the back of the head. Each of those killings was carried out to prevent his being disturbed in the task he was taking on, and, although at close range, required a careful aiming of the pistol and a deliberate decision to fire it;

the appellant then, by various forms of physical assault, beat Mrs Shen to death. This took place over a lengthy period. It involved the appellant striking her repeatedly and with great strength;

the appellant then left the unit and drove to another apartment, where he asked the occupant with whom he was occasionally intimate, to take his backpack and belongings and hide them for him. He then returned to the car and drove to his own unit. He was arrested when he arrived there.

Each act was done for a particular and obvious purpose. The acts had features of deliberateness and intention. The sequence of the acts strongly suggested a plan conceived before first meeting Mr Shen that evening, and the confirmation of the plan by its execution throughout the time until the appellant returned to his apartment. Not one of these acts was accompanied by incoherence, irrationality or any lack of purpose.
It was the totality of this conduct against which, in light of the evidence at the trial, the jury were asked to consider the defence of mental illness and the partial defence, to which we now turn.

The Absence of Evidence from the Appellant

It needs to be said at the outset that the appellant did not give sworn evidence at his trial. The appellant was not obliged to do so. No adverse inference can be drawn against him for not doing so. No such inference is drawn.
On the hearing of this appeal, the appellant did not give evidence either. Again, he was not obliged to do so, and there may well have been legal reasons why he was not able to. The point is only mentioned so that it can be clearly identified as not giving rise to any adverse inference to be drawn by this Court against him.
He did, however, give various accounts in various circumstances to various people - particularly to those health professionals with whom he came into contact after his arrest, and to psychiatrists retained to assess him for the purpose of the issues which were to be raised at his trial, and on this appeal.
These various accounts were not sworn to. The discrepancies in and between the accounts are not the subject of any challenge by cross-examination. This Court needs to exercise caution before, uncritically, accepting these various accounts, or parts of them.

The Appellant’s Psychiatric History and Mental State Leading up to the Offending

It is now appropriate to summarise the factual evidence about the appellant, including reference to any mental illness issues, which was led at the trial.

Childhood in Benin

The appellant was born in 1977 in the Republic of Benin in West Africa. Mr Jean Adanguidi was the older brother of the appellant and through the assistance of a French interpreter, he gave evidence in the trial about their childhood.
Mr Jean Adanguidi stated that their “early existence was very difficult” as there would often be issues due to jealousy from their father’s three wives and pressure from needing to feed and clothe everyone. He said that there were 23 children altogether and that the appellant started working in a maize mill at seven or eight years old in order to help their family survive.
Mr Jean Adanguidi said that when the appellant was around 13 years old, he noticed that he started suffering from “mental troubles”. He described them as follows:

“Q.    What were those mental troubles?
A.    We noticed that he was suffering from nightmares and he could become very agitated at times.
Q.    Did anything happen to his speech?
A.    Yes it was, it was affected.
Q.    How was it affected?
A.    He was talking without much direction. He could say one thing once and the opposite the next. His speech was not making much sense.
Q.    Did he develop any strange behaviours?
A.    Yes, he developed a lot of strange behaviours, which were not normally the way he was. He developed some kind of nervous condition.
Q.    What do you mean by nervous condition?
A.    His normal behaviour when he was talked to was to respond normally but later on he became very unco-operative and agitated.
[…]
Q.    Did he do anything with his food?
A.    Yes, he used to throw his food on the floor and ate from the floor.”

Mr Jean Adanguidi said that their family tried to help the appellant but they “realised it was the beginning of a kind of madness”. As such, in addition to family support, they sought help through the only psychiatric hospital in Benin (in Jacquot) and also exposed the appellant to traditional medicine in Ketou. Mr Jean Adanguidi said that the appellant stayed at the psychiatric hospital for a few days and was in the traditional medicine hospital from May to August 1991. The appellant would have been about 14 years old at that time. He said that when he visited the appellant at the traditional medicine hospital, he “did notice an improvement from the time his stay in the Hospital [sic] comparing with the time before”. In re‑examination, Mr Jean Adanguidi confirmed that mental health problems in Benin were often treated through a combination of traditional medicine with modern medicine in order to produce a “good result”.

The Appellant’s Life in Australia prior to June 2022

The appellant came to Australia in 1996 when he was around 19 years old. Mr Gary Keats was a friend of the appellant, having met him towards the end of 1996 when Mr Keats sponsored the appellant to live with his family for about six months. Mr Keats said that the appellant was very much a “fun loving sort of guy” who used to “joke around a lot”. He said that he never saw the appellant act in a violent way.
Ms Karen Keats was the wife of Mr Keats and she agreed that she believed she got to know the appellant very well from the time he lived at their house. She also said that the appellant was a fun-loving person who was easy to get on with and was laid back. She said that he was easy to talk to and was a lively person who was especially animated. She said that the appellant did not tell her about his admission into a psychiatric hospital in Benin.
Ms Alicia Richards was the separated wife of the appellant, and she gave evidence in the trial about her experience with him from when they started dating in January 1999. In cross-examination, she said that prior to June 2002, she had only seen the appellant “aggressive once” and had never seen him “being violent”. She said that in the four years she knew him, he was a very caring father to their two children, and that he was “fun-loving”, “good company”, “easy to get on with” and a person who “joked around”. She said that the appellant did not tell her about any of the health problems he had as a child.
Mr Raymond Shen was a friend of the appellant and the father and husband of the three deceased victims. Mr Shen first met the appellant in about the year 2000 when the appellant was working as one of the security staff in Mr Shen’s residential building. He said the appellant appeared to be “a very nice person”, and a friendship developed between them where they would talk about business plans, travelling, and their love for their family members. Mr Shen said that prior to January 2003, he had never seen the appellant angry, threatening or behaving aggressively. Mr Shen also confirmed that their friendship involved sexual intimacy, which began when they first met and continued up until the time of the offending.

The Appellant’s Fear of Voodoo

Ms Richards said that the appellant was fearful of voodoo and that it was a “continuous thought” that they discussed on “quite a few occasions”. She said that the appellant knew people who did voodoo and told her about “how they do curses and it comes true and other children have had harm done to them and other people have had harm done to them”. She said that the appellant:

“[…] didn’t want any of his aunties or uncles to know that he had children because he thought that they might perhaps do voodoo on the children and cause harm to them. In Africa, if they believe that you have some wealth, and living in Australia, they would believe he had some wealth. If he didn’t share it with all his family, they might try to cast voodoo spells and he was afraid of that.”

Ms Keats gave evidence of an occasion when she had a “very long conversation” with the appellant (with Mr Keats present) in which the appellant was “very distressed” and “brought up this story about his village where, to [her] understanding, the practice was to sacrifice a child for the sake of the health of the village”. Mr Keats gave similar evidence about this conversation where the appellant was “very upset” when describing his “experiences in eye witnessing events in voodoo activities”. Both Mr and Ms Keats gave evidence describing the story as one where a crowd of people from a village chased a boy up a tree and chanted until the boy killed himself by jumping from the tree. Ms Keats gave evidence that they understood the appellant to have been about six, seven or eight years old in this story.
Mr Jean Adanguidi confirmed that the vast majority of their population practiced voodoo, including the appellant, but gave evidence that the practice “didn’t include human sacrifices, chickens, sheep and the like”. Mr Jean Adanguidi gave evidence that the appellant did not tell him the story about seeing the young boy falling from the tree to his death but said that the appellant was not the type of person to “exaggerate or tell tall stories”.
Ms Richards said that the appellant did not tell her the story about the little boy from his childhood until after he went into custody.

After the Benin Trip in June 2002

Ms Richards gave evidence that in around June 2002, the appellant travelled to Benin by himself for approximately 10 days to go and visit his family. Mr Jean Adanguidi confirmed that he saw the appellant in Benin during this trip and that he appeared “quite well”.
The evidence established that the appellant’s demeanour began to change after the Benin trip. Ms Richards said that the appellant returned from the trip early, and that he was “all right for a couple of weeks and then he started to really withdraw and didn’t communicate with [her] much at all”. She said:

“[…] he wasn’t joking like he usually does. He got nightmares, he was hardly ever sleeping. He would stay up all night most nights and he appeared very tired and out of energy.”

Ms Richards said that it became common for the appellant to get up in the night and watch TV, go on his computer, or look out the window on the balcony. When asked if the appellant told her what his nightmares were about, she said: “No, he didn’t discuss any emotions with me”. Ms Richards could not recall if they had any conversations about voodoo after he returned from the Benin trip.
Mr Jean Adanguidi said that prior to the Benin trip, he would have regular contact with the appellant and the appellant would be the one to phone him most of the time. However, after the appellant returned to Australia, Mr Jean Adanguidi said that the appellant stopped calling. When Mr Jean Adanguidi eventually phoned him, he gave the following evidence of their conversation:

“Q.    And did he tell you why he hadn’t telephoned you?
A.    He told me he was sick.
Q.    Did he tell you in what way he was sick?
A.    Yes.
Q.    What did he tell you?
A.    He told me he had some headaches, that is his heart was beating fast, he had nightmares, he couldn’t sleep at night. He had a lot of nightmares, he couldn’t sleep as a result. He had insomnia.
Q.    Had you known him to have those symptoms before?
A.    These nightmares and troubled mental state reflected the situation he was in in 1991.”

Memory Loss in 2002

Ms Richards gave evidence that particularly towards the end of 2002, the appellant’s memory appeared to be deteriorating. She said the memory loss was something she identified and brought to the appellant’s attention before the offending. When asked how the memory loss presented itself, she described it as follows:

“A.    He would constantly be forgetting things. He would book appointment on top of appointment for the same time. I think sometimes he would key in that time into his mind, his memory, like say 11 o’clock on Saturday, so he would make three appointments for 11 o’clock on Saturday and I would have to remind him that he already had an appointment.
Q.    What other, can you think of any other examples?
A.    Every time he walked out of the door I asked him if he had his keys, if he had his wallet, if he had his phone. He would always be leaving that behind.
Q.    Was this something that manifested itself throughout the time that you lived together?
A.    Yes, it got a lot worse near the end, to the point that I thought that he might have problems, might have a medical problem.”

Ms Richards gave evidence that the appellant saw a doctor about his memory loss and that he was prescribed medication as treatment. She confirmed that the appellant would have been taking the memory loss medication at the time of the offences. Ms Richards also confirmed in cross-examination that there was a time when a whiteboard was purchased to allow the appellant to write notes to himself on it.

Break and Enter in December 2002

In around December 2002, the appellant and Ms Richards were the subject of a break and enter in which various items were stolen. She said that around two weeks later, she saw a firearm on a bookshelf in the dining room and she asked the appellant why it was there. She said he responded as follows:

“A. […] he said it was to protect us. He said it wasn’t loaded and then he had no bullets and he said he also got it from Raymond and I asked him to get rid of it and the next day it was gone.”

Ms Richards gave evidence in cross-examination that the appellant also purchased an alarm system after the break and enter and she agreed that he was “overly concerned to ensure that it was on at all relevant times”. She said he was “definitely checking it to make sure that it was working properly. He wouldn’t give anyone else the code for it.” In re-examination, Ms Richards said the code was to activate or deactivate the alarm and she did not touch the alarm system as she was always with him.

Incident on 10 January 2003

On 10 January 2003, Ms Richards separated from the appellant after an incident occurred where he slapped their first child in the face. She left with their two children that day and described the incident as follows:

“A. Um, he had been washing [first child] and [first child] was screaming in the bathtub and I was very tired. I had come home early from work but I was very tired from work and I was trying to sleep and [first child], and they were making a bit of a fuss in the bathroom and then I heard [first child] scream quite loud and I went in and I had seen that he had a hand print on his face like he had been slapped so […] I rang the police but they didn’t come so I rang my parents and they came and picked me up and went back to their place.”

In cross-examination, she agreed that this incident with their first child was “extremely unusual” especially since the appellant spent a lot of time with their children and bathed them often.

Between 11 January 2003 and 1 February 2003

Ms Richards said that in the period between when she separated from the appellant and the time of the offending, she had contact with him over the phone every couple of days. She gave the following evidence of their interactions during that period:

“Q.    In the period between the 11 January and the 31 January, on those occasions that you spoke to him on the telephone, how did he appear?
A.    Very depressed, very upset, he was very quiet when he spoke.
Q.    And did he tell you what he was depressed about?
A.    No, I knew that he was upset that I had left him and that I had taken the kids. That’s what I believed it to be all about.
Q.    And did you consider that his emotional response was appropriate for the situation that he was in with you?
A.    Yes.
Q.    And were you upset at that time as well?
A.    Yes, I was, maybe not as upset as he was.
Q.    The phone conversations that you did have with him, were they related to domestic issues between you and him and the possibility of a reconciliation?
A.    Yes, a lot of it was him pleading for me to come back and I was saying I need more time, but we will be together again.”

Ms Richards gave evidence that she could not recall if the appellant complained of any strange phenomena such as hearing voices because he would have said “something like that in a form of a joke” and she “probably wouldn’t have remembered it because [she] would have thought he was joking”. When asked whether she recalled telling the appellant to see a doctor about hearing voices, she said that she did not. When asked if there were other occasions in which she told the appellant to see a doctor, she said:

“A. I have tried to get him to go to a counsellor with me based on, I would say that it would be based on family and our relationship, but I also thought that he needed extra help himself.”

Ms Richards gave evidence that the appellant also complained that “his head was hurting a lot” in the lead up to the offending. She said that “he was getting lots of headaches” and that “his eyes were hurting”. When asked if he saw a doctor about this issue, Ms Richards said she thought he did and that it would have been around the same time the appellant was discussing his memory loss with the doctors.
Mr Jean Adanguidi said that the last time he spoke to the appellant on the telephone was in January 2003 and he recalled a conversation where the appellant told him about the state of his health. Mr Jean Adanguidi said the appellant “mentioned the nightmares, the headaches and all his problems” and that “his illness had worsened, that he had nightmares and he couldn’t go to sleep”. When Mr Jean Adanguidi was asked if the appellant told him what the nightmares were about, he said: “Since the phone conversation were expensive we didn’t dwell on the extent of the nightmares but he told me that he had bizarre dreams”.
Ms Yvonne Tudela was in an intimate relationship with the appellant in the period leading up to 1 February 2003. She gave evidence that the appellant came to see her at her home on 19 January 2003 and that she did not recall him telling her anything on that occasion about any problems he was having. She said the next time she saw the appellant was the early morning of 1 February 2003 shortly after the appellant committed the offences.
Mr Shen said that he travelled to China in January 2003 for “about 20 or 16 or 18 days”. On 24 January 2003, while Mr Shen was away, the appellant sent him the following email tendered by the Crown at trial:

“Hey Raymond
I hope everything is going allright with you as I haven’t heard from you for couple days. Could you please let me know if everything is ok. My wife moves out to her parent so I here alone and wish you were here. I can’t wait to see you back the whole unit is empty as I don’t have the kid to look after I’m as free as a bird in the sky. So come back quick and by the way bring some goodies from china for me. come back soon
Missing you
Cres” (sic)

Mr Shen said that that email was the first time the appellant told him about “divorce things” and his wife taking the children.
On 27 January 2003, Mr Shen sent the following email in reply to the appellant:

“Dear Cres,
I just left Hong Kong this afternoon and come to Ha Noi at the moment. I will come back to Sydney in the morning of 29th. I assume I will be free during the day of 30th or in the evening of 29th. I will send you very nice gifts and I will definitely do a lot of business with Benin and export products to your country. I will ring you when I comeback.
Looking forward to meeting you very soon.
Raymond” (sic)

Mr Shen said that he arrived back in Sydney on 29 January 2003, and that the following day (30 January), the appellant rang him on the telephone and said he wanted to see him. Mr Shen told the appellant that he had dinner plans that night but that he would go and see him if it was still early afterwards. At around 9 to 9:30pm on 30 January, Mr Shen said that he tried to ring the appellant but there was no answer. He said he left a few messages asking the appellant to ring him before eventually going to travel home. Mr Shen said that after he got off the train and as he was walking home, he received a phone call from the appellant asking him “to go”. Mr Shen said he replied that “the time was too late” and they made arrangements to meet the following evening on 31 January 2003.
Detective Sergeant Joseph Maree stated that the appellant attended the North Sydney Police Station shortly after 8:30pm on 30 January to collect a copy of “some papers about the complaint in relation to his son”. Detective Maree confirmed that the appellant remained at the police station until 9:25pm. He did not give any evidence that suggested that the appellant’s behaviour was other than normal during this visit to the police station.

The Events of 31 January 2003

On 31 January 2003, Ms Keats spoke to the appellant over the telephone and asked if he wanted to have an evening meal together to talk about his separation from Ms Richards. She said that the appellant said “he could not come for tea that night because he had other plans, but he would come the following Tuesday night [4 February 2003] and talk to us then”. The appellant told Ms Keats that he had a misunderstanding with Ms Richards and that “he was hoping to talk to her over the weekend and that he felt that he would be able to work the problems out”. When asked how the appellant sounded, Ms Keats said he was “depressed and upset, but he seemed confident that he was going to be able to get through this problem”. Ms Keats confirmed that they made arrangements to meet the following Tuesday.
Mr Shen gave evidence that when he met the appellant on the evening of 31 January 2003, the appellant was “in very normal attitude” and “very friendly”. He said that he had not noticed any change nor anything unusual in the appellant between 29 and 31 January 2003, with the exception of the following:

“[…] after I came back he rang me actively. Usually he would not ring me so obvious but according to my understanding he went to talk to me about his sadness so I tried to comfort him so but when I was in Hong Kong I get such kind of email. I get a lot, bit strange too because usually he appeared to me very strong, very bright person, but told me in the email he was very upset of his wife leaving but he rang me, wanted to see me. I felt a little strange but I didn’t care about that. I think I didn’t notice any evil intention from him.”

In relation to whether they spoke about the appellant’s separation from his wife that evening, Mr Shen gave the following evidence:

“Q.    Now did he tell you anything about the circumstances of him separating from his wife?
A.    Yes he said, I asked her, him, how, because he already told he separates marriage on the court case. He said, ‘I don't care, everything will be handled by the solicitor’.
Q.    Did he tell you when the court case was to be held?
A.    He told me that February 18 or 28, I forget. He told [me] that date. He said court case hearing be very soon.
Q.    Did he [tell] you why he had separated from his wife?
A.    He didn't.
Q.    Did he tell you where his wife was living?
A.    He told me his wife was living with her parents.
Q.    Was that something he told you on this night?
A.    Yes.
Q.    And was there any conversation at all about the nature of the court case, what it was about?
A.    He didn't. He looked very relaxed. He said, ‘Everything will be handled by my solicitor’.”

Mr Shen and the appellant then spent about 20 to 30 minutes talking about the appellant’s family before going into the bedroom to engage in sexual touching. The touching lasted around 10 to 15 minutes, and as Mr Shen got dressed afterwards, the appellant knocked him to the floor and the offending began.
During the period when Mr Shen was held captive, he described the appellant’s demeanour as “very calm”, and “very normal”. He said the appellant’s behaviour completely changed after he hit him but that “his talking attitude still pretended to be very kind, very nice, only he needed the money, but that was to my surprise. He was so greedy”. Mr Shen said the appellant received “at least four or five phone calls” while he was held hostage and that when the appellant spoke on the phone, he would “talk very normally, even with smiling”. Mr Shen denied that the appellant appeared aggressive or angry but agreed that he was terrifying.
Mr Shen gave evidence that the appellant wanted the money to leave Australia, and that the appellant told him he “just killed a pharmacist in Hurstville the day before, and the man didn’t give him the money, so he killed him and threw him to the bush”. The appellant told Mr Shen that if he didn’t give him the money, he would “do the same” to him. The police investigation established that there was no pharmacist in Hurstville that was killed on 30 January 2003.

Mr Shen said the appellant wanted $200,000 to pay for a “Slovenian gang” and “Mascot cop” to assist him in leaving Australia through fake documents. He said the appellant also accused him of sending photos of them having sex to the appellant’s wife. Lastly, Mr Shen gave evidence that the appellant repeatedly told him that he “felt sorry about doing this” and that he did not want to do this to him but there was a “Slovenian gang” forcing him to. When the conversation shifted to Mr Shen’s children, Mr Shen pleaded with the appellant not to harm his family but the appellant again replied that the “Slovenian gang people” were forcing him to.

The Appellant’s Accounts of the Offending in the time around his Arrest and up to his Trial

The appellant was arrested shortly after 4:50am on 1 February 2003. His trial before a jury began on 29 March 2005. In the time between his arrest and the beginning of his trial, the appellant gave varied accounts to different people regarding what occurred on 1 February 2003. A chronological summary of the appellant’s accounts to various witnesses is now set out.

Evidence of Ms Tudela

Ms Tudela gave evidence that she received a telephone call from the appellant at about 4:30am on 1 February 2003. The appellant said, “Can I come in? I have a problem. I’m at the front balcony” and Ms Tudela said, “Okay”. When she opened the front door, she saw a “big sports bag” and the appellant walking towards her front gate with two more bags. She said she told the appellant to come in and they went inside the house and put the bags in the hallway. Ms Tudela shut the front door and asked the appellant what was wrong, to which he said “he had a problem with his wife”. She said he did not say what the problem was at that particular time, and gave the following evidence of their conversation:

“A.    I again asked him what was wrong and he said he had a problem with his wife, Alesia [sic], and that he, she had accused him of assault but that he had not hit her.
Q.    But that he had not hit her?
A.    He was with someone else. With Raymond he said.
[…]
Q.    Did he say anything else about Raymond?
A.    He said that the wife had called the police because she was accusing him of assault and that he had to go back and sort this out with his wife.
[…]
Q.    Did you ask him why, what he was doing with all his possessions and money in those bags?
A.    Um, well no, because he has only had a problem with his wife so I assumed that obviously they had an argument and he had left home, something like that.
Q.    Did you ask him or say anything else to him?
A.    I did ask him what he is doing with so much, with the money that he said he had in the bag, why was he carrying money and I don’t know if he replied, I can’t remember, no. Oh he said he was going to explain later I think, yeah.”

In relation to the appellant’s demeanour, Ms Tudela gave evidence that he appeared agitated and “didn’t seem himself […] he was nervous and he looked very serious and worried, a bit distant, like he wasn’t right there”. In cross‑examination, Ms Tudela gave evidence that the appellant was “sort of talking” but that he did not seem to be talking to her at times. When asked if the appellant’s eyes appeared glazed, she said “I think so, yes”.
Ms Tudela stated that the appellant told her that inside the bags were all of his belongings and some money, and that he would “pick up his bags in a couple of hours”. Ms Tudela said the appellant was at her home for about 10 minutes, and that a couple of minutes after he left, he called her phone again and asked her to open the door. The appellant said he needed to “get something” and went to take something out of one of the bags before leaving again (Ms Tudela did not see what the appellant took from the bag). Ms Tudela gave evidence that that was the last occasion on which she had contact with the appellant.

Evidence of Senior Constable Longley

Senior Constable Bree Longley was one of the police officers who arrived in response to Mr Shen’s 000 call. She gave evidence that at about 4:50am, she was talking to another officer when she saw the appellant driving towards her in Mr Shen’s car. She said the appellant parked the vehicle around 100 metres from her and that when he exited the car, she told him to, “Drop everything in your hands”. Senior Constable Longley gave evidence that at this stage, another officer came down to where she was and had his gun pointed at the appellant. She said the appellant did not comply at first, but that she walked up to him, grabbed him by the right arm, pushed him against the fence, placed him in a wrist lock, and handcuffed him. She gave the following evidence:

“Q.    After that was done, did the [appellant] say, ‘What is going on?’
A.    Yes.
Q.    Did you say, ‘You are under arrest for depriving the liberty of Raymond’?
A.    Yes.
Q.    Did he reply by saying, ‘I am being set up, I am being set up’?
A.    Yes.
Q.    Did you then say ‘Where is the gun, where is the gun?’
A.    Yes.
Q.    Did he say, ‘I don't have it’?
A.    Yes.
[…]
Q.    How did he respond to you, what manner?
A.    Disbelief almost.”

Senior Constable Longley gave evidence that she left momentarily in order to obtain a caged police vehicle. She said that when she returned, their interaction continued as follows:

“Q.   […] did he say to you, ‘What am I under arrest for?’
A.    Yes.
Q.    Did you say to him, ‘You are under arrest for depriving the liberty of Raymond’?
A.    Yes.
Q.    Did he say to you, ‘I’m being set up, I’m being set up’?
A.   Yes.
Q.    Did you then say to him, ‘You do not have to say or do anything if you do not want to’?
A.    Yes.
Q.    ‘Do you understand that?’
A.    Yes.
Q.    Did he say ‘I'm being set up’?
A.    Yes.
Q.    Did you again say, ‘Do you understand that?’
A.    Yes.
Q.    Did he make no response?
A.    That's right.
Q.    Did you then say to him, ‘Anything you say or do will be recorded and may later be used in evidence. Do you understand that?’
A.    Yes.
Q.    Did he make no response?
A.    That's right.
Q.   Did was he then placed into the rear of the caged truck?
A.    Yes.
Q.    After he'd been placed in the truck was the door shut?
A.    Yes.
Q.    And locked?
A.    Yes.
Q.    What happened then, anything?
A.    I could hear the accused screaming in the back of the truck and bangs against the side walls.
Q.    Were you able to discern anything that he was saying?
A.    No.”

Senior Constable Longley gave evidence that the appellant was then taken to Maroubra Police Station and introduced to the custody manager.

Evidence of Detective Sergeant Davis

At about 5:20am on 1 February 2003, Detective Sergeant Sydney Howard Davis saw the appellant in the charge room at Maroubra Police Station. Detective Davis gave evidence of their conversation throughout the day as follows:

“I said ‘We have been told that you robbed and tied up the victim and you were arrested in the victim’s car. Where were you?’ He said, ‘He set me up’.”
[…]
“When I walked in [the appellant] said ‘Why am I here?’ I said, ‘We’re investigating the robbery of Raymond Shen at your unit.’ He said, ‘I was at North Sydney McDonalds at 2.10 a.m.’ I said ‘Okay’.”
[…]
“[…] I showed him the detention warrant. […] I said, ‘This is your copy, I’ll have the Custody Manager put it in your property, okay?’ He said, ‘Yes but I was at McDonalds Kingsford at 2 a.m. and at the Ritz at 2.30 a.m. where I work.’ I said, ‘You told me before that you were at North Sydney McDonalds’. He said ‘No, I was at Kingsford’. I said, ‘Okay, we’ll check it out’.”

Evidence of Detective Sergeant Maree

Detective Sergeant Joseph Maree was the officer-in-charge of the investigation and one of the officers who spoke to the appellant at Maroubra Police Station on 1 February 2003.
At about 11:20am, Detective Maree introduced himself to the appellant in the charge room and gave the following evidence of their conversation:

“I said, ‘What I propose to do now is speak to you about Raymond Shen and what has happened during the night. Do you understand that?’ The [appellant] began crying and said, ‘My wife rang the police and told them I hit my son and I do not see my children. I do not know why this is happening to me, he has a plan for me, he knows why he has put me here and he will lead me.’
I said, ‘Who is he?’ The [appellant] did not reply and continued crying. I said, ‘Who are you talking about?’ He said, ‘Raymond asked me to hit him on the head.’ I said, ‘Why would he ask you to do that?’ The [appellant] did not reply and continued crying.”

Detective Maree then confirmed with the appellant that he had spoken to his solicitor earlier that morning and offered him a further opportunity to speak to his solicitor, which the appellant accepted. At 11:45am, the appellant was moved to a different area of the police station to speak to his solicitor. At about 12:05pm, the appellant returned to the charge room and his solicitor left the police station. At about 1:30pm, Detective Maree had the following conversation with the appellant:

“I said, ‘Did you speak to a detective a little while ago and say to him that you weren’t at McDonald’s North Sydney, you were at McDonald’s Kensington?’ The [appellant] said, ‘Yes.’ I said, ‘What did you mean by that?’ The [appellant] said, ‘I was there about 2 o’clock. You can ask them, you can check and see me.’
I said, ‘What were you doing there?’ The [appellant] said, ‘I went there, then I went to the Randwick Ritz and I saw Adam.’ I said, ‘Who is Adam?’ The [appellant] said, ‘He works for me cleaning. I rang, I spoke to him first. I went there to wake him up to make sure he was working.’
I said, ‘What time was that?’ The [appellant] said, ‘When I got back in the car it was 2.22. I remember because of the three same numbers.’ I said, ‘Where did you go then?’ The [appellant] said, ‘I rang Raymond, his car had no petrol and I rang him to ask whether I should put petrol in the car.’ I said, ‘Why did you have Raymond’s car?’ The appellant said, ‘He asked me to burn it but when he gave it to me it had no petrol so I rang him and asked him if I should put petrol in the car’.”

Detective Maree asked the appellant if he was prepared to be interviewed about what he just said, to which the appellant said yes. Detective Maree then left to set up the interview room, and when he returned, he said the following occurred:

“A. I said to the [appellant], ‘Crespin, come with me.’ The [appellant] stood up and began to leave the cell. I looked into the cell and saw a number of documents on a bench inside the cell, including a section 10A form. I said to the appellant, ‘Bring those documents with you.’
The [appellant] picked up the documents and I saw a scrunched-up tissue on top of those documents. I said to the [appellant], ‘You can throw that in the bin,’ and I indicated the tissue to him. The [appellant] said, ‘No, Raymond gave it to me, it has his hair. He told me to leave it in the car when I burn it.’
I looked closely at the tissue and I saw it had what appeared to be a number of human hairs wrapped up inside it. I took possession of the tissue and the hair from the [appellant]. I said, ‘Have you got anything else on you?’ The [appellant] said, ‘Yes,’ and produced a receipt from the BP Service Station, Kingsford dated 2.31am on 1/2/2003. I also took possession of that receipt.
The [appellant] said, ‘I went and put petrol in the car. You can go there and see me. He asked me to hit him. I have been a black belt since I was 16. Don’t you think if I wanted to hit him.’ The [appellant] paused. I said to the [appellant], ‘Are you prepared to be interviewed about what happened last night?’ The [appellant] said, ‘Yes.’ I said, ‘Okay, come with me now and I will speak to you further about what has happened’.”

Detective Maree gave evidence that he then escorted the appellant to the interview room but that before the interview could commence, the appellant asked for his solicitor to be present. Detective Maree gave evidence that the appellant said, “I want to tell you what happened but I do not want to say anything that may incriminate me”. Detective Maree gave evidence that the appellant was then moved to a cell adjoining the charge room to speak to his solicitor and that a short time later, he was advised by the appellant’s solicitor that the appellant was not going to participate in the interview. Detective Maree confirmed at trial that he was not able to ask the appellant any questions in an interview.

Accounts Given by appellant to Medical Practitioners

Dr Jeffrey McDonald was the consultant psychiatrist at St Vincent’s Hospital where the appellant was admitted from 2 to 4 February 2003.
Dr McDonald gave evidence that the appellant was conveyed to the hospital by an ambulance after he was found unconscious, collapsed, and not responsive on the floor of the cells at the Surry Hills Police Centre. Dr McDonald gave evidence that the file recorded that the appellant admitted to taking soap with the intention of killing himself, and that the appellant denied the charges and repeatedly stated that he had been “set up”.
On 3 February 2003, Dr McDonald saw the appellant for around 30 minutes in his capacity as a psychiatrist. With the assistance of his notes, Dr McDonald gave the following evidence of the appellant’s account:

“[…] He gave an account of entering a room, feeling cold and feeling ‘drunk’, though he told me that he hadn't been drinking any alcohol and was not intoxicated. He described to me in very vague terms a bloody scene with at least two young people, picking up a pistol, putting it in the front of his shorts and a bag with money.
He then repetitively told me ‘I did not help them. Oh God, nobody will ever forgive me,’ in a very tearful and remorseful state.”

The notes of Associate Professor Kay Wilhelm (a psychiatrist) which were tendered through Dr McDonald, recorded the following account by the appellant:

“[…] Told some events of a man whom owes him money, asking to see him, then to burn his car and hit him on head to make it look as though he had been kidnapped. He told all this coherently, advised to talk to lawyer ASAP and police notified of the same.”

Dr Lawrence Varga was a general practitioner at Long Bay Hospital who was the doctor on duty and saw the appellant from 4 February 2003 onwards. Dr Ellis was a Senior Psychiatric Registrar who saw the appellant on 9, 10 and 12 February 2003. Dr Ellis’ notes were tendered through Dr Varga and recorded the following account by the appellant regarding the offending:

“Says he was asked by a friend Raymond CHEN to hit him, take belongings from his house and burn his car in an insurance scam.
He agreed after much pressure and after drinking ½ bottle of wine which he says affected him greatly.
He hit CHEN with binoculars and drew blood.
When he arrived at CHEN’s apartment found 3 bodies and a gun. He took the gun and CHEN’s belongings and left them at a friend’s house. He recognised the gun as CHEN’s. He had looked after the gun for CHEN in the past.
He was arrested when he drove CHEN’s car home.”

Dr Robert Reznik was a psychiatrist at Long Bay Hospital who also gave evidence confirming that the appellant told him “he thinks Raymond has set him up”.

Evidence of Ms Richards

Ms Richards said that on about 7 February 2003, the appellant called her on the telephone from gaol and they spoke for “a couple of minutes”. She described their conversation as follows:

“A. I asked him if he had a good alibi. I asked him if he had an alibi. He said ‘yes’. I said ‘Is it strong?’. He said ‘yes’. Throughout the conversation he was crying and I was telling him to hold on and I think I repeated again to him ‘is this alibi strong’ and he said ‘yes’. He also mentioned, told me to give my children a hug and a kiss. I think I might have asked him what happened and he replied with he went – Raymond had asked him to get some things from the unit and he went there and he saw the people and I said ‘Were they already dead?’, and he said ‘yes’ and he was so scared and he was crying the whole time, it was very hard for him to get any words out.”

Ms Richards gave evidence that she spoke to the appellant “probably a week after on the phone” but that she could not recall speaking about the offence on that occasion. She said that the first time she visited the appellant in gaol was inabout April 2003 (three weeks after the preliminary hearing at the Local Court) but that they did not speak about the offence on that occasion either as her parents were with her. Ms Richards said that the next time she spoke to the appellant about the offending was maybe the weekend after her first visit. She described their conversation as follows:

“A. Again I asked if his alibi was strong and he said ‘yes’. He said Raymond had set him up. He said that Raymond had come over to our place and that he’d hit Raymond over the head and left him on the lounge with, I believe some towels or a T-shirt tied around his head, and Raymond had asked him to go and get some things from his place and when he got there that he had found the bodies already, already dead.”

Evidence of Mr Keats

Mr Keats gave evidence that on 8 February 2003, he went to visit the appellant at the hospital section of Long Bay with his wife and another friend. He said he spent “probably an hour” with the appellant and described their interaction as follows:

“Q.    Doing the best you can, can you tell us what you said to him and what he said to you about the circumstances that brought him to prison?
A.    In the context of both my wife and I were very upset. Crespin was very upset. There was a lot of crying and it was very difficult. That’s the sort of scenario that we were involved in, plus we were in an environment we had never been into before, having been in the gaol. There was – my main aim, I was totally staggered at what all this was about. I asked a question to Crespin, ‘What’s going on? What’s happening?’ And Crespin replied, like, he didn’t do it. I said, ‘Well, you know,’ like it was all sort of – I suppose it was very emotional in sort of asking questions. […]
[…]
A.    He said that – he was telling me about the fact that the fellow Raymond had asked him to hit him on the head. We sort of had a bit of background information on what had gone on from the family. We were all that day in the morning meeting, trying to sort of clean up his unit. So we had a bit of background. He told me that during the time in that night Raymond – I didn’t understand all the answers I got, but he’s told me that Raymond asked him to hit him. He hit him. He obliged eventually. He used a shirt and some tape to try and stop the bleeding. He told me that he was – he went to – that Raymond had insisted taking his car to go to the unit to pick up a bag and a gun and I’d asked him did he see anybody there when he was there and he told me that he hadn’t seen anybody. I think that about covers my recollection of what was said.”

On 3 March 2003, Mr Keats received a handwritten letter from the appellant. The letter was tendered in the trial and contained the following:

“[…] I want all of you to know Raymond is playing up his last cards. I want to make the record straight. I’m not gay, bi-sexual or a killer. I’ve been done by a manipulative man who promised to sponsor my brother Eloi to Australia by getting him a Visa. The so-called lady I was having an ‘affair’ with was to marry him so he could stay. I obviously misjudge people, putting total confidence in Raymond. I never kill and never will and I’m simply glad the Court system here is not like in Benin and I will have my say. […] After driving over 10,000 km marketing tiles for Raymond and I decide to get paid back as a gambler. He decide to get […] rid of once [and] for all of everybody standing on his way. […] I don’t have debt. He owes me money and now it me accused of stealing from him. The truth will come out. I don’t want anybody to support me throughout this ordeal but believe it better that I made the point clear that I am not a gay, paedophile, child molester or thief. […].”

The relevance of the subsequent course of Mr Adanguidi’s illness is that it provides support for the accounts of signs and symptoms of acute psychosis from very soon after his arrest, and also provides some support for Mr Adanguidi’s account of the emergence of symptoms of psychotic illness several months before his arrest.
At the time of the initial interview I was sceptical of Mr Adanguidi’s account of his symptoms because his account of other events was so unreliable, and also because there was little in the way of objective signs of schizophrenia at that stage as he had been treated with antipsychotic medication. Hence my finding of a probable schizophrenic illness was largely based on the observations of other doctors, and the history elicited from Mr Adanguidi was not relied on.
I am now more confident that Mr Adanguidi has a severe and disabling form of mental illness and that he was acutely mentally ill around the time of his reception to gaol. Moreover, schizophrenic illnesses generally do not begin suddenly and usually develop insidiously, with a prodromal phase of the illness lasting for months or even years.
It is worth noting that although Mr Adanguidi offered an improbable explanation for his apparent involvement in the offences, and gave an account of symptoms of mental illness, he did not take up the opportunity during either of our interviews or during the interviews with Dr Westmore to explain his behaviour in terms of symptoms of mental illness.
(iv) Research into relationship between first episode psychosis and violence
My opinion has also strengthened as a result of the development of scientific knowledge and becoming aware of existing research about the relationship between the first episode of psychosis and serious violence. I found that 61% of those who committed homicides during psychotic illness in New South Wales between 1993 and 2002 did so during their first episode of mental illness, prior to receiving effective treatment. [Nielssen O, Westmore B, Large M, Hayes R. Homicide during psychotic illness in NSW from 1993 to 2002. Medical Journal of Australia (2007) 186:301-304].
This finding was supported by a review of studies in other countries that reported whether or not psychotic patients had received treatment prior to committing a homicide. We found 16 studies with a total of 1186 subjects, of whom 465 (39.2%) had not received treatment. [Nielssen O, Large M. Homicide during the first episode of psychosis. Submitted to the British Journal of Psychiatry, 2007]
There are a number of studies showing high levels of non-lethal violence prior to the first admission for treatment of psychosis. The most compelling evidence comes from studies that link mental health records with criminal histories conducted in Denmark, London, Victoria, which all show a peak of violence offences by schizophrenic patients prior to treatment, a marked decline in violence after treatment and a very low level of new incidents of violence in patients who did not have a conviction for a violent offence prior to the first admission. These studies confirm that the greatest risk of serious violence is during the prodrome and first episode of schizophrenia.
The relevance of the new scientific understanding of the phase of psychotic illness and serious violence to Mr Adanguidi’s case is that it supports the opinion of the psychiatrists who have assessed him that his behaviour was at least partly due to the effect of symptoms of an emerging psychotic illness.” (Emphasis added)

With respect to items (i) and (ii) above, it has already been noted that the St Vincent’s Hospital records and the evidence of Ms Richards were available to Dr Nielssen when he gave evidence before the jury. Insofar as his conclusions of September 2007 are based upon that information, the appellant was in a position to adduce the opinions on that basis at trial and they cannot be said to be fresh evidence. Further, Dr Nielssen’s September 2007 conclusion, that the appellant’s capacities were substantially impaired on 1 February 2003, lacks cogency so far as it rests upon the St Vincent’s Hospital records and evidence of Ms Richards because, with the same material before him at trial, the doctor said he could not be satisfied of a substantial degree of impairment.
Item (iii) above of the changed circumstances, is the post-2005 course of the appellant’s schizophrenia. Insofar as Dr Nielssen seeks to explain his revised view of substantial impairment upon that basis, the opinion entirely lacks cogency. In the passages of his trial evidence quoted at [221] above, Dr Nielssen clearly accepted that the appellant had been reliably diagnosed with a schizophreniform disorder on 9 February 2003, and that, on the balance of probabilities, that diagnosis was still valid at the date of trial. He said that in reaching that conclusion he relied upon the medical records of assessment and treatment of the appellant in custody. Evidently his own examinations of the appellant in June and July 2004 had not disclosed any ground for rejecting the post-homicide, continuing diagnosis. The 2007 report does not explain how, in the period of two years since he gave evidence, the subsequent course of the appellant’s schizophrenia could have any bearing upon determining the nature and quality of his prodromal or first‑episode-psychotic symptoms at the time of the homicides, or upon the question of whether those symptoms would have caused substantial impairment. For this change of circumstance to be a credible basis for the revised opinion, some explanation would have to be given, because the proposition is counterintuitive.
Item (iv) above of the developments said to have given rise to Dr Nielssen’s changed opinion on the partial defence, consists of research that has identified a statistical correlation between acts of serious violence and first episode psychosis in the perpetrators of such acts. In the highlighted portion of the above quoted passage of this report, Dr Nielssen suggests that acts of violence are statistically correlated to both the prodrome and first episode psychosis. In contrast, Dr Large understands the correlation to apply only to first episode psychosis, which, as earlier noted, he distinguishes from the prodrome. Dr Large’s view of the research is considered further below.
In his oral evidence on the appeal Dr Nielssen said this:

“[The] data linkage studies, some of them must be referring to prodromal illness because […] they show a contact with the criminal justice system just before the contact with the mental health system.”

However, he acknowledged that the two research papers cited in his September 2007 report do not make specific reference to the prodromal phase. The doctor’s oral evidence to justify his reliance upon the research for a correlation between acts of violence and the prodrome of schizophrenia was not coherent or persuasive.
The unsatisfactory state of the evidence about whether violence has been found to be correlated with prodromal symptoms as well as with first episode psychosis, or only correlated with the latter, is of little to no significance for the purposes of determining the appeal. The real problem for the appellant is the attempt to use a general statistical relationship to prove a diagnosis of, or to draw a conclusion concerning, an individual accused at the specific time at which he committed particular acts of violence.
Understandably, the correlation identified in the studies leads to a scientific hypothesis of causality. The research does not constitute evidence that in any individual case the acts of violence were caused by the symptoms of mental disorder. Moreover, in a trial for murder the matters that must be established on the balance of probabilities to engage either the partial defence of substantial impairment or the complete defence of mental illness are much more exacting than mere causation in a general sense. Dr Nielssen does not purport to draw from the research any generally applicable mechanism of causation that is implied by the statistical correlation. He does not suggest that the research has identified that either prodromal symptoms or first episode psychosis will in all cases impair to a substantial degree any particular faculty, or that those symptoms will always deprive the affected person of an understanding of the nature, quality and/or wrongfulness of his or her violent acts. The research provides no cogent basis, even as a contributing factor, for Dr Nielssen’s revised opinion that, in the specific case of the appellant, his capacities were substantially impaired on 1 February 2003.
In summary, the matters to which Dr Nielssen attributes his September 2007 opinion are either not post-trial developments (items (i) and (ii)) or they provide no relevant foundation for the new opinion (items (iii) and (iv)). The opinion in the report that the appellant’s capacities were substantially impaired is new evidence rather than fresh and it lacks cogency, being a departure from the opinion expressed at trial without coherent justification. On its own the report would not justify a conclusion that there has been any miscarriage of justice in the jury’s verdicts.

Dr Nielssen’s Report of 29 December 2014

In a further report for the appellant’s solicitors of 29 December 2014, Dr Nielssen concluded that by that date the appellant’s schizophrenia was in remission, although he continued to receive relatively low dose injections of antipsychotic medication. In this report, Dr Nielssen again referred to the research studies that he cited in September 2007. As background to his expression of opinion on the significance of the research, Dr Nielssen gave the following retrospective on the trial:

“The effect of a severe and disabling form of mental illness was raised in [the appellant’s] trial. From the information that was available, [the appellant’s] offence was not thought to be directly related to symptoms of mental illness in a way that might have left open the defence of mental illness. Instead, the psychiatric experts agreed that he had the defence of substantial impairment by abnormality of mind available to him because of the effect of emerging mental illness on his perception of events in his capacity to control his actions. However, the court [scil, the jury] decided otherwise, and he was found guilty of the murders. Moreover, the effect of mental illness was not held to be a mitigating factor that might reduce the sentence imposed for the offences.”

As can be seen in the passages of trial evidence quoted earlier, this is not an accurate summary. Dr Westmore, disagreeing with Dr Nielssen, did consider that the defence of mental illness was open. Dr Westmore was not asked, in terms, about the partial defence of substantial impairment. Dr Nielssen did not accept that the appellant “had the defence of substantial impairment by abnormality of mind available to him because of the effect of emerging mental illness on his perception of events in his capacity to control his actions”. No such opinion was expressed orally by him to the jury.
In his report of December 2014, Dr Nielssen made the following observations on the research:

“The reasons for the greatly increased rate of irrational violence during the first episode of psychosis include the absence of the experience of remission from symptoms after treatment, having never received a medical explanation for frightening symptoms and because people around the affected person do not realise that the person has become unwell. Another factor appears to be the gross disturbance of emotional regulation and the capacity for logical thinking associated with emerging psychosis, which greatly increases the propensity for irrational and disproportionate violence.
[…]
In my opinion, the scientific research about the effects of the prodromal phase of mental illness and the first episode of psychosis on moral reasoning and behaviour, which was not available at the time of [the appellant’s] trial and was only emerging at the time of his [2006] appeal, amounts to new evidence that is relevant to his offending behaviour and warrants a review of the outcome of his case.” (Footnotes omitted)

Those observations are affected by the considerations stated at [280] above, concerning Dr Nielssen’s September 2007 report. In December 2014 Dr Nielssen did not reiterate his 2007 opinion that the appellant’s capacities were substantially impaired. For reasons already given, the research is not an available or cogent foundation for any such expert psychiatric opinion concerning an individual accused. Nor would the research be independently admissible. A body of research giving rise to general scientific conclusions about a class of mentally disordered offenders and the statistical correlation between their offending and first episode psychotic symptoms (or prodromal symptoms, if the research goes that far), could not be received as evidence to prove causation with respect to the appellant, let alone to establish the legal criteria of s 23A or the mental illness defence.

Dr Large’s Report of 10 September 2009

In his report of 10 September 2009, which was also put before the Court on the appeal as fresh evidence, Dr Large refers to the same research papers as cited by Dr Nielssen. The sub‑headings in Dr Large’s report, and the terms in which he summarises the research, are significant having regard to the distinction he draws between the prodrome of schizophrenia and first episode psychosis. Unlike Dr Nielssen, Dr Large understands the research as identifying a connection between violent conduct and first episode psychosis, but not prodromal symptoms:

“New evidence about [t]he risk of homicide in first episode psychosis
Three papers have been published indicating a greatly increased rate of homicide in first-episode psychosis, when compared to previously treated psychosis … .
A fourth paper provided epidemiological evidence to support the contention antipsychotic treatment reduces homicide by the severely mentally ill and therefore supports the finding that a lack of treatment for severe mental illness is a risk factor for homicide … .
The finding that untreated schizophrenia is associated with the highest risk of homicide has recently been confirmed by an independent research group from Denmark … .
Hence, five papers have been published since 2007 indicating a greatly increased risk of homicide among people with untreated schizophrenia. This was unknown before this date.”

Dr Large concludes from the above and from other post-trial research that “there have been three advances in the scientific literature with respect to homicide by the mentally ill after 2007”, as follows:

“New evidence about the factors associated with homicide in schizophrenia
[…]
First it has been more firmly established by meta-analysis that patients with schizophrenia comprise approximately 6.5% of homicide offenders and that the risk of homicide by a person with schizophrenia is in the order of 20 times that of a person without the disorder.
Second prior to 2007 there was no scientific evidence that the early and undiagnosed phase of schizophrenia carried any particular risk for homicide. In fact it was generally believed that patients who were known to suffer from schizophrenia and who had been unwell for some time carried the highest risk. [… ] It has now been established in multiple publications … that there is a greatly increased risk of homicide during first episode schizophrenia and that the order of magnitude of this increased risk is between 10 and 20 times when compared to later in the illness. This is in addition to the increased risk at any time and the risk of homicide in first episode schizophrenia is cumulative. The rate of homicide in first episode schizophrenia is 1 in 220 in NSW … and 1 in 630 worldwide … .
Third, it is now clear that the sociological factors that determine rates of homicide by the mentally ill (and therefore the majority of such homicides) are not very different to [those] of other homicides and it is probable that the reason patients with schizophrenia are more likely to commit homicide is not solely because of the overt symptoms of psychosis such as delusional thinking, but because they are more vulnerable to social and other factors that determine the overall homicide rate.”

Those advances in the scientific literature are concerned with first episode schizophrenia, not with any relationship between prodromal symptoms and homicide. Dr Large considers the latter topic under a separate heading towards the end of his report, as follows:

“Homicide and the prodrome of schizophrenia
There has been less progress in developing an understanding of the relationship between the prodrome of schizophrenia and violence, and less is known about the risk of homicide in the prodrome of psychosis.
However, it can be difficult to determine when the prodrome of schizophrenia ends and when the first episode of schizophrenia begins. Schizophrenia is not an illness that emerges suddenly, without warning. Schizophrenia is the result of neurological processes occurring over years rather than months, weeks or days. Prominent in the process of schizophrenia is the presence of cognitive impairments that are believed to be one of the earliest, most important and enduring manifestations of the illness. These cognitive deficits affect memory, attention and decision making functions, and predate more obvious symptoms of psychosis such as hallucinations and delusions. Cognitive deficits would be expected to have some impact on moral reasoning and decision‑making although they might not deprive a person of knowledge of right and wrong in the same way as a bizarre delusional belief or the grossly disorganised thinking of acute psychosis. However, these deficits in cognition and thinking contribute to the increased vulnerability to social factors that are associated with the variation in the risk of homicide by people with schizophrenia.” (Emphasis added)

The highlighted portion is the only expression of scientific opinion about whether a person’s capacities may be substantially impaired (for the purposes of the partial defence) or whether the person may lack understanding of the nature, quality or wrongness of his or her acts (for the purposes of the mental illness defence). The report, including the highlighted passage, would not be admissible in proof of any of the requirements of either defence with respect to the appellant specifically, for the reasons already given in relation to Dr Nielssen’s reports of September 2007 and December 2014. Neither the symptoms suffered by the appellant on 1 February 2003, nor the effects of those symptoms upon his actions and understandings can be proved by evidence of a statistical correlation between acts of violence and mental disorders amongst a large sample of perpetrators.

Combined Effect of Additional Evidence – Partial Defence

In this appeal, the combined force of all the putative fresh evidence relied on by the appellant is no greater than the force of the individual items. The research papers constitute material that was not available at the trial because the respective studies had not yet been carried out or reported upon. However, while those papers and any accompanying expert evidence explaining them constitute fresh evidence, the evidence does not support the partial defence of substantial impairment. For the same reason, the papers cannot support a finding of miscarriage of justice by reason that the results of this research were not available for tender in 2005. The changed opinions of Dr Nielssen are new evidence rather than fresh. Taken together, they are not sufficiently cogent to persuade the Court that the appellant has been wrongly convicted, or even that he has been denied a fair chance of acquittal as a result of Dr Nielssen not having expressed those post-trial opinions on substantial impairment to the jury.

Combined Effect of Additional Evidence – Mental Illness Defence

Just as the post-trial research evidence is not capable of proving that the appellant suffered from any substantial impairment of his capacities, it is also not capable of proving that his mental disorder had the still more deleterious effect that would have to be proved on the balance of probabilities to sustain the mental health defence. As for Dr Nielssen’s post-trial opinions, they lack cogency to prove that the appellant lacked understanding of the nature, quality or wrongfulness of his acts, just as they lack cogency to prove substantial impairment of capacities. Indeed, the post-trial opinions of Dr Nielssen only purport to substantiate the availability of the partial defence, not the mental health defence. Dr Nielssen gave this evidence on the appeal:

“A.    […] I certainly now believe that he was significantly compromised in his ability to judge right from wrong, to exercise proper self-control and in his perception of events.
Q.    So what do you say now, you think that this new or fresh evidence that you’re putting forward impacts on the mental illness defence as well, are you?
A.    No, I’m - I still don’t believe he quite reached that threshold given all the circumstances but I do believe that he was significantly mentally ill and it affected those domains.”

It follows from our earlier analyses and discussions that the additional evidence does not permit this Court to hold that there is any basis for the defence of mental illness to be established, nor that the additional evidence is new. Much less can it be concluded that there has been any miscarriage of justice in this respect.
These conclusions mean that there is no need for the Court to consider the evidence taken on the appeal from Dr Greenberg, a specialist forensic psychiatrist. Dr Greenberg was not an expert called at the trial. He was retained by the Crown for the purposes of the appeal. The conclusions we have earlier recorded about the nature and quality of the evidence of Dr Nielssen took no account of the evidence of Dr Greenberg. Accordingly, it is unnecessary for the Court to consider the disputed issue about the admissibility of Dr Greenberg’s evidence or the way the Court is entitled to use it, if it is admitted.
We have not been persuaded that there is any sound basis to uphold Ground 1 of the appeal grounds. It follows that the three convictions of murder should stand and not be set aside.

Ground 2 – The Sentence Ground

In his report of 10 September 2009, Dr Large records the results of a number of specific studies and papers. The details of his report have been earlier set out at [285]. Relevantly for the purpose of sentence, he notes these conclusions:

in these studies of which Dr Nielssen and Dr Large were co‑authors, in NSW, there is a greatly increased rate of homicide in first-episode psychosis when compared to the rate in previously treated psychosis. The difference is 1 in 220 patients per year for first episode psychosis, namely those who have not previously been treated, compared to 1 in 10,000 patients for those who have had effective treatment;

a fourth paper of Dr Large’s in 2008 established epidemiologically that effective treatment with antipsychotic medication reduced the rate of homicide in mentally ill people. The study concluded that an earlier 1999 study to the opposite effect was erroneous; and

a study in Denmark found, in 2009, that untreated schizophrenia was associated with the highest rate of homicide.

These descriptions of, and conclusions about these studies, which were unknown at the time of the sentencing (including the CCA judgment) were not challenged by the Crown in cross‑examination before us.
In expressing his conclusions in the SJ about the reasons for the imposition of three life sentences, Barr J reached some factual conclusions about the appellant’s mental state. He said:

“68   There were noticeable changes in the offender’s behaviour during the weeks immediately before the murders …
69   These facts, which do not depend upon any history given by the offender, show that changes were probably taking place in his perception of events. The evidence supports the conclusion that the offender was developing an unreasonable belief that others might be watching him.
70   I think that what the offender’s wife was witnessing was the prodromal phase of a psychotic illness. I think that the illness continued to develop after the murders. …”

Justice Barr, in considering the imposition of life sentences, identified these features as being the relevant conclusions:

“76   The offences were of great heinousness. …
…
81   It is unnecessary to come to any conclusion about the future course of the offender’s illness or about whether he will in the future constitute a danger to others. In any case, the evidence would not permit any confident finding about such matters.
…
83   I am satisfied that the level of the offender’s culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence for each offence.” (Emphasis added)

We note that the conclusion expressed in [83] reflects the terms used in s 61(1) of the Crimes (Sentencing Procedure) Act 1999.
The parts of the SJ which have been the subject of added emphasis show that the question of the future course of the appellant’s mental illness, and his future danger to the community, necessitating community protection being considered as part of the sentencing process, were each considered and taken into account as being relevant by Barr J.
The sentences of Barr J and the facts found by him were upheld by the Court of Criminal Appeal. In the CCA judgment, Hislop J (with whom Spigelman CJ and Sully J agreed) noted, that in some cases the existence of a mental illness, even though not a cause of the offences, may be a mitigating factor on sentence. However, his Honour concluded that the criminality inherent in the homicides was sufficient to justify the life sentences which were imposed: see [57] and [58] of the CCA judgment.
The Court of Criminal Appeal did not permit the appellant to adduce evidence of the opinion of Dr Nielssen contained in his report of 29 October 2006, on the appeal to it.
Relevantly for this ground of the appeal, Dr Nielssen in that report said:

“With regards future dangerousness … [Mr Adanguidi’s] risk of future offences could be reduced by consistent treatment for what is now a chronic mental illness with antipsychotic medication …”

Justice Hislop rejected the attempts to tender the report of Dr Nielssen saying that his “… additional comments do not impact upon the question of the applicant’s capacity at the time of the murders” at [64]. He also concluded that had that evidence been admitted, it would not have led to the imposition of any different sentence and so, in accordance with s 6(3) of the Criminal Appeal Act 1912, assuming error had been shown, no other less severe sentence was warranted in law.
However, the evidentiary position is not the same on this appeal. It cannot be doubted that the evidence of Dr Large set out at [290], setting out the results of the studies and papers, all of which post-dated the imposition of the three life sentences, falls into the category of “fresh evidence”. It was not evidence which was in existence at the relevant time, nor was it discoverable by reasonable diligence on the part of the appellant or his lawyers.
By application of the various legal tests outlined earlier to the sentencing process undertaken by a Judge (rather than a jury considering its verdict), it seems that the question to be asked when dealing with Ground 2 is, where there is fresh evidence which is credible or plausible, as the evidence here is, whether there is a significant possibility that the sentencing Judge, acting reasonably, would have imposed a different sentence for each offence, which was less than the three life sentences which were imposed.
Although the SJ has been referred to at length earlier, it is necessary to look at the proceedings on sentence to ensure that the whole context leading to the imposition of the life sentences can be understood.
In its written submissions to the sentencing Judge, in addition to addressing the question of whether a mental illness existed which may have impacted upon the moral culpability of the appellant, the Crown submitted as follows:

“29 This is a case in which the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty. (See Garforth, Leonard [1998] NSWCCA 7, Rose [1999] NSWCCA 327, Fernando (1997) 95 A Crim R 5533 and Harris [2000] NSWCCA 469).”

Counsel for the appellant tendered a number of expert reports on sentence.
The first was a report of Dr Westmore of 2 May 2005. This report post‑dated the conviction. Dr Westmore said:

“Thank you for your facsimile of 29 April 2005 requesting an opinion regarding Mr Adanguidi’s future dangerousness.
If Mr Adanguidi committed the offences as a result of a mental illness, and that is the view I hold, then his risks of reoffending will be significantly reduced if his mental illness can be treated to the point where it goes into remission. At that time, theoretically, his risks of reoffending should probably be no greater than the general population. If, however, he suffers a relapse of his mental illness, then his risks of reoffending may become high.
If Mr Adanguidi was not mentally ill when he committed the offending behaviour, then I would consider him to be a potential ongoing risk to the community.”

As well, the appellant tendered the report of Dr Tony Mastroianni of 16 May 2005. That somewhat lengthy report included the following opinions:

“Mr. Adanguidi is a 27 year old, married father of two children who is currently in the Long Bay Prison Complex. He was recently found Guilty on three counts of Murder. It is my opinion, within reasonable medical certainty from the information available to me, that Mr. Adanguidi suffers from a chronic mental illness. His provisional diagnosis is Chronic Schizophrenia, although a Schizoaffective Disorder cannot be ruled out at this stage. A Schizoaffective Disorder is a schizophrenia-like illness with prominent mood symptoms.
…
Mr. Adanguidi’s prognosis is guarded at this stage. Positive prognostic factors include his compliance with treatment, his at least partial response to treatment on medication, and his supportive family. Negative prognostic features include the persistence of some core psychotic features despite high dose medication, the ongoing stressors of Court and life in the main prison, and his potential for dangerousness based on his past behaviour (i.e. the Index Offences) and descriptions of unprovoked psychotic thoughts to harm others in prison.
Whatever the Court decides, it is imperative that Mr. Adanguidi continues to receive ongoing antipsychotic medications to closely treat his mental illness, both to reduce his subjective distress and to reduce his risk of recidivism. It is as yet unclear whether his current medications will suffice in the long-term to bring his psychotic mental illness into remission or whether further hospitalisation and/or alternative medications might be needed in the future …” (Emphasis in original)

Dr Mastroianni is a specialist psychiatrist who, at the time he gave his report, was a consultant psychiatrist to the NSW Corrective Health, and was the appellant’s treating psychiatrist. He conducted a general adult and forensic psychiatry practice in Sydney.
Counsel for the appellant, in her submissions on sentence, opposed the imposition of life sentences for the homicides of which the appellant had been convicted. In those submissions she invited the Court to accept the opinions as to the appellant’s prognosis, including the positive prognostic factors referred to in the expert report of Dr Mastroianni. Counsel submitted that the appellant’s risks of reoffending would be significantly reduced if his mental illness could be treated to the point where it went into remission. She submitted that the Court would accept Dr Westmore’s opinion that, if that occurred, the risk of the appellant’s reoffending would be “… no greater than the general population”.
On sentence, Barr J needed to address the competing submissions by reference to these prominent issues, in addition to the usual sentencing considerations:

was the appellant at the time of the homicide suffering from a mental illness, if so, what was it and did it have any causal connection to those homicides or other relevance to his culpability;

how were the purposes of sentencing, namely adequate punishment, general and specific deterrence, community protection, rehabilitation, accountability, denunciation and recognition of the harm done to the community, to be balanced;

at the time of sentencing, was the appellant then suffering from a mental illness? If so, how would that impact upon the need for specific deterrence, rehabilitation and the protection of the community; and

in light of the Crown’s submissions, was this a case in which the level of culpability in the commission of the offences was so extreme that the community interest in retribution, punishment, community protection and deterrence would only be met through the imposition of a life sentence.

Justice Barr resolved the first issue in [72] of the SJ by concluding that the evidence provided no recognisable connection “… causal or otherwise …” between the appellant’s state of mind and his commission of the acts causing the three deaths. For reasons which we have earlier explained, there is nothing in the evidence on this appeal which could suggest that this conclusion was wrong having regard to any additional evidence.
The third issue, namely the mental illness, if any, suffered by the appellant at the time of sentencing, was a matter upon which Barr J could not reach any definite conclusion. At [81] of the SJ, he said that the evidence did not enable him to make any “confident findings” about the future course of the appellant’s illness or about whether the appellant would in the future constitute a danger to others. At [46] of the SJ, Barr J noted the provisional diagnosis of chronic schizophrenia which had been reached by Dr Mastroianni, which is referred to at [310] above. Barr J also noted the uncertainty in Dr Mastroianni’s opinion about the appellant’s future course.
Accordingly, on the third issue, his Honour could not proceed to draw any conclusions relevant to sentencing about the appellant’s future dangerousness, his rehabilitation and the need for community protection.
His Honour gave careful consideration to whether he should impose life sentences, as identified in the fourth issue above. The submissions of the Crown drew his attention to a number of authorities dealing with the imposition of life sentences. A number may be noticed.
In R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409, Wood CJ at CL (with whom Giles JA and James J agreed) said at [102]-[103]:

“102 The level of heinousness involved in the three killings, and the future dangerousness of the respondent, it was put [by the Crown], meant that the subjective circumstances were of so little weight that they should have been entirely discounted, either as irrelevant or of no weight.
103 So far as this submission depended upon the proposition that, in some cases, the offence or offences for which an offender stands for sentence are so heinous, that the subjective circumstances should be disregarded either wholly or substantially, then it was, in my view, consistent with principle. In particular, there is support for this view in the decisions of … Leonard … Rose … and … Fernando.”

Justice Wood concluded in Harris at [105], that that matter was one of such heinousness “… with the consequence that the subjective circumstances could not displace the need for life sentences”.
In R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557, Wood CJ at CL (with the agreement of Tobias JA and Hidden J) said at [52]:

“52 In my assessment, the primary focus of the legislation is directed towards how extreme the offender’s culpability is. … [T]he various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime.”

As Barr J said in the SJ, it was unnecessary to come to any conclusion about the appellant’s future. That was because, in accordance with authority, the offences were of great heinousness. They fell within the worst category of case, and the appellant’s criminality was so grave “… as to make it impossible for the Court …” to allow any reduction in sentence. In those circumstances, his Honour did not have to consider and weigh up, even if the evidence permitted him so to do, the subjective case of the appellant.
The CCA judgment confirmed the correctness of this approach, Hislop J saying:

“57 His Honour accepted the applicant had a psychotic condition subsequent to the murders. In some cases the existence of a mental disability or disorder, even though not contributory to the offence, may be a mitigating factor on sentence – see R v Engert (1995) 84 A Crim R 67.
58 However the criminality inherent in these offences, it having been found the offences were not the result of or contributed to by a mental or psychiatric condition, is of such a degree as not to permit of any mitigation of penalty on this basis – Engert at 68.7, Harris at [103]-[105].”

It can be seen from the SJ and CCA judgment that this matter, and the sentences imposed, fell into a very small cohort of sentences where such was the heinousness of the conduct and the inherent criminality that the evidence with respect to the subjective factors of the appellant was simply irrelevant and properly to be disregarded, or given very little weight, in accordance with the two-step approach to cases involving the application of s 61(1) of the Crimes (Sentencing Procedure) Act.
It follows from this analysis that as the fresh evidence was only directed at those subjective factors, regardless of its quality, it could have had no influence, assuming it existed at the time of sentence, on the sentences pronounced by Barr J which were upheld in the Court of Criminal Appeal.
The question posed in this appeal, set out at [305], with respect to this ground, must be answered in the negative. That is to say that, notwithstanding the existence of fresh evidence which is credible or plausible, there is no possibility (let alone any significant possibility) that the sentencing Judge, acting reasonably, would have imposed a different and lesser sentence for each of the offences.
For the avoidance of doubt, we have also concluded that the fresh evidence if given in the context of the sentencing proceedings would not have led to any doubt in the sentencing Judge’s mind as to the appropriateness of the sentences imposed.

Conclusion

We have not been persuaded by the appellant that we should quash his three convictions, nor that the three life sentences which were imposed ought also be quashed and the proceedings remitted for either retrial or else resentence.
We are of the view that the appeal should be dismissed.

**********

Decision last updated: 14 June 2024

Medium Neutral Citation:	Adanguidi v R [2024] NSWCCA 82
Hearing dates:	9 May 2023 – 11 May 2023
Date of orders:	14 June 2024
Decision date:	14 June 2024
Before:	Garling, Fagan, McNaughton JJ
Decision:	Appeal dismissed
Catchwords:	CRIME – Appeal and Reviews – Referral under Part 7 Crimes (Appeal and Review) Act 2001 – Court’s own motion – Dealt with on appeal. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence at the appellant’s trial – Whether such additional evidence is capable of establishing a reasonable doubt about the appellant’s guilt. CRIME – Appeals – Appeal against sentence – Where three life sentences were imposed – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence in the appellant’s sentencing proceedings – Whether such additional evidence, if available to the sentencing Judge, would have resulted in a lesser sentence.
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442 EC v R [2023] NSWCCA 66 Lawless v The Queen ; [1979] HCA 49; (1979) 142 CLR 659 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259; MRW v R [2011] NSWCCA 260 R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Bikic [2002] NSWCCA 227 R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Porter [1933] HCA 1; (1933) 55 CLR 182 Ratten v The Queen (1974) 131 CLR 510 R v Crespin Adanguidi [2005] NSWSC 519 Sodeman v R [1936] HCA 75; (1936) 55CLR 192 Xie v R [2021] NSWCCA 1
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Crespin Adanguidi (Appellant) The Crown
Representation:	Counsel: B Rigg SC / S De Brennan (Appellant) G Newton SC / C Akthar (Crown) Solicitors: Hal Jon Ginges & Company (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2003/6089
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Division Citation: [2022] NSWSC 442 Date of Decision: 14 April 2022 Before: Dhanji J File Number(s): 2003/6089