Carter v R

[2019] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Carter v R [2019] NSWCCA 11
Hearing dates:	6 July 2018
Decision date:	08 February 2019
Before:	Payne JA at [1] Schmidt J at [22] Button J at [31]
Decision:	1. Leave to appeal against conviction granted. 2. Appeals against conviction allowed. 3. The conviction for wounding with intent to murder is quashed. 4. The conviction for the driving offence involving a police pursuit is quashed. 5. On each count, a special verdict of not guilty on the grounds of mental illness is entered. 6. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the applicant is to be detained in such place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law. 7. The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court. 8. The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide those bodies with the following documentation: (a) A copy of the judgments of this Court and its orders; (b) A transcript of these proceedings; (c) A transcript of the trial; and (d) A copy of the exhibits tendered at trial.
Catchwords:	CRIMINAL LAW – conviction appeal – wounding with attempt to murder – police pursuit – trial by judge alone – parties agreed at first instance that special verdicts of not guilty on ground of mental illness should be returned – unanimous psychiatric evidence – verdicts of guilty returned – discussion of nature of determination pursuant to s 7(4) of the Criminal Appeal Act 1912 (NSW) – whether it appears to the Court of Criminal Appeal that applicant was mentally ill at time of acts – whether trial miscarried in that trial judge failed to address adequately in reasons for verdicts psychiatric evidence about demeanour of accused in recorded interview – convictions quashed – special verdicts of not guilty on ground of mental illness entered – explanation of meaning and effect of special verdicts
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Legislation Amendment Act 2004 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1907 Criminal Appeal Act 1912 (NSW), s 7(4) Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Act 1983 (NSW) Mental Health (Amendment) Bill 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
Cases Cited:	Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Hitchens v The Queen [1962] Tas SR 35 Hone v The State of Western Australia [2007] WASCA 283 JM v R (2014) NSWCCA 297 Mizzi v the Queen [1960] HCA 77; (1960) 105 CLR 659 R v Anderson [1981] VR 155 R v Atkins (1908) 1 Cr App R 45 and 69 R v Derbin [2000] NSWCCA 361 R v Fang (No 4) [2017] NSWSC 323 R v Fitchett [2009] VSCA 150; (2009) 23 VR 91 R v Fleeton (1964) 64 SR (NSW) 72 R v Hilder (1997) 97 A Crim R 70 R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20 R v M’Naghten (1843) 10 Cl & Fin 200; 8 ER 718 R v Matusevich and Thompson [1976] VR 470 R v McMahon [2004] VSCA 64; (2004) 8 VR 101 R v Porter [1933] HCA 1; (1933) 55 CLR 182 R v Weise [1969] VR 953 Stapleton v R [1952] HCA 56, (1952) 86 CLR 358 Stockton v R (1981) 3 A Crim R 384 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Yun v R [2017] NSWCCA 317 ZA v R [2018] NSWCCA 116
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 July 1911 at 1386-1387 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1986 at 3074-3076
Category:	Principal judgment
Parties:	Joseph Thomas Carter (Applicant) Regina (Respondent)
Representation:	Counsel: C Bruce SC (Applicant) S Dowling SC (Respondent)   Solicitors: Universal Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/344443
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 November 2016 Before: Bennett SC DCJ File Number(s): 2014/344443

Judgment

1. PAYNE JA: I have read the decision of Button J in draft. I agree with the orders proposed by his Honour. My reasons for doing so, however, whilst leading to the same outcome, differ slightly from those of his Honour in some respects that I will explain.

Legislative history

2. Section 7 of the Criminal Appeal Act 1912 (NSW) deals with “Powers of court in special cases”. This section was derived from s 5 of the English Criminal Appeal Act 1907 (7 Edw. 7 c. 23). Section 7(4) of the Criminal Appeal Act confers a discrete power on this Court to consider the question of whether a convicted offender was mentally ill at the time of offending, so as not to be responsible according to law.

3. In 1986, s 7(4) was amended by the Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW) so as to provide:

“If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law.”

4. The Bill introducing the Criminal Appeal (Mental Illness) Amendment Act was introduced as a cognate bill to the Mental Health (Amendment) Bill which identified anomalies requiring amendment to the then recently introduced Mental Health Act 1983 (NSW).

5. The Second Reading Speech for the Criminal Appeal (Mental Illness) Amendment Bill stated that the changes were not intended materially to change the power conferred on this Court by s 7(4). The Second Reading Speeches in both the Legislative Assembly and the Legislative Council when introducing the Bill stated:

“This bill amends the Criminal Appeal Act 1912 by updating terminology in that Act – for example, the reference to a lunatic is removed. …The proposed amendments to the Criminal Appeal Act clarify the appeals which can be made against specified orders or findings under the Crimes Act in relation to fitness to plead or mental illness; and empower the appeal court to make any necessary findings, verdicts, orders or determination in relation to those appeals.”

6. The subsection was later further amended by the Crimes Legislation Amendment Act 2004 (NSW) to insert the words italicised below. The current version of s 7(4) thus reads:

“If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant’s action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court this fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate.”

The subject matter, scope and purpose of s 7(4) of the Criminal Appeal Act

7. The principal matter in relation to which I differ from Button J concerns his Honour’s description of an application pursuant to s 7(4) as involving a “de novo determination about a question of fact”. It may be that the test, as applied by Button J at [280], is close in a practical sense to that which I prefer but I should explain my reasons for rejecting the label “de novo hearing” as a useful description of the statutory power granted by s 7(4).

8. In Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335, Basten JA (with whom Meagher JA agreed) explained that the term “de novo hearing” itself does not necessarily have a firm or precise meaning:

“[7] The only potential error identified was the reference by Culver DCJ to the appeals being by way of “de novo hearing to determine if the Crown can prove [the charges] beyond reasonable doubt.” In my view there is no error identified, let alone a jurisdictional error, in so describing the proceedings. There are many ways of categorising appeals. Often the labels attached do not have any firm or universal meaning. Frequently the labels are attached in order to distinguish some aspect of a particular appeal from an alternative which may have otherwise appeared to be available.

[8] In some circumstances, a “de novo hearing” is a phrase used to contrast the appeal in question with an appeal by way of rehearing. Frequently, as for example under s 75A of the Supreme Court Act, an appeal by way of rehearing involves an appeal based on the evidence in the court below, subject to the power of the appellate court to permit further evidence to be given in appropriate circumstances. It also indicates that the law to be applied will be the law in force at the time of the appeal, not at the time of the original trial. Those factors are reflected in s 18 of the Crimes (Appeal and Review) Act, which describes an appeal against conviction as being “by way of rehearing”.

[9] That is not the sole point of comparison. An appeal by way of rehearing under s 75A involves the appellant demonstrating to the satisfaction of the appeal court that there has either been a specific error on the part of the trial judge, or that there is reason for the appeal court to reach a different conclusion. However, the appeal from a conviction in the Local Court to a judge of the District Court is not an appeal of that kind: rather, the burden of establishing guilt beyond reasonable doubt remains throughout on the prosecutor. In that sense, the District Court proceedings may be contrasted with an appeal by way of rehearing under s 75A. It was in that sense that the trial judge used the term “de novo hearing”; the passage set out above identified on which party, and to what standard, the burden of proof lay on the appeal. There was no error in that description.”

9. In the present case I do not think it helpful to describe the statutory power in s 7(4) as giving rise to a “de novo hearing”.

10. It has long been settled in NSW that the power of the Court under s 7(4) (in the various forms it has taken) was not limited to cases where a new trial would be ordered under ss 6 and 8 of the Criminal Appeal Act 1912 (NSW): R v Jenkins (1963) 64 SR (NSW) 20. This point is made clear in the following passages from that decision. Per Herron CJ at (22-23):

“A question could arise under s 7(4) of the Act whether the verdict was perverse, that is to say was it unreasonable or one that cannot be supported having regard to the evidence. In this connection an unreasonable verdict means there was no evidence upon which reasonable men could find a verdict of guilty: Ross v The King; R v McCall. In the former case, in the joint judgment of Knox CJ, Gavan Duffy and Starke JJ, their Honours said: ‘If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone, and with their decision based on such evidence no court or judge has any right or power to interfere. It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroughly understood and always maintained’.

But the operation of s 7(4) is not confined to cases to which ss 6 and 8 apply. It can be applied, sparingly of course, in cases where it appears to this Court that the appellant was mentally ill within the meaning of the later Act. On this aspect I have had the advantage of reading the judgment about to be delivered by Walsh J, and I agree with it and with his reasons. ….”

…

11. Walsh J (with whom Ferguson J relevantly agreed) held at 29-31 :

“On the question whether this is a case in which this Court should exercise the power conferred upon it by s 7(4) of the Criminal Appeal Act of 1912, I wish to make some observations of a general kind as to that provision and then to make some references to the evidence in this case.

In its terms, the provision appears to me to confer a power to examine the evidence and to act upon this Court’s view of that evidence in appropriate cases. It is not merely a provision which can be applied in cases in which the Court, if no such provision existed, would think it proper to order a new trial under the provisions of ss 6 and 8. Although it is applicable in such cases, I think it can be applied also in cases in which the Court is not prepared to hold that, in accordance with the principles relating to the granting of new trials, the jury’s verdict was so perverse and unreasonable as to require it to be set aside. The jury’s verdict might not be unreasonable in that sense and yet the Court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order under s 7(4). The condition of the exercise of the power, as expressed in the subsection, is that it appears to the court that the accused was mentally ill.

But such cases as I have just described, as falling within the power conferred, will necessarily be of rare occurrence. For if the evidence, although strong in favour of the accused’s case, is yet such that a jury, acting reasonably, could fail to be satisfied that it was established, it will rarely happen that an appellate court, acting merely upon a transcript of evidence, will feel satisfied that a different view will be taken. The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself.

What I have endeavoured to state as being the proper view to take of the Court’s power is, I think, consistent with the course of authority in the English Court of Criminal Appeal in cases in which the similar provision in force has been discussed. I shall refer to some of these but before doing so it is proper to point out that they relate to convictions of murder to which the sentence of death applied. Whilst that circumstance has no bearing in theory upon the construction and application of the subsection, it has a practical effect in some of the cases in determining the decision of the Court. For in some cases the Court has expressly stated that the Home Secretary was in a better position than was the Court to examine the contentions put forward as to the insanity of the appellant and thus the Court has, in effect, left it to the Home Secretary to determine whether the sentence should be commuted. See R v Lumb; R v Loake; R v Jesshope. In R v Alexander the Court stated that if it thought the jury’s verdict was wrong the Court could set aside the verdict and make a special order but that it was only in very special cases that it would do so. The Court made such an order in R v Jefferson, not long after the Criminal Appeal Act, 1907 had been enacted. Speaking for the Court, Lawrance J said: ‘In the opinion of the Court this verdict was unsatisfactory, and ought not to stand. The Court has read the evidence of the doctors. There was very strong evidence before the Jury that this man at the time he committed the offence was not in a state of mind to make him responsible for his actions. No question has arisen here as to the direction in the summing up of the learned Judge. In the opinion of the Court the verdict of the jury ought to have been that the appellant was insane at the time that he committed this act.’

…

From the cases mentioned it appears that the Court has regarded itself as having the power and the duty to act upon its own view of the evidence, if it is a clear case. But it also appears from those cases that the Court will be slow to substitute its own view for that of a jury which has been properly directed. That this is so is clearly stated in the passages from the judgment of the Court in R v Matheson which have been stated by the Chief Justice in his judgment in this appeal. That case was concerned with the question of diminished responsibility, and not with a defence of insanity, but the observations as to the circumstances in which the Court would disturb the verdict of the jury are stated to be applicable in cases in which insanity is the defence.”

12. Jenkins has subsequently been described in this Court as the leading authority in NSW as to the scope of s 7(4): R v Derbin [2000] NSWCCA 361 per Mason P. Nothing that has been said subsequently, including in Da-Pra v R; R v Da-Pra [2014] NSWCCA 211, the most recent examination of the section by this Court, casts doubt on the central principles which emerge from Jenkins and Derbin.

13. The sole condition of the exercise of the power in s 7(4) is that it appears to this Court that the appellant was mentally ill at the time the appellant committed the act or made the omission charged. The provision thus confers a power to examine the evidence and to act upon this Court’s view of that evidence in appropriate cases. The operation of the provision is not limited to cases in which the Court finds error or would otherwise quash a conviction or order a new trial under other provisions of the Criminal Appeal Act. It is perhaps in this sense correct to describe the hearing as being “de novo” in that the appellant bears the onus of proving that he or she was mentally ill at the time he or she committed the act or made the omission charged.

14. On the other hand, the words used in the subsection, “If, on any appeal”, make it plain that the power to quash the conviction and sentence can only be invoked where there is an appeal before the Court. The section involves an appeal based on the evidence in the court below, subject to the power of this Court to permit further evidence to be given in appropriate cases. The power in s 7(4) thus bears some similarity to an appeal by way of rehearing. It is for this reason that the application of s 7(4) is subject to a principle of appellate restraint. This is because this Court is required to give effect to advantages enjoyed by the trier of fact. In the language of Walsh J in Jenkins, “The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself”. There is no reason in principle why appellate restraint should apply in any different way in a judge alone trial. There may be practical differences in the application of the principle of restraint occasioned by the fact that, unlike a jury, trial judges must give reasons. This principle of appellate restraint explains why it has often been said that cases falling within the power conferred will be of rare occurrence: Mizziv The Queen (1960) 105 CLR 659; [1960] HCA 77; Jenkins at 29; R v Weise [1969] VR 953; R vMatusevich [1976] VR 470 at 476; R v Anderson (1980) 2 A Crim R 379; [1981] VR 155 at 386; Da Pra at [104].

Application of principles in this case

15. I have myself considered all of the material before the primary judge and, in particular, have viewed the lengthy video ERISP and listened to the audio recording of the appellant at the time he was first arrested. This was exactly the same primary material as was available to the trial judge. The principle of appellant restraint I have described is of lesser importance in a case such as the present where this Court is able to view exactly the same evidence, presented in the same form, as the trial judge and no issues of credit arise (save perhaps from the video recorded ERISP).

15. Applying the principles identified in Jenkins and emphasised in subsequent authorities, I am persuaded to the relevant standard that the appellant was mentally ill, so as not to be responsible according to law.

16. This is for essentially the reasons given by Button J at [299]-[324]. The reasons of the trial judge for rejecting the special verdict are relatively brief. As his Honour explains, there are some factors tending against acceptance of the proposition that the appellant did not know that what he was doing was morally wrong. These include the theft of the knife, the hiding of that knife before the attack, the choice not to attack every person he saw and fleeing from the scene at the approach of the taxi driver who came to the victim’s aid.

17. On the other hand, as Button J points out, there is no doubt that at the time of the attack on the victim the appellant was suffering hallucinations and paranoid delusions. His plan to kill was based on a belief that unidentified “others” were accusing him of being a paedophile. Based on the uncontested evidence of the appellant’s mother, that belief was delusional. As to the evidence of planning (regarding the knife and other items purchased by the appellant), I do not regard it as indicative that the appellant knew what he was doing was morally wrong. In circumstances where the planning, such as it was, was closely related to the appellant’s paranoid delusions, the evidence is at best equivocal. The evidence of the appellant fleeing the scene and seeking to avoid the police is consistent with his delusional state and acting in the belief that unidentified “others” were accusing him of being a paedophile. It does not provide any sufficient reason to reject the expert psychiatric evidence.

18. I also take a different view to the trial judge about the responses given by the appellant when first questioned and when he was subjected to an ERISP which was recorded on video. They seem to me fairly clearly to demonstrate that the appellant was not aware that what he was doing was wrong. The appellant’s recounting of the horrific details of this terrible attack in the way that he does tells against a finding that the appellant appreciated that what he was doing was morally wrong in the sense explained by the High Court in Stapleton v The Queen (1952) 86 CLR 358.

19. Finally, and perhaps most importantly in this case, there is nothing about the appellant’s responses or the other evidence in the case that causes me to doubt the expert evidence led on behalf of the appellant and the Crown which was unanimous on this subject. I agree with Button J that each of Drs Westmore and Adams possess far more experience in the assessment of mental illness than even a very experienced judge. Of course, as the trier of fact, the trial judge was not bound by the joint expert opinion but his reasons for rejecting that evidence are not persuasive. In particular, there is nothing in the lengthy passages extracted by the trial judge of his examination of Dr Westmore which identifies any basis to doubt the diagnosis given by Dr Westmore, about which Dr Adams relevantly agreed.

20. This is a case where there were unchallenged unanimous opinions of psychiatrists supported by the assumptions they made and by the other available evidence. It follows that the orders proposed by Button J should be made. I also agree with Button J for the reasons he gives that ground 1 of the appeal should be dismissed.

21. SCHMIDT J: I have had the benefit of reading in draft both the judgments of Payne JA and Button J and like their Honours, have myself examined the evidence, including the video ERISP and the audio recording of the appellant on the night of his arrest, when he sought to escape police, after he had so seriously wounded his victim, in the bizarre circumstances explained by Button J.

22. I also agree with the orders which Button J proposes. Like their Honours, I have come to a different view to that which the primary judge reached about what the evidence established as to the appellant’s mental illness and his responsibility, according to law, for the actions which became the subject of the two charges of which he was convicted.

23. That conclusion accords with the opinions of both psychiatric experts, explained in the evidence which they gave at trial, which led to parties’ common position at trial, that there should be a verdict of not guilty on the grounds of mental illness entered. The primary judge did not accept that common position, for the reasons which his Honour gave.

24. In reaching my conclusion, I have approached the task which arises on this appeal under s 7(4) of the Criminal Appeal Act in a way which accords with the approaches of both Payne JA and Button J. That is because it does not seem to me that there is any real difference in the conclusions which their Honours have reached about the proper construction of this statutory task.

25. That is, that s 7(4) does not require error to be established on appeal, but rather directs that this Court itself consider the evidence, in order to determine whether the appellant has met the onus of establishing that he was mentally ill at the time of the commission of the offences, “so as not to be responsible, according to law”, for his actions. In that event the conviction may be quashed and the appellant ordered to be detained in strict custody in such place and such manner as the court thinks fit, until released by process of law.

26. The exercise s 7(4) requires does not involve a hearing de novo. Rather, the question of whether the conviction may be set aside must be decided on the evidence led at trial. In its consideration this Court is entitled to take into account that the trier of fact may have had the benefit of hearing oral evidence, including when conflicting opinions of experts arise to be resolved. But the Court must itself examine the evidence, in order to determine whether the appellant has met the onus which s 7(4) imposes.

27. In this case the trial judge did not accept the common opinions of the psychiatrists. Despite the advantage which his Honour had in having heard the evidence at trial, like Payne JA and Button J, I am also satisfied on my assessment of the evidence, that their opinions must be accepted. I, too, have concluded that not only was the appellant mentally ill when he committed the two offences, the nature of his illness was then of such a kind that he was “not to be responsible, according to law”, for his terrible actions.

28. It is not necessary to explain that conclusion further, agreeing as I do with the explanations which both Payne JA and Button J have given for the conclusions which they reached, about what the evidence established.

29. The order which the law requires be made in those circumstances, are thus those that Button J proposes.

30. BUTTON J:

Introduction

32. On 30 March 2016, in the District Court of New South Wales sitting at Lismore, Mr Thomas Joseph Carter (the applicant) was found guilty by Judge Bennett SC at the conclusion of a trial by judge alone of two counts on an indictment.

33. The first count averred wounding with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 25 years, and the offence has a standard non-parole period of 10 years.

34. The second count alleged a police pursuit, whereby the applicant knew, or ought reasonably to have known, or had reasonable grounds to suspect, that police officers were in pursuit of a vehicle that was required to stop. That count went on to allege that he did not stop, and then drove recklessly or at a speed or manner dangerous to others. That offence was contrary to s 51B(1) of the Crimes Act. The maximum penalty is imprisonment for three years for a first offence.

35. At trial, the Crown prosecutor and defence counsel were agreed with regard to the verdicts that should be returned: not guilty on the grounds of mental illness, the special verdict available pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act).

36. That joint position was adopted because, on the one hand, there was no dispute on the part of defence counsel that the applicant had physically performed the acts underpinning the two offences alleged by the Crown. On the other hand, it was also because each party tendered a report from an experienced and well-qualified forensic psychiatrist expressing the opinion on the balance of probabilities that, at the time of the commission of those physical acts, the applicant was suffering from a defect of reason arising from a disease of the mind that had the effect that, although he appreciated the nature and quality of his acts, and although he may have appreciated the legal wrongfulness of his actions, the applicant did not appreciate that they were morally wrong: see generally R v M’Naghten (1843) 10 Cl & Fin 200; 8 ER 718, as illuminated in R v Porter [1933] HCA 1; (1933) 55 CLR 182, and Stapleton v R [1952] HCA 56; (1952) 86 CLR 358.

37. His Honour rejected that unanimous expert opinion and that joint position of the parties, and explained why in reasons for verdict delivered on 23 June 2016.

38. In a nutshell, a detailed analysis of the undisputed evidence about the actions and circumstances of the applicant led his Honour to fail to be satisfied, on the balance of probabilities, that the defence underpinning the special verdict had been made out.

39. In particular, although satisfied of many elements of the defence, his Honour was not satisfied that the applicant did not appreciate that his actions were morally wrong. To remove matters of onus from that statement for a moment in aid of comprehension, the finding of his Honour was that the applicant did indeed appreciate the moral wrongfulness of what he was doing at the time he did it.

40. On 18 November 2016, after entering convictions against the applicant, his Honour sentenced the applicant to an aggregate head sentence of imprisonment for 20 years 6 months, with a non-parole period of 12 years. An indicative head sentence of imprisonment for 20 years, with a non-parole period of 12 years, was provided for the first count, and an indicative head sentence of 1 year 4 months was provided for the second count.

41. The applicant has sought leave to appeal against conviction on two grounds, and, as against the possibility of failure in that regard, leave to appeal against sentence on three grounds.

Brief sketch of the objective facts

42. It is convenient at this stage to set out a broad overview of the objective aspects of the matter, although it will be necessary to return to them, along with evidence about the mental state of the applicant at the relevant time, in much more detail later. The following is derived from the remarks on sentence of his Honour.

43. On the evening of Friday 21 November 2014, the victim, a young woman then 17 years of age, attended a party in South Lismore, in the Northern Rivers region of New South Wales. She left the party shortly before 1.15 am on Saturday 22 November 2014, and commenced to walk home.

44. As she did so, she saw the applicant’s car, and then saw him alight from the vehicle alone. The applicant, a young man then aged 22 years, ran towards her. The victim began screaming and ran away from the applicant. He caught up to her, and stabbed her repeatedly with a very sharp filleting knife, while she was trying to push him away.

45. When a taxi approached the two of them, the applicant retreated to his car. The taxi driver had observed the victim being chased by the applicant, and saw what he believed to be punches inflicted to the victim’s upper body; those punches were in fact the applicant repeatedly stabbing the victim. The victim was able to enter the taxi and told the driver that she had been stabbed. He drove to a nearby unattended ambulance station, calling for assistance en route. At the ambulance station, police officers arrived, promptly took control of the taxi, and drove it directly to a hospital.

46. A partial registration number and description of the applicant’s car was broadcast over the local police radio network. The applicant was seen by police driving away from Lismore in the direction of the nearby town of Casino. The police pursued his vehicle, which was seen to drive on the incorrect side of the road and at high speeds.

47. Eventually, with a police vehicle close behind, the applicant’s vehicle hit a roundabout and struck a rock garden wall that I understand to be in the middle of it. The car became airborne and on subsequent impact with the roadway a fire ignited beneath it.

48. The applicant abandoned the vehicle and ran into a private property. Police pursued him on foot. The applicant’s escape was blocked by fencing. Police approached, drew a Taser, and arrested and handcuffed him.

49. As the applicant was being taken to the police truck, he said “Just shoot me, shoot me now”, and when he was told he was under arrest he said “Yeah, kill me now” (these and all subsequent quotations in this judgment are verbatim). The applicant, when asked whether he had stabbed someone in Lismore replied “Yeah, a girl”. He confirmed that he did not know the victim, and could not provide any explanation as to why he did not stop driving.

50. In the car that had been driven by the applicant, police located the knife used to stab the victim, along with a second filleting knife with a length of almost nine centimetres, and a serrated steak knife.

51. In a recorded interview with police later that morning, the applicant disclosed that a hammer would also be found beneath the front seat of his car. He also said that he knew the reason for his arrest; admitted that he was looking for someone to kill that evening; admitted that he had tried to kill “some girl” he had spotted; and said that he did not know her. He admitted that he had stabbed her “a couple of times”, intending to kill her, and had aimed at her heart, lungs, and throat. He attributed the decision to kill to his “brain”. He asserted that he had tried to kill himself in the car, and that he wanted to “take down” as many people as he could. He blithely explained to the police that he had been driving around the Northern Rivers region that evening with the intention of killing “as many people as I can and then off myself.”

52. The victim suffered severe and extensive injuries, including a laceration to the temporal lobe of her brain. The simple fact is that she came very close to dying as a result of the acts of the applicant. Graphic photographs tendered in the trial and placed before us on the appeal show the numerous gaping wounds that the applicant inflicted upon the victim with the filleting knife.

Grounds of appeal against conviction and sentence

53. The following grounds of appeal against conviction were notified and pressed:

1. The trial miscarried in that the trial judge failed to address the evidence of Dr Westmore and Dr Adams as to the appellant’s demeanour during his ERISP interview as showing that the appellant did not know “the wrongness of his actions”.

2. This Court should determine that the appellant was mentally ill at the time of the offences in accordance with section 7(4) Criminal Appeal Act 1912.

54. The following grounds of appeal against sentence were notified and pressed:

1. The aggregate sentence of 20 years 6 months was disproportionate to the objective seriousness of the offences.

2. The trial judge erred in failing to impose a lesser penalty in relation to the appellant’s facilitation of the administration of justice.

3. The aggregate sentence imposed was manifestly excessive.

More detailed discussion of evidence before the court at trial

55. Whatever is to be the precise characterisation of the nature of the process of review called for by ground 2 of the appeal against conviction (a topic to which I shall return later in this judgment), it necessitates a very close analysis of the evidence placed before the trial judge. In undertaking that analysis, I shall focus in particular upon the evidence that argued for and against the proposition that the applicant, at the time of the commission of the physical elements of the two offences, was not guilty on the ground of mental illness.

56. The majority of the evidence at trial was in documentary form, by way of police statements, without cross-examination of the maker of the statement. A recorded interview between detectives and the applicant was also tendered, as were a number of photographs showing the injuries to the victim. Each party tendered a report from a psychiatrist that it had retained: Dr Adams for the Crown, and Dr Westmore for the applicant. Dr Westmore was the only witness of either party who gave oral evidence in the trial.

57. Turning first to the documentary evidence placed before his Honour, and summarising it in the order in which it appears within the folder of documents that constitutes Exhibit 1, they included a Crown case statement. But because that document is merely a secondary summary of the other evidence, I shall not pause to summarise it here.

Statement of Mr Fuller

58. In his statement of 22 November 2014, Mr Fuller, the taxi driver, spoke of the events of early hours of that morning.

59. At about 1.15 am, he was driving his taxi in Lismore when he observed “a female running across the road with a male chasing her”. Mr Fuller slowed his vehicle. He saw that the female was bleeding from the mouth, and saw her trip and fall onto the median strip. The male caught up to her, and stood over the top of her. Mr Fuller believed that he saw the male punch the female at least four times to the upper body area.

60. Mr Fuller had completely stopped his vehicle, and opened the door to get out. At about the same time, the male left the female and jogged back in the direction from which he had appeared. He saw the male jog towards a white coloured vehicle that was parked on a street that intersected with the street upon which Mr Fuller had originally seen the two persons running. That vehicle was parked about 20 metres from that intersection.

61. The female entered the vehicle of Mr Fuller. He quickly realised that she had been stabbed. He performed a U-turn in his taxi, saw the white vehicle again, and noted its registration number. He saw the man whom he had seen before now seated in the driver’s seat of that vehicle. A short time later, whilst driving, Mr Fuller saw the white vehicle in his rear view mirror. He could not tell which way the white vehicle ended up travelling.

62. Eventually, as I have said, through the efforts of Mr Fuller and police, the life of the victim was saved; the details about that in his statement do not need to be summarised here.

63. Mr Fuller went onto provide a description of the male; there was no dispute at the trial, of course, that he was the applicant.

Statement of Constable Papworth

64. By way of a statement of 15 December 2014, Constable Papworth gave evidence that he was part of a team of police operating a caged truck that evening.

65. At about 1.20 am on Saturday, 22 November 2014, Constable Papworth and his partner received a message over police radio. They travelled immediately to the ambulance station in Lismore. There they saw Mr Fuller, his taxi, and the victim. She was completely covered with blood, appeared to be slightly convulsing, and her breath was laboured and “gurgled”.

66. Constable Papworth was given the task of locating a crime scene. He left the ambulance station and went to a location near Lismore City Hall. At about 1.35 am, a male waved at him. That male told the police officer “I woke up to a lady screaming fuck off fuck off. I looked out my [window] saw a male trying to grab a female. She ran over the road and he ran off and got in a car. She dropped something ran back to get it and flagged down a taxi.” The speaker was not able to describe the applicant, except to say he had “dark hair”.

67. Constable Papworth spoke of the fact that, subsequently, photographs were taken of the injuries to the victim.

Statement of Constable Ellis

68. By way of a statement of 1 January 2015, Constable Ellis gave evidence of her observations of the evening of Friday 21 November and the morning of Saturday 22 November 2014. She was then working in a fully marked police vehicle with a partner.

69. At about 1.20 am, the phone call was received from the taxi driver. Constable Ellis and her partner ran from Lismore police station and proceeded urgently to the ambulance station. She saw the taxi of Mr Fuller to be “covered in blood” with what appeared to be “blood hand marks smeared all over” various exterior locations of the taxi. She observed the victim in the taxi’s back seat, which was also covered in blood.

70. Later, with other police, Constable Ellis searched a grassed area near Lismore City Hall looking for weapons or other evidence.

71. Later again, she found a pool of blood, from which there was a blood trail that extended quite some distance over a road in Lismore.

Statement of Senior Constable Hayes

72. Senior Constable Hayes was the partner of Constable Ellis. His statement is dated 24 November 2014. He described receiving a message over police radio at 1.23 am on the Saturday.

73. At the ambulance station, he saw the taxi to be “covered in blood which was smeared up [on] both side[s]”. He also saw that the victim was “covered in blood and what appeared to be stab wounds to her head and upper torso. I observed that she was choking on the blood and struggling to breathe.” He drove the victim to hospital at a very high speed. Before she passed out, the police officer asked her “[d]o you know who did this to you?” She replied “[n]o, it was a bloke, he chased me, I could not get away.”

74. At the hospital, Senior Constable Hayes noted that the victim had “several lacerations to her head, face, breast and upper torso”. Later, doctors informed the Senior Constable that the victim had lost something in the order of three litres of blood, and was minutes from death when she arrived at the hospital.

Statement of Detective Sergeant Ewing

75. Detective Sergeant Ewing made a statement on 10 December 2014. He gave evidence of receiving a phone call at about 2 am on 22 November to the effect that “a young girl had been stabbed multiple times outside the City Hall”. He was informed a little later that a male person had been arrested “after a police pursuit in Casino”.

76. At about 3.15 am, at Centre Street Casino, Detective Ewing saw a white Daihatsu Charade in the middle of the road; there was no dispute at trial that that was the vehicle that the applicant had been driving.

77. At about 3.30 the same morning, the detective saw the applicant in the dock at Casino Police Station wearing white forensic overalls.

78. At about 4.52 am, the detective commenced to interview the applicant. That interview concluded at 5.45 am. Later, the applicant was charged, and later again forensic procedures were conducted upon him.

Statement of Senior Constable Paine

79. The statement of Senior Constable Paine is dated 25 November 2014. He spoke of hearing the radio broadcast at 1.23 am on 22 November. He was seemingly the first police officer to arrive at the ambulance station. Mr Fuller said to him “[s]he’s in the backseat. He was stabbing her.” Senior Constable Paine saw that the taxi was “covered in blood”. Seated on the backseat of the taxi was the victim; she appeared lifeless. She was driven to hospital with great urgency.

80. At about 3.40 am, the police officer engaged in an interview with the victim that was audio and video recorded.

Statement of Senior Constable Reddell

81. The statement of Senior Constable Reddell was made on 25 November 2014. At about 1.40 am on 22 November, he was driving a marked police sedan along a street in Casino. He saw the white Daihatsu Charade that was being driven by the applicant. Having heard a bulletin about the stabbing and the associated vehicle, Senior Constable Reddell performed a U-turn, and commenced to come up behind the Daihatsu. It appeared to speed up. The Senior Constable activated all warning devices, but the applicant made no attempt to stop. Instead, he accelerated, and a pursuit was initiated by police. The Daihatsu drove at an estimated speed of about 100 kilometres per hour through a roundabout, with the result that the vehicle moved around on the roadway. It continued at a speed estimated to be about 100 kilometres an hour.

82. As the Daihatsu approached another roundabout, the applicant made no effort to slow down, or indeed negotiate the roundabout itself. Instead, the Daihatsu collided with the wall of a rock garden (as I understand it, in the middle of the roundabout itself), with the result that it launched over the garden, rising off the roadway by about a metre. It then landed heavily on the other side of the roundabout. The result of that impact was an explosion of fire from underneath the Daihatsu.

83. The Daihatsu continued for about 100 metres up from the roundabout. Oil on the road (no doubt from the damaged Daihatsu) interfered with the traction of the pursuing police vehicle. The Daihatsu “now believed to be engulfed by fire” crossed the centre line, appeared to slide on oil, and then came to a stop.

84. The applicant opened the driver’s side door, and ran towards a private yard. Senior Constable Reddell’s partner exited the police vehicle and gave chase on foot. Senior Constable Reddell kept driving, and followed the applicant, who ran into a backyard. The applicant ended up being literally cornered in part of the yard, and was unable to go further. He was surrounded by the police vehicle and the police officer on foot, who drew and activated his Taser. The applicant was arrested, with his hands handcuffed to his rear.

85. The witness asked the applicant his name, and he replied truthfully and correctly “Joseph Carter”. As he was being walked back to the police vehicle, the applicant said “Just shoot me, shoot me now.”

86. The following conversation took place with the applicant in the back of the police truck:

“I said, “What’s your name mate?”

He said, “Joseph CARTER.”

I said, “You’re under arrest for the stabbing in Lismore and also for the pursuit. Do you understand that?

He said, “Yeah.”

I said, “Mate you’re not obliged to say or do anything, but anything you do say or do, will be recorded and may later be used as evidence, Do you understand that?”

He said, “Yeah, kill me now.”

I said, “Mate, won’t be doing that, why didn’t you stop?”

He said, “I’ve been driving around Byron and Lismore all night.”

I said, “Did you just stab someone in Lismore.”

He said, “Yeah a girl.”

I said, “What for did you know her?”

He said, “No.”

I said, “You could have killed yourself then, or someone else, why didn’t you stop?”

He said, “Just didn’t.”

I said, “Well it was just stupid, what you have done putting lives at risk.”

87. Later, Senior Constable Reddell returned to the Daihatsu, and saw some items that had been removed from it by another police officer. The witness observed “a large, what appeared to be a filleting knife, with what appeared to be blood on the blade. I also saw another knife, a hammer, and garden shears.”

Statement of Senior Constable O’Rourke

88. Senior Constable O’Rourke, the partner of Senior Constable Reddell, provided a statement on 29 November 2014. He spoke of the radio message of 1.27 am. He described the commencement of the pursuit in a way consistent with that of the previous witness.

89. By comparing the speedometer of the police vehicle and its distance from the Daihatsu during the pursuit, the witness estimated that the vehicle driven by the applicant was travelling between 105 and 110 kilometres per hour.

90. He described the Daihatsu, as it drove onto the embankment of the roundabout, launching into the air, and becoming alight when it hit the road on the other side. He described the vehicle coming to a stop about 100 metres past that impact, the driver alighting from the vehicle and running into a private property, and his pursuit on foot, over approximately 60 metres. Senior Constable O’Rourke drew and armed his Taser. Eventually the police officer confronted the applicant, and said “Get on the ground”. The applicant stopped, put his arms in the air behind his head, got on the ground face first, and was handcuffed.

91. Later, at 2.31 am, the witness administered a blood alcohol concentration breath test to the applicant whilst he was in the rear of the caged truck, with negative result.

Statement of Senior Constable Hudson

92. Senior Constable Hudson gave a statement on 23 November 2014. On the morning in question, he was partnered with Senior Constable Vaughan in a caged police vehicle.

93. At about 1.40 am he was driving in Casino behind the sedan containing Senior Constable Reddell and Senior Constable O’Rourke. Senior Constable Hudson observed the Daihatsu travelling at a speed well above the speed limit. His vehicle also performed a U-turn, in order to follow the Daihatsu.

94. The witness observed the Daihatsu increase its speed; he also saw it “completely cut through the round-a-bout”, rather than abiding by its circle. Although at least one police vehicle had warning lights and sirens activated, the Daihatsu did not slow down or stop. He estimated the speed of the Daihatsu to be in excess of 100 kilometres per hour. The estimate of the witness was that, at the second described roundabout, the Daihatsu became airborne to an extent of approximately 10 feet in the air, followed by “a large flash of fire”.

95. The next relevant thing observed by the witness was the applicant in the custody of Senior Constables O’Rourke and Reddell. He recognised the applicant as someone with whom he had interacted with regard to driving matters earlier that day (that is, on 21 November). He retrieved from the Daihatsu the following items: a men’s wallet containing cards in the name of the applicant and approximately $280 in cash; one pair of pruning shears; one filleting knife with a black handle and a bloodstained blade; empty packaging for a fish filleting knife; and one black handled serrated steak knife.

96. The witness opened the rear door of the caged truck and spoke to the applicant. He could see that the clothes of the applicant were dishevelled, “he smelt strongly of bad body odour and he was sweating profusely”. The following conversation occurred between the two of them:

“I said, ‘Hi I’m Senior Constable Matthew HUDSON from Casino Police. Are you Tahli CARTERS brother?’

He said, “Yeah you gave me tickets a couple of months ago for not having my P’s on my car. You were pretty good about it too’

I said, ‘What’s your name?’

He said, ‘Joseph CARTER’

I said, ‘Joseph do you mind if I ask you a few quick questions about why you’re sitting in the back of this truck right here tonight?’

He said, ‘Yeah ok’

I said, ‘Joseph I just want you to clearly understand that you don’t have to say or do anything unless you wish to do so. Do you understand that?’

He said, ‘Yeah I know’

I said, ‘Anything you say or do will be recorded and this may later be used in evidence. Do you understand that?’

He said, ‘Yes’

I said, ‘I’d like to record the questions I ask and the answers you give on this voice recording application. Is that ok with you?’

He said, ‘Yeah fine’”

97. Thereafter, further conversation was audio recorded. The witness gave evidence that the recording is seven minutes and ten seconds in length. He also said that “Throughout the interview [the applicant] was seated in the rear cage of a Police vehicle with his hands handcuffed behind his back. The [applicant] stared straight ahead for the duration of the interview and his face remained emotionless”.

98. During that interview, the applicant spoke of a further item to be found in the Daihatsu. Based upon that, the witness retrieved the hammer from under the front seat of the Daihatsu.

99. Back at Casino Police Station, the following conversation took place between the applicant and Sergeant Underhill:

“Sergeant UNDERHILL said, ‘Joe we are going to search you. Do you have any sharps or anything that may hurt us on you?’

The [applicant] said, ‘I had a knife but it was in the car’

Sergeant UNDERHILL said, ‘Do you have anything on you at the moment?’

The [applicant] said, ‘No’”

100. The applicant was divested of his clothes and was provided with a disposable forensics suit.

101. Later, the witness assisted the detective during the recorded interview of the applicant. Later again, the witness attended to the various exhibits that had been seized.

102. During the interview of seven minutes’ duration between Senior Constable Hudson and the applicant near the location of his arrest, and which commenced at 1.55 am, the applicant correctly provided his name, provided his date of birth, and said his driver’s licence was in the Daihatsu. The following conversation took place (extracted verbatim from the transcript placed before the trial judge):

“SC HUDSON: My name is Senior Constable HUDSON from the Casino Police Station. The time is 1:55am today is the 22nd November 2014. We are presently standing in Centre Street CASINO.

M: INAUDIBLE – I can’t hear

SC HUDSON: Ok I’ll talk up for you though. I am currently standing with.. What’s your name?

M: Joe CARTER. Joseph. My drivers licence is in the car.

SC HUDSON: Your drivers licence is in that car? Can you tell me your date of birth Joseph?

M: 18th of the 9th 92

SC HUDSON: Yep. Were you arrested a short time ago by Police and placed in handcuffs? Were you arrested before?

M: Oh yeah

SC: I’m going to ask you some questions and I just want you to understand that you don’t have [to] say or do anything unless you wish to do so. Anything you say or do is being recorded and may later be used in evidence. Do you understand that?

M: Yep

SC HUDSON: Can you tell me why you were arrested tonight?

M: I was driving around to different towns to hunt people down to kill and kill as many people as I can and then off myself

SC HUDSON: You say. So you say you have been driving to as many towns as you can to get people to kill people?

M: Yeah

SC HUDSON: Can you tell me what you mean by that?

M: I used a knife, a hammer and the ahh pruners to ahh try and kill as many people as I can

SC HUDSON: Have you killed anyone tonight Joseph?

M: I tried to

SC HUDSON: You tried to?

M: I am not sure how it went

SC HUDSON: Your not sure how it went?

M: No

SC HUDSON: Who did you try and kill?

M: Some girl

SC HUDSON: Do you know who she was?

M: Don’t know just spotted her

SC HUDSON: Ok

M: I stabbed her a couple of times

SC HUDSON: You stabbed her a couple of times?

M: Yeah

SC HUDSON: You don’t know where?

M: Yeah

SC HUDSON: What were you intending to do when you stabbed her?

M: Kill her

SC HUDSON: You wanted to kill her?

M: Yeah and then

SC HUDSON: Did you know this girl?

M: No

SC HUDSON: Why did you want to kill this girl?

M: I wanted to kill as many people as I can and then myself

SC HUDSON: Is there any particular reason why you would do that?

M: Because I’m a loser

SC HUDSON: You’re a loser?

M: Yeah

SC HUDSON: And you didn’t know the girl that you tried to kill tonight?

M: No

SC HUDSON: Can you tell me whereabouts on her body that you tried to stab her?

M: I was kind of aiming for the heart, lungs and throat

SC HUDSON: The heart, lungs and the throat is that what you mean?

M: Yeah

SC HUDSON: You didn’t know this girl tonight?

M: No

SC HUDSON: Is there anyone else that you’ve tried to stab and kill tonight Joseph?

M: No but I was trying to find people

SC HUDSON: What about prior to this night. Is there anyone that you’ve attempted to kill or killed?

M: No

SC HUDSON: And was it your clear intention tonight to kill that girl?

M: To kill anyone

SC HUDSON: To kill anyone. When you stabbed the girl with the knife, was it your clear intention to kill her?

M: Yeah

SC HUDSON: Can you tell me if your under the influence of any illegal drugs right now?

M: No

SC HUDSON: Can you tell me if your under the influence of any alcohol right now?

M: No I don’t drink or do drugs

SC HUDSON: You don’t drink or do drugs. Theres nothing that would be affecting your decision making tonight?

M: My brain

SC HUDSON: Your brain. Alright. Can you tell me what your movements were immediately after you stabbed this girl, where did this happen?

M: Over the bridge at Lismore.

SC HUDSON: Can you tell me exactly what your movements were immediately after you stabbed the girl?

M: I saw a cab driver driving away. Got in my car. I drove to Spring Grove Way and drove here

SC HUDSON: You came to Casino via Spring Grove Way? & your saying that you saw a taxi cab turn up after you stabbed her?

M: Yeah

SC HUDSON: I’m just going to tell you that I searched your vehicle just then, and I located two (2) knifes [sic; knives], a packet for a knife and some pruners.

M: There should be a hammer under seat too.

SC HUDSON: Under the seat too. Alright, some packaging that I found. Did you buy that today?

M: Yeah

SC HUDSON: What time did you buy it?

M: I don’t know after 12

SC HUDSON: At 12pm. Ok so at what point today was it your intention to kill someone tonight? At that point when you purchased the knife or was it after that?

M: About 7 o’clock

SC HUDSON: About 7pm?

M: No

SC HUDSON: Its after 1am now. Its almost 2am now

M: 9pm last night

SC HUDSON: Was that when it was your clear intention to do this?

M: I went to Ballina, Alstonville, Wolongbar, Lismore, Goonelabah, Byron Bay

SC HUDSON: You drove around all those places?

M: Yeah

SC HUDSON: What were you doing when you were driving around all those places?

M: What do you mean?

SC HUDSON: What were you doing when you were driving around all those places? What were you looking for?

M: People alone

SC HUDSON: People alone?

M: Yeah

SC HUDSON: You wanted to find a person who was on their own? What did you want to do to that person when you found them that was on their own?

M: Kill them

SC HUDSON: Ok

M: You should have shot me

SC HUDSON: We should have stopped you?

M: You should have shot me

SC HUDSON: I’m now going to suspend this. Can you tell me something first Joseph? Has this interview been made of your own free will?

M: Yeah

SC HUDSON: Were you threatened in any way or induced to give the answers you have given me?

M: Sorry?

SC HUDSON: Were you threatened in any way to give the answers you have given me?

M: Nah youse are good mate

SC HUDSON: We’re good blokes? Ok I am not [sic; now] going to suspend this recording ok?

M: You didn’t ask me about the car

SC HUDSON: That car?

M: Yeah I tried to kill myself in that car

SC HUDSON: You tried to kill yourself in that car right there?

M: Yeah

SC HUDSON: Was that as the result of the Police pursuing you?

M: I just wanted to take as many people down as I could. I tried to kill myself

SC HUDSON: I’m now going to suspend this recording ok Joseph”

103. I have listened to the audio recording of which the above is a transcript more than once in Chambers. My notes of my impression of the affect of the applicant during that brief interview are as follows:

“Flat; open; clear; cheerful; speaking quickly; cheery, with slight upward inflection; upbeat.”

Recorded interview with victim

104. An interview with the victim commenced at 3.51 am at the hospital. She described walking home from the house of a friend and seeing a parked car, from which a male alighted. She began to walk in the opposite direction, and the male “just seemed, I saw him just start bolting at me, like running and I started running and screaming and then I saw him have a knife in his hand and then he catched up to me and there was a car coming so I was kind of trying to get to that car and then he grabbed me and he started stabbing me and um, and then the, the cab came. I can’t remember what happened then but then, he, he ran away because I think the car come and then, I don’t know how I got in the car, but I got in the car.”

105. Later, she described the applicant as looking “pretty shaggy”. She believed that the applicant may have grabbed her neck. Although she believed that the applicant may have said something whilst he was stabbing her, she could not recall what it was.

Medical reports

106. A report from a doctor from the Emergency Department at Lismore Base Hospital detailed the injuries to the victim. She had suffered many knife wounds, including a laceration to the left temporal region of the head, which penetrated sufficiently to cause a laceration to the brain; a deep laceration to the left of her chest; two lacerations to the back; three deep and extensive lacerations to the right arm; a laceration over the outer part of the shoulder; a laceration to her lip and tongue; and two small superficial lacerations to the left wrist.

106. A further medical report from another doctor spoke of “minimally displaced left temporal skull fracture”. Later, a previously unidentified penetrating injury to her sinus was also discovered.

ERISP with applicant

108. As I have said, the applicant engaged in a formal interview at Casino Police Station with Detective Ewing in the presence of Senior Constable Hudson. The applicant’s mother was also present.

109. The interview began at 4.52 am. The applicant was quite capable of answering questions rationally and directly. He was able to agree with the overview of events leading up to the interview provided by the detective. At times, he was able to dispute the layout of the parts of Casino in which the pursuit and subsequent arrest took place.

110. He said that he had “looked in the rear view mirror, and I saw the sirens flashing and then I just took off”. He said that he had “just tried to evade”. As for the impact with the roundabout, he said “I was trying to not brake too much and make the corner”.

111. As his Honour did, I have watched the recorded interview in Chambers. I shall intersperse my summary of what the applicant said with my notes of how he said it.

112. I have noted that, during this first phase of the interview summarised above, the affect of the applicant was flat; he was staring, at one stage he shrugged; he showed no emotion; and he was able to be focused and clear about the questions he was being asked.

113. He agreed that he was interviewed by police at the scene of his arrest, but could not recall the details of that conversation. When they were put to him from police notes, he agreed with them. In doing so, my note is that he was “totally calm”.

114. When it was put to him that he had spoken of driving to as many towns as he could in order to kill people, he agreed that he had responded in the affirmative. My note is that he betrayed no emotional reaction in that agreement, despite the presence of his mother.

115. When he was asked whether he had informed the police at the scene of his arrest that he had tried to kill a person that night, he agreed that he had said so, and his affect was totally flat in that agreement. Generally, during this phase of the interview, he provided quick answers in a flat way.

116. He agreed with the detective that, at the scene, the detective had said “[y]ou don’t drink or do drugs. There’s nothing that would be affecting your decision-making tonight”, and he had replied “[m]y brain.” At the time of his agreement to that earlier exchange in the formal interview, he showed no emotional reaction.

117. In the formal interview, he told police that he would have first left home that evening after 9 pm. He travelled first to Lismore, and thereafter was trying to head up to Brisbane, but got lost in the vicinity of Byron Bay. He described driving around “looking for people…just anyone alone.” At the time of saying those things, his affect was very flat.

118. He described ending up in Ballina. He was asked “what were you going when you, if you did find someone in Ballina [sic]?” and answered “[t]ry to kill them.” I have noted that that answer was flat and quick.

119. As for the items in the car, he claimed that one of the knives was part of a plan to go fishing earlier that day, and there was also a pruning knife that was for tomatoes. When asked “[a]nd were you going to use those items to harm people?” he answered “I don’t know”.

120. He accepted that, if he had found “someone to hurt” he would have used the black handled filleting knife. He described having stolen it from his father’s shed, just before he had left on the evening. He explained that he stole it “[t]o um, kill people.”

121. He explained that at one stage he had stopped at a service station in Lismore before travelling to Byron Bay. He described a person of possibly Indian ethnicity as working in the service station. He said that, during his driving that evening, he remained at or under the speed limit.

122. He explained that he simply drove through the town of Ballina, and kept going once he was unable to find anyone. He denied keeping track of time, and said that he had turned off his phone. He was asked:

“Q234.   O.K. And while you were driving through these towns, were you still looking for people?

A      Yep.

Q235.      And for, for what reason?

A      To kill.

Q. 236.   To kill them? O.K. And you didn’t have any particular reason for doing it or - - -

A   (NO AUDIBLE RESPONSE)

Q. 237.   You just wanted to kill them?

A   Yeah.”

123. At the time of giving those answers, my note is that he was “totally flat”, and at one stage shrugged.

124. He said that, in Lismore “I was about to give up and just head home and then I spotted the girl and yeah.” Later he said, “[w]ent back to round the roundabout and pulled up and then got out with the knife hid it behind my…she ran off and then yeah”. “I stabbed her a couple of times and saw the cab driver coming back and yeah”. My note is that, in giving the latter answer, he was flat.

125. At one stage of the interview in which he was being asked about his attempt to implement a plan to commit mass murder, he complained about the itchiness of the forensic overalls he was wearing, and asked whether they “get washed”.

126. He readily drew a diagram of the location of the attack. Later, he said “[s]he stopped walking, so I got out of the car with the knife, hid it and then I just started running at her. She tried running away. And I got her”. He agreed that he had parked his car “[s]omewhere in another street”.

127. He described in detail the process of the infliction of repeated stab wounds to the victim. When asked about the location of the wounds he said “[o]ne of them was the gut, I think. The rest of them I’m not really sure.” He agreed that he had been aiming for the “vital organs”. He also agreed that it was his intention to kill her. When asked why, he responded with a small shrug. His recollection was that he had said nothing to the victim. During the entirety of his description of these events in the recorded interview, my note is that he was flat and calm.

128. He was asked “after you finished stabbing her, right, what did you do?” He replied “I noticed the cab driver pulling in, so I ran back to the car.” He agreed that after returning to his vehicle, he “sped off” in the direction of Casino.

129. He described his state of mind at that stage as “I thought she was alive, because I didn’t, didn’t think I hit any of her vital organs so, she should have been right.…Oh, I thought I got her once in the gut, but I think it was pretty low so, she should have been right. Plus there was no blood on the blade and that, so it mustn’t have…penetrated that much, I don’t think.” My note is that during that answer, the presentation of the applicant was flat.

130. He was asked about his thoughts and feelings after the attack, and whilst he was driving towards Casino from Lismore. His responses were that he was not thinking anything, he was “just driving”; he “[d]idn’t feel anything, just like before that”; he was “just sort of numb the entire day”, and had “no feelings”; he “didn’t care” whether the victim lived or died; and, if he had happened to have come across other people on his journey, he did not know whether he would have cared about those people.

131. Although he had never “done this before”, in answer to the question of whether he had ever had these kinds of thoughts before, the applicant replied “[y]ep”.

132. He spoke of the “schizophrenia medication which I was supposed to be taking”, but said that the last time he had taken that was “[m]onths ago”.

133. When he spoke of having been diagnosed with schizophrenia, his mother clarified that that would have been in 2012 or 2013.

134. The applicant claimed not to have been receiving treatment from a local psychiatrist in Casino or Lismore, and spoke of “real bad anxiety and that. I have trouble leaving the house”.

135. Later, he confirmed that his intention was to kill a person, and thereafter kill himself. When asked how he would achieve the latter, he responded “[b]y any means”. My note is that, at the time the applicant said that, his affect was totally flat.

136. Towards the conclusion of the interview, the detective prepared to leave in order to obtain an adopting officer. He reminded the applicant that the recording device was still operating. The applicant responded “[y]eah, when are you getting the ah, forensic stuff done?”

137. The applicant continued to make inquiries about “the forensics”. My note is that at that stage, the applicant had his head in his hand, and was staring into the distance.

138. The interview concluded by way of the usual adoption questions, and ended at 5.44 am.

Photographs of injuries to the victim

139. The next documents tendered in evidence were photographs of the victim shortly after the attack. As I have said, they show a number of gaping wounds to her body, and any layperson can see that she had suffered injuries of the gravest kind.

Absence of criminal record of the applicant

140. The printout of criminal convictions of the applicant was placed before his Honour. It showed that he had been born in September 1992, that he lived at an address in Casino, and that, as at 29 July 2015, he had no criminal record.

Photograph of knife

141. A photograph of a knife was also placed before the trial judge.

First report of Dr Westmore

142. The applicant tendered the first report of Dr Westmore of 14 April 2015.

143. The forensic psychiatrist noted the following aspects of the matter.

144. The applicant told him that, at the time of the attack, he was unemployed, receiving a Newstart Allowance, and trying to “get on the pension”. He was living with his parents and two brothers, along with some nieces and nephews, in Casino.

145. The applicant spoke of “being hounded for a couple of years over rumours that I was a paedophile. I was getting threatened (about) getting bashed, death threats. I was having trouble leaving the house and, on the night, I ended up attacking a chick”.

146. The applicant went on to say that he had been driving around and “I tried to kill someone. I saw this chick and I thought that she was the same chick that was taunting me that afternoon. I ended up attacking her at one o’clock in the morning. Then I drove away and I tried to kill myself in the car and the cops found me”. The applicant went on to explain that he had attempted to commit suicide by driving the Daihatsu into a roundabout at high speed.

147. He agreed that he had told police that he had been driving around looking for someone walking alone in order to kill them. He remarked “I thought that the entire community was out to get me”. He said that he had had those thoughts for the preceding two months or so. He spoke of people having yelled things out to him whilst he was driving past locations, and accusing him of being a paedophile and a “dog”.

148. When Dr Westmore confronted him with the fact that he had not spoken to the police of his belief that the victim was a person by whom he had been taunted earlier that day, the applicant was unable to explain that disjunction. Later, he said “[i]t wasn’t really in my head at the time. I wanted to kill myself”.

149. The applicant told the forensic psychiatrist that he had first seen a mental health professional in about 2012, and had seen a psychiatrist once at that time. He had been prescribed some well-known anti-psychotic medications, and had taken them for a time, but ultimately stopped, because they caused him to have disturbing dreams.

150. He agreed that he had heard voices in the past, and that was why he had seen the psychiatrist in 2012. He denied receiving messages from the television or the radio, but said “I have to use earphones to block out the sounds”. He agreed that strangers talked about him or looked at him in a certain way, and also said that they “read my mind and everyone was changing the streets”.

151. He claimed that the people who had accused him of being a paedophile had also “wanted me to kill a kid or do something to a kid”.

152. When asked whether medication in custody was assisting him, he replied “[y]es, I haven’t heard voices for a couple of weeks now”.

153. When asked about his current mood state, he replied “I haven’t had any thoughts of killing anyone, so that (mood) is good”.

154. He agreed that he had told police that he wanted to kill as many people as he could, and explained “yes, because everyone was putting me down and I had trouble in the house as well. I thought everyone was out to get me”.

155. When asked whether what he had done to the victim was wrong, he replied “yes, because by doing that I have probably made her feel the way I feel, afraid to leave the house and, it’s against the law. I know that now, but at the time it wasn’t really in my head”.

156. He agreed that, at the time of the recorded interview, he had told police that he did not really care or have any feelings about killing people at the time of the incident.

157. With regard to his more general history, the applicant told the forensic psychiatrist that he had smoked cannabis on two occasions, but stopped doing so because he “felt like killing someone”. He had not used other prohibited drugs.

158. He related a significant family history of mental illness. He also spoke of having suffered from depression as a child, and being bullied at school. He had been suspended “heaps”. He had never worked, never had romantic partners, and had moved to Adelaide at one stage in an effort to find work. He spoke of having friends, but not speaking to them anymore because he had “heard them dogging me but, over the last couple of years, I’ve probably been hearing things”.

159. The applicant told the psychiatrist that, as at the evening in question, he had been thinking for a couple of months of attacking and killing somebody, and said that he had been very depressed at the time. He spoke of thoughts of self-harm that had extended for years, but that had never really been acted upon.

160. When Dr Westmore asked him directly why he had decided to go out and randomly kill a person, the applicant responded “because I thought that everyone was out to get me, I now know I was wrong (to think that)”.

161. Dr Westmore turned to examine the recorded interview of 22 November 2014. He noted the “extraordinary frank account” of the events of the evening in question.

162. At the conclusion of that first report, Dr Westmore diagnosed the applicant as suffering from a chronic paranoid schizophrenic illness which was, at the time of the assessment, in partial remission. A differential diagnosis included major depressive episodes, or an adjustment disorder with depressed and anxious mood.

163. The forensic psychiatrist expressed the opinion that the applicant was fit to be tried.

164. Dr Westmore requested more information from the defence legal team, including the Justice Health file of the applicant and the video of the recorded interview with police, but was content at that stage to express the opinion that, on the balance of probabilities, at the time of the attack upon the victim, the applicant was “suffering from an acute exacerbation of his chronic schizophrenic illness and that that acute exacerbation had been caused by his poor compliance with medication”.

165. Dr Westmore deferred the question of whether a defence of mental illness could possibly be available until the requested materials had been received.

Second report of Dr Westmore

166. The second report of Dr Westmore placed before the trial judge was dated 12 May 2015. By that stage, the psychiatrist had the extra materials that he had sought.

167. He noted from the Justice Health records that the applicant had been seen by a psychiatrist on 8 December 2014. At that stage, he was noted to have a “restricted affect, a depressed and flat mood and persecutory delusions.” Dr Westmore went on in his second report to summarise some of the Justice Health entries.

168. On 12 December 2014, a note was made that “in context of psychotic symptoms, thought whole community had alienated him and were calling him a paedophile behind his back.”

169. The doctor who spoke to the applicant on that occasion was provided with a history of the evening that was generally consistent with that given in the recorded interview with police. The doctor also wrote “no emotional response to having attacked a victim…at time of offence, felt confused and was having odd ideas re: converting energy from trees. Continues to have odd ideas, e.g. told me about his plans to have a black soldier insect larva to feed to carp which could then be turned into high Omega 3 chook feed”.

170. At the end of the second report, Dr Westmore noted the differing versions of events, with regard to his behaviour towards the victim, that the applicant had provided on different occasions. Nevertheless, Dr Westmore expressed the opinion that, at the time of the attack, the applicant was suffering from a disease of the mind in the form of paranoid schizophrenia, which “would have totally deprived him of the capacity to know that he ought not to have acted as he did towards the victim.” Dr Westmore noted that the attack upon her was unprovoked and unexpected, and the psychiatrist expressed the opinion that, on the balance of probabilities, those actions “arose as a direct result of his delusional beliefs at that particular time”. Dr Westmore also invited attention to the history of auditory perceptual disturbances, or ideas of reference, or both.

Third report of Dr Westmore

171. In a brief third and final report of 22 June 2015, Dr Westmore confirmed that by that stage he had watched the entirety of the video of the recorded interview. He invited attention to the “flat unreactive affect (expressive emotion) when providing the history that he had intended to kill a person at random”. Dr Westmore expressed the view, in the context of the presentation of the applicant in the recorded interview, that “[h]e showed, I felt, no insight into the wrongness of his actions. He described feeling “numb” the whole day leading up to the alleged offending behaviour and he advised police that he did not care what happened to the victim”.

172. Dr Westmore confirmed that watching the recorded interview did not alter his previously expressed opinion.

Justice Health records

173. The next piece of documentary evidence placed before the trial judge was the Justice Health records of the applicant. I shall not summarise them in any detail. Suffice to say they record (in reverse chronological order) the applicant as having spoken of trying to kill himself by way of the roundabout collision; the presence of paranoid beliefs about taunting and persecution by others; an expression of suicidal thoughts on 13 April 2015; a denial of hallucinations on 25 March 2015; a statement of 16 March 2015 that the applicant “feels better” about some improvement in the health of the victim; a reference of 14 February 2015 to his low mood and blunted affect; a note of 15 December 2014 of “Nil thought disorder presented. Pt. stated that he no longer hear voices and footsteps. Insight – Good insight. Perception – alert and orientated. Judgement – Good judgement.”; a denial of ideas of reference emanating from the television on 9 December 2014; an inability to explain why the attack occurred noted on 8 December 2014; a reference to the applicant having harmed himself because other inmates were taunting him whilst he was held in a safe cell; a reference that the applicant “remains paranoid” on 1 December 2014; and an assessment by a clinician of 25 November 2014 that the applicant was neither intoxicated nor withdrawing from any substance.

Report of Dr Adams

174. The final piece of documentary evidence placed before the trial judge was the report of Dr Jonathan Adams, forensic psychiatrist, of 4 November 2015. As I have said, that forensic psychiatrist was qualified by the Crown, and his opinion formed the basis of the Crown submitting that the special verdict sought by the applicant was the appropriate one.

175. Dr Adams recorded that the applicant confirmed that he had been hearing voices in the past, but was not by the time of the two interviews that underpinned the report, which were conducted on 29 September and 23 October 2015. He spoke of the voices as having been “external” to his mind, and occupying the space surrounding him; they were female; and he did not recognise any voice. The applicant had heard instructions from the voices to “decapitate people”. At times he used a music device with earphones to try to block out the voices.

299. I am also of the opinion that, at the time that he brutally and repeatedly stabbed the victim, the applicant was well aware of the nature and quality of his acts. The entirety of his versions of events is to that effect. And there is no suggestion in the evidence that, as a result of mental illness, the applicant believed (for example) that he was merely disabling an android, or an alien impostor, or otherwise not inflicting grave injury by way of a readily fatal weapon upon the body of a fellow human being. Yet again, I am in respectful agreement with the trial judge about that element of the affirmative defence.

300. I also consider that the applicant appreciated the formal legal wrongfulness of what he was doing. I say that because: during his extended drive around the Northern Rivers, he stayed within the speed limit; he parked his vehicle around the corner from where the victim was walking; he departed when the taxi driver approached; and, at least at the first stage of the police pursuit, he was seeking to escape from them. He also fled from them on foot after his vehicle crashed. In other words, I have no difficulty in finding that the applicant appreciated, on some level, that he was liable to apprehension by the police and detention by the criminal justice system if he were to kill other people. Yet again, the parties, the psychiatrists, the trial judge, and I are in agreement about this element of the offence.

301. The central, difficult, and contestable question in this appeal is whether the evidence establishes, on the balance of probabilities, that the applicant did not appreciate, in a considered way, the moral wrongfulness of attacking the victim with intent to kill her. Aspects of the evidence that are against establishment of that aspect of the defence are as follows.

302. First, all of the factors that I have recounted immediately above may demonstrate not just appreciation of legal wrongfulness, but also appreciation of moral wrongfulness. After all, the two are not entirely separate. And even many disturbed people surely appreciate the moral wrongfulness of intentionally bringing the life of a fellow human being to an end, even leaving aside the reaction of the criminal justice system to such a crime.

303. Secondly, one can readily infer a degree of planning underpinning the offence, not least by the presence of weapons in the vehicle of the applicant, including the weapon that he actually used.

304. Thirdly, despite his professed intention to kill as many persons as possible that evening, the applicant did not attack the male console operator in the service station. That might suggest a considered approach to the intention to kill, whereby the applicant refrained from effecting it when he may not succeed, or may more readily have been apprehended (by way of CCTV, for example). That in turn may indicate appreciation of moral wrongfulness.

305. Fourthly, the approach to the victim with the knife secreted behind his back certainly shows that the applicant appreciated that what he proposed to do must be kept hidden, and that may support an appreciation of moral wrongfulness.

306. Fifthly, the extreme ferocity of the attack itself may support the proposition that even a very disturbed person would appreciate its moral wrongfulness.

307. Sixthly, his response to the arrival of the taxi driver by fleeing the scene and thereafter the police may support the proposition that the applicant appreciated that he had done something grossly immoral.

308. In my opinion, the significant countervailing factors are as follows.

309. First, the mental illness from which the applicant suffered is a significant one. It featured auditory hallucinations, ideas of reference, and paranoid delusions. On the applicant’s earliest version of events, his attempt to kill the victim, and the plan to kill many other persons, was founded on the proposition that others were oppressing him, and accusing him of being a paedophile. That proposition was not just unlikely; based upon what his mother had to say, it was demonstratably delusional.

310. Secondly, although the difference between appreciation of legal wrongfulness and moral wrongfulness may be a refined one, and evidence of appreciation of the former may be relevant to appreciation of the latter, the law is clear that there is a distinction between the two. And it is not difficult to think of hypothetical examples whereby a very disturbed person may appreciate the former but not the latter: a person suffering command hallucinations that he or she believes are direct messages from a divinity may completely understand that society will react to his or her proposed actions with incarceration or other punishment. But the person may also believe that society is (unlike the person) unenlightened by the divine voice, and through its criminal justice system is standing in the way of a divine purpose that is utterly righteous.

311. In short, although connected, appreciation of legal and moral wrongfulness are distinct states of mind. And particularly in the case of significantly mentally ill people, one can readily see the conceptual difference between the two.

312. Thirdly, the same may be said about planning: it bespeaks an intellectual engagement with physical circumstances and consequences, but not necessarily an engagement with moral questions. Speaking more generally about the connection between planning and appreciation of moral wrongfulness, it is not difficult to think of examples from the 20th century whereby meticulously planned projects were undertaken at the behest of almost certainly disturbed leaders who had no moral appreciation of the gross wrongfulness of what they were seeking to achieve.

313. Fourthly, the contents of the conversations that the applicant had with others are, in my opinion, significant to this question. In particular, the contents of the recorded interview are illuminating. They show that the applicant readily admitted in detail not only the attack; not only the intention to kill at the time of it; but also the plan to commit mass homicide that evening. The expansive answers given to the questions of all of the police officers, whereby the applicant admitted all of that, is an important part of my determination.

314. Fifthly, even more important than the content of what he had to say is the affect of the applicant to be heard on the initial recording, and to be seen and heard on the longer one. He recounted the horrific details of the attack flatly, blithely, almost cheerfully, as if it were a banality. And he adopted the same manner with regard to the more general history of his intention to commit mass homicide that evening.

315. Sixthly, although it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system.

316. Seventhly, although I have reflected on the question, I do not believe that it could be conceivable that the affirmative defence could succeed with regard to one count, but not the other. By that I mean, I have reflected whether it could be the case that the applicant did not appreciate the moral wrongfulness of his attempt to kill, but did appreciate that it was morally wrong to cause the police to engage in a pursuit of him. Counter-intuitively, it could be the case that the applicant appreciated the wrongfulness of the less serious offence, bearing in mind that it was not central to his attempt to respond to his paranoid delusions by way of homicide. But I think that such an analysis would simply be too theoretical: after all, the pursuit occurred very soon after the attack, and the mind of the applicant was surely just as disordered then as it had been minutes beforehand.

317. Eighthly, I respectfully agree that the evidence about what the applicant was seeking to achieve when he fled from police and his vehicle collided with the roundabout is equivocal. It is possible that his claim that the impact was an attempt to commit suicide is not correct. But ultimately, I regard all of that as of little moment, in the context of a man who unquestionably was suffering from a significant mental illness; who deludedly believed that he was being oppressed by others, as evidenced voices that he heard speaking about him that were simply not there; who conceived of a plan to commit mass homicide as a result; who put it into operation against an individual whom he had never met, and who had offered not the slightest provocation in reality towards him; and who thereafter cheerfully confessed the entirety of what he had done and intended to do.

318. In short, this element of the defence is unquestionably finely balanced. But having undertaken a detailed review of all of the evidence placed before the trial judge, and bearing in mind that success with regard to this element and all elements of the affirmative defence requires only the merest “tipping of the scales” towards the proposition of the applicant in order to discharge the onus, I have respectfully come to a different view from that of the trial judge: I am satisfied on the balance of probabilities that, at the time he attacked the victim, the applicant did not appreciate the profound moral wrongfulness of his actions.

319. The combination of that state of mind on my part and my analysis of the meaning of the section leads to the result that I would grant leave to appeal and uphold the appeal, quash the convictions, substitute two verdicts of not guilty on the grounds of mental illness, and make uncontroversial consequential orders pursuant to the MHFP Act.

320. As against the possibility that my primary analysis is mistaken, I turn now to consider the other ground of appeal against conviction, and the grounds of appeal against sentence. Because of my determination with regard to this ground, however, all of the following analysis is contingent, and will be very concise.

Ground 1 of the conviction appeal

325. I repeat the ground for the convenience of the reader:

The trial miscarried in that the trial judge failed to address the evidence of Dr Westmore and Dr Adams as to the appellant’s demeanour during his ERISP interview as showing that the appellant did not know “the wrongness of his actions”.

Submissions of the applicant

326. In written submissions, senior counsel for the applicant detailed the latter evidence of Dr Westmore. In his third report, the psychiatrist noted:

“[the applicant’s] presentation during the Record of Interview revealed a man with a flat unreactive (expressive emotion) when providing the history that he had intended to kill a person at random…He described feeling ‘numb’ the whole day leading up to the alleged behaviour…While the Record of Interview did not alone, enable any diagnostic opinions to be expressed, the interview taken in conjunction with the history provided by Justice Health files is generally consistent to the diagnostic opinions expressed by both myself and Justice Health psychiatrists”.

327. In addition, reliance was placed on what Dr Westmore said about the applicant’s demeanour in his evidence-in-chief:

“Q. Looking at that DVD, where he appears to be how would describe him, in your words, looking at the DVD, as to how he presented?

A. Yes. The sorry, the most important abnormality in the DVD, from a psychiatric perspective, is his abnormal affect. That refers again to the his, his levels of emotional expression or expressiveness when discussing certain events, so affect incongruity is one of the hallmarks of schizophrenic illness, and I noted it when I first saw him, the prison psychiatrist had noted it and referred to it, and it was also evident in the DVD. There was a, a they, they talk about schizophrenia, the community uses the term split personality, but that is not correct. What is split is it is split, but it’s the splitting of the affect, a person’s ability, emotional reactions, to their thoughts, their thought processes, so there is this splitting away, and that’s what we see most prominently in that, in that DVD.” (TT 8.11)

328. Later, in cross-examination, Dr Westmore was asked:

“Q. It would be of concern for a layperson who had watched that DVD of the interview in relation to the reaction of the accused to the scenario that was put back to him as to the stabbing and so forth of this young woman, what can you comment about his lack of empathy or compassion? What does that suggest to you?

A. Yes, that, that is the, the characteristic of the illness that I was describing previously, this inability to emotionally relate to the feelings of others. I should, I should state clearly it’s very different from the lack of apathy that somebody who has a psychopathic personality disorder has, because patients once their illness is treated their, their affect returns and their ability well, not inevitably, but, but often their affect will return. It may not be within the normal range, but it is more reactive and responsive than it is when they are acutely unwell. In other words, that’s one of the hallmarks of the illness, this splitting off of the emotional expressiveness, the emotional feeling, and one’s thoughts and actions.

Q. Because there was comments made by Mr Carter which had this incongruity with the situation he was in. For instance, the mentioning of the itchiness of the jumpsuit that he had to wear because his clothes had been taken for forensic analysis, or intended analysis. How would you regard that, or what comment can you make about that surprising remark in the context of a very serious description of what was happening?

A. Yes, well, it’s incongruous, exactly the words you’ve used, it’s inappropriate. Almost in the same way that immediately when confronted he appears to make a frank and full confession to the police about his intentions, which is not really consistent with what a lot of offenders do, so he just straight away tells the police, I was driving the streets looking for somebody to kill, which is an unusual inappropriate behaviour under the circumstances, of the frank and full confession. It’s incongruous, inconsistent.” (TT 14.11)

329. Whilst it was acknowledged that the trial judge did refer to Dr Westmore’s third report, it was submitted that “he failed to mention the concluding opinion of the doctor”, namely, that the applicant had “no insight into the wrongness of his actions”.

330. In addition, whilst the trial judge did refer to Dr Adams’ conclusions about the applicant’s mental state at the time of the offence, he did not refer to the psychiatrist’s observations of the applicant’s ERISP.

331. In summary, it was submitted that the trial judge made no attempt to reconcile the evidence of the psychiatrists about the demeanour of the applicant during the recorded interview. That was said to be important, because it demonstrated the applicant’s demeanour shortly after the attack, and was certainly relevant to the trial judge’s ultimate conclusion that the mental illness defence had not been made out.

332. In oral submissions, by reference to the well-established obligation of a judge to give reasons, it was said that the “emotional state of the appellant as depicted in the ERISP interview shortly after the incidents going to this in the context of knowing the wrongness of his actions was the significant factual issue”, and that this was an “evidential dispute that the trial judge failed to resolve”.

333. It was submitted that the longer recorded interview occurred three and a half hours after the stabbing, and there was no evidence of a change in the emotional state of the applicant. That was said to be consistent with the observations of Senior Constable Hudson, in that, during the first interview shortly after the applicant’s arrest, the applicant was said to be staring straight ahead and remaining emotionless.

334. Furthermore, both psychiatrists had the benefit of viewing the recorded interview prior to coming to a conclusive view on the availability of the defence. It was submitted that the affect of the applicant was an issue that both counsel canvassed during the oral evidence of Dr Westmore. And yet, there was no reference in the reasons for verdict to this issue.

335. Senior counsel did concede, however, that neither counsel emphasised the importance of the applicant’s demeanour in his ERISP in their final addresses.

336. Attention was also invited to Dr Westmore’s first report – which was based on the transcript of the recorded interview but not the recording itself – in which the psychiatrist had recorded that the applicant gave “an extraordinary frank account of his actions leading up to the incident”.

337. Further, after viewing the video, Dr Westmore opined that the applicant when recounting the history of the incident showed no “apparent emotional reaction not did he express any emotional feelings or apparent empathy for the victim” and had “no insight into the wrongness of his actions”. Again, it was submitted that the trial judge did not include a reference to this significant aspect, nor attempt to reconcile it with the verdicts that rejected the defence.

Submissions of the Crown

338. In written and oral submissions, the Crown emphasised that there was no obligation on the trial judge to refer to every item of evidence, provided the judgment adequately demonstrated his Honour’s reasoning.

339. It was also submitted that the trial judge did, in fact, address the evidence of the psychiatrists in his judgment, including the presentation of the applicant in the recorded interview. That was so despite the fact that neither counsel made the submission that his Honour should turn his mind to it as a material, decisive factor.

340. It was emphasised that the trial judge extracted extended portions of the recorded interview at pages 28 to 35 of his reasons for verdict. Later, at page 41, when discussing the evidence of Dr Adams, his Honour stated:

“It is noteworthy that Mr Carter described feeling “numb” in the police interview immediately after the alleged offence, indicating his relative detachment from the severity of the alleged offending behaviour. His lack of facial expression and lack of distress during the police interview are also consistent with Mr Carter’s apparent detachment from the severity of the alleged offence.”

341. Further, at pages 42 to 51, the trial judge considered the evidence of Dr Westmore, referred to the psychiatrist’s desire to view the recorded interview in order to assess the applicant’s demeanour, and recited at length the oral questioning of Dr Westmore in relation to issue of whether the applicant appreciated the wrongfulness of his actions.

342. Senior counsel submitted that neither doctor relied on the recorded interview as crucial evidence of mental illness, or a significant determinative factor as to whether the defence was available, as both psychiatrists noted that the applicant’s presentation was not essential to the ultimate diagnosis. In particular, Dr Westmore diagnosed chronic paranoid schizophrenia, and stated that the applicant’s presentation in the recorded interview “did not, alone, enable any diagnostic opinions to be expressed”. Further, it was in the second report of Dr Westmore, before he viewed the ERISP, that the psychiatrist opined that the applicant had the mental illness defence available to him.

343. Ultimately, it was submitted that the trial judge did not rely upon the applicant’s demeanour as the decisive factor in the conclusion that the applicant had not discharged the onus of proving the defence of mental illness. Instead, a number of other factors led his Honour to conclude that the second limb of the defence had not been made out, including: the limited evidence of the applicant’s prior mental health or presentation well before the offences; the unreliable history given to the psychiatrists; the stealing of the knife, combined with the leaving home that evening armed with that knife intending to kill; the patrolling for victims; the secreting of the knife; the flight from the taxi driver and police; the viciousness of the attack; and the rejection of the thesis that the applicant was attempting to commit suicide when he crashed his vehicle.

341. In short, it was said that the presentation of the applicant in the recorded interview was “but one (relatively unimportant) aspect of the evidence of the appellant’s mental illness”, and that it was adequately addressed in the judgment.

Determination of Ground 1

345. Turning to my contingent determination of this ground, the trial judge gave perfectly adequate reasons for his determination about whether or not the defence had been established on the balance of probabilities. As the Crown submitted before this Court, it was not incumbent upon the trial judge to refer to every single piece of evidence, or every single submission, in the reasons for verdict. And it is quite clear that the trial judge took into account the demeanour of the applicant during the recorded interview: so much is apparent from the questions his Honour asked of Dr Westmore, and his reference to the opinions of the psychiatrists in his judgment. Finally, it is surely significant to the determination of this ground that the particular matter now complained of was not emphasised in written and oral submissions of defence counsel with regard to verdict.

346. If I be wrong in my primary analysis, I would not uphold this ground.

Appeal against sentence

347. Before turning to my contingent analysis of the proposed grounds of appeal against sentence, I briefly summarise the findings of fact and evaluative judgments made by his Honour in the remarks on sentence, to the extent that they are additional to all of the objective and subjective features to which I have referred at length above.

348. First, his Honour analysed the evidence about the medication the applicant received and the medical practitioners whom he attended derived from Medicare records. That prescription of medication was under the Pharmaceutical Benefits Scheme, from nine providers, across South Australia, New South Wales, and Queensland, from 28 January 2011 until 20 November 2014.

349. In addition, his Honour summarised the documents from Prospect Medical Centre in South Australia, in order to discuss in more detail the applicant’s past history of depression and the fact that no “perceptual abnormalities or psychotic symptoms” were observed by medical practitioners between April 2012 and April 2013.

350. His Honour also discussed the report of Dr Cescato, a clinical psychologist, who had seen the applicant on 6 December 2012 and 17 January 2013. That report said that the applicant had ceased taking his medication; that he suffered a major depressive disorder; and that later appointments were cancelled. The psychologist also discussed contacting the applicant’s mother after his arrest, and how the applicant had been prescribed Zyprexa from another practitioner in upon his return to New South Wales in May or June 2013; however the applicant did not commence to take it.

351. Finally, the remarks on sentence refer to the fact that, in the Justice Health materials, reference was made to the assessment that was undertaken when the applicant came into custody. On a self-report assessment, the applicant obtained a score consistent with severe depression and/or anxiety disorder. The records also discuss the history of treatment for mental illness, including schizophrenia and depression. Numerous other entries were discussed, including: that he had cut his wrists shortly after entering custody in November 2014; that he had first experienced auditory hallucinations in high school; that a doctor recorded an impression of untreated schizophrenia comorbid with depression; the expression of odd ideas about emission of energy from trees and harvest insects; and continuing psychosis, hallucinations, paranoia, and ideas of persecution by other inmates.

352. In 2016, a Justice Health psychologist, Dr Dayalan, made a more recent diagnosis of schizophrenia. His Honour noted improvements in the applicant’s mental state due to his current medication; the implication that his condition is “manageable under appropriate medication properly monitored”; and that there was no evidence from health care providers of his presentation in the weeks leading up to the offence.

353. Separately to the material reviewed in the remarks on sentence, I also record at this stage that a distinguished forensic psychiatrist provided documentary and oral evidence before us. Senior counsel for the applicant made it clear that that evidence was only relied upon if error were established in the appeal against sentence. Because of my opinion expressed below that no error in sentence has been established, I shall not summarise that evidence.

Grounds of appeal against sentence

354. I repeat for the convenience of the reader the grounds of appeal against sentence that were notified and pressed:

1. The aggregate sentence of 20 years 6 months was disproportionate to the objective seriousness of the offences.

2. The trial judge erred in failing to impose a lesser penalty in relation to the appellant’s facilitation of the administration of justice.

3. The aggregate sentence imposed was manifestly excessive.    

Ground 1 of the sentence appeal

Submissions of the applicant

355. The submissions of senior counsel for the applicant with regard to this ground may be summarised as follows.

356. First, it was submitted that this Court, in accordance with what was said by R A Hulme J in JM v R (2014) NSWCCA 297, can consider the indicative sentences provided as a “guide to whether error has been established in relation to the aggregate sentence”.

357. Secondly, as the applicant’s moral culpability was “significantly compromised” because of his mental condition at the time of the commission of the offence, the indicative sentence of 20 years for the wounding with intent to murder is disproportionate. That disproportionality was said to be apparent from both the objective circumstances of the offence, and the matters personal to the applicant. Reliance was placed on Yun v R [2017] NSWCCA 317, at [47], for the proposition that “an offender’s mental condition at the time of the commission of the offence is a critical component of ‘moral culpability’ which in turn affects the assessment of ‘objective seriousness’”.

358. Third, the indicative sentence of 1 year 4 months for the police pursuit was similarly disproportionate to the objective circumstances of that offence. That was submitted to be due to the applicant’s moral culpability, his age of 22, and the fact that he had no prior criminal record.

359. In summary, it was submitted that both indicative sentences were suggestive of error; that in turn led to the aggregate sentence of 20 years 6 months being disproportionate to the objective seriousness of the offence; and that the notional accumulation of merely 6 months did not alleviate the error.

Determination of Ground 1

360. Turning briefly to my contingent determination of this ground, the objective features of the primary count can only be described as horrific. It will be recalled that, objectively, the vulnerable young victim was ferociously attacked; she suffered a number of gaping knife wounds, including one that penetrated her brain; when she arrived at the hospital she was minutes from death; and the attack was committed in the context of a plan to commit mass murder. It must be assessed objectively as an exceptionally grave example of “statutory” attempted murder. It is no exaggeration to say that, purely objectively, it approaches the worst class of case of a wounding with intent to murder.

361. Furthermore, whilst it is true that the moral culpability of the applicant was very much reduced by his mental condition, there inevitably arose a very real question about the protection of the community in this case. And in any event, the ground as framed speaks of a disjunction between the aggregate sentence and the objective features of the offending.

362. For all of those reasons, I do not accept that the aggregate sentence of imprisonment for 20 years 6 months was disproportionate to the objective features of the offending.

Ground 2 of the sentence appeal

Submissions of the applicant

363. Senior counsel for the applicant submitted that, as this case was a “one issue trial”, s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, due to “the degree to which the administration of justice has been facilitated by the defence”, which includes pre-trial disclosure. The points were made that the elements of the counts on the indictment were conceded, and the prosecution “brief” was provided without objection.

364. This issue was said to be raised by defence counsel during the proceedings on sentence, at TT 13.05:

“KUMARASINHE:…That s 21A(3) makes also reference to any pre trial disclosure. Your Honour will recall that I did make reference, and the Crown will concede this from the very outset, to the various discussions with the Crown. Always the Crown was informed that this matter was going to proceed without any witnesses for the Crown being called, in other words, the brief of evidence to be handed up.

HIS HONOUR: If I haven't made reference to it, I will be making reference in the first judgment to the economical approach to the conduct of the trial.

KUMARASINHE: I thank you for that, your Honour...”

365. Reliance was placed on the judgment of Johnson J in R v Fang (No 4) [2017] NSWSC 323, whereby a discount was applied to the sentence of an offender for the facilitation of the administration of justice, at [69]:

“The trial was conducted efficiently on behalf of the Offender. As I have noted earlier (at [42]-[43]), the trial was confined to limited issues with a range of admissions being made by the Offender at the trial. In these circumstances, I am satisfied that the Offender should have the benefit of a favourable finding for his pre-trial disclosure and his facilitation of the administration of justice for the purpose of s.21A(3)(e) and s.22A Crimes (Sentencing Procedure) Act 1999. In forming this view, I have kept in mind that s.21A(3)(e) and s.22A are not intended simply to reward the defence where it has complied with a mandated disclosure requirement. However, co-operation encompassed by these provisions extends to admissions, disclosures made before or during the trial or limiting the facts in issue in the trial, thereby reducing the number of witnesses to be called. All of these things occurred in this case.”

366. It was submitted that there was “no difference” between the circumstances of Fang (No 4) and to this case, whereby the applicant made significant pre-trial disclosures to facilitate the administration of justice.

367. Furthermore, as the Crown did not oppose the giving of such consideration, and as there is nothing in the remarks on sentence on this point, senior counsel submitted that one could infer that its absence was simply an oversight on the part of his Honour.

Determination of Ground 2

368. Turning to my contingent determination of this ground, the expeditious presentation of the matter was “part and parcel” of the fact that there were no issues of fact or law between the parties. In other words, whilst it is true that things were presented by way of a convenient forensic shorthand (which, as it happened, did not find favour with the tribunal of fact), there is no reason why the applicant needed to have been given credit for that at first instance.

369. Quite apart from that, any credit to be given with regard to this aspect of the matter would utterly pale into insignificance in comparison to the objective gravity of the matter, and the need for protection of the community.

370. If I be wrong about the conviction appeal, I would not uphold this ground.

Ground 3 of the sentence appeal

Submissions of the applicant

371. The submissions in support of the proposition that the aggregate head sentence and aggregate non-parole period are manifestly excessive may be summarised as follows.

372. It was said that both the indicative sentences and aggregate sentence are manifestly excessive. Senior counsel relied on many of the matters raised in support of grounds one and two, including the findings of his Honour that the applicant’s moral culpability was “severely compromised”, and that there should be a reduction accorded for facilitating the administration of justice.

373. Other factors relied on to demonstrate a manifestly excessive sentence included: the applicant’s mental illness, in relation to general and specific deterrence, denunciation and the fact that gaol time will “be more onerous as a result of his mental disability”; his relatively young age of 22; and the fact that he possessed no prior convictions at the time of the offending.

374. In oral submissions, emphasis was again placed on the “disproportionate” indicative sentence for the police pursuit offence of 1 year 6 months. Senior counsel for the applicant submitted that, if it had been dealt with on its own in the District Court or Local Court, it would be unlikely that the applicant, a young man with no criminal record, would have received any gaol sentence for it at all.

Determination of Ground 3

375. Turning to my determination of this ground, much of what I have written about the question of objective seriousness is apposite here.

376. On the contingent assumption that the applicant was indeed criminally liable for the offences: he came very close indeed to murdering an innocent young woman. Her ordeal was physically and psychologically extremely traumatic, and no doubt has had its permanent consequences. The driving offence surely endangered members of the community, even allowing for the lateness of the hour. Whilst it is true that the applicant accepted that he had committed the physical acts alleged against him, had no criminal record, and his mental illness was a powerfully mitigating feature, the protection of the community was a significant factor, and the principles in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 undoubtedly had a central role to play on sentence. The accumulation within the sentencing structure meant that the period in custody solely referable to the secondary offence was as little as six months. Finally, the aggregate sentence features a marked reduction in the “statutory ratio” between the aggregate head sentence and the aggregate non-parole period.

377. In all of those circumstances, I do not believe that the aggregate sentence can be characterised as manifestly excessive. It is certainly substantial, but that is an inevitable consequence of the gravity of the primary offending.

378. If I be wrong about the appeal against conviction, I would not uphold this ground of appeal against sentence.

Conclusion

379. To summarise then the entirety of the above analysis: I consider that s 7(4) of the Criminal Appeal Act is to the effect that there is to be a de novo determination by this Court of the question of whether the defence of mental illness has been established when it has been rejected at first instance. Analysing the evidence in accordance with that kind of review, I consider that the affirmative defence is established. If I be wrong in that analysis, I would not uphold the other ground of appeal against conviction, nor any of the grounds of appeal against sentence.

380. Finally, because I propose that the result of this litigation be that the applicant – who was found guilty at trial of a very grave attempted murder, and who has always admitted that he repeatedly stabbed the victim with intent to kill her – will nevertheless on appeal be acquitted of that offence, I believe that it is appropriate for me to explain the meaning and effect of the orders that I propose. They are the following.

381. First, the effect of the proposed orders is that the applicant is not to be held criminally responsible for what occurred on the evening in question. But there is no question that he committed the physical acts underpinning the offences, and the verdicts of acquittal do not say anything to the contrary.

382. Secondly, the verdicts of not guilty on the ground of mental illness are completely different from a straightforward verdict of not guilty, whereby the alleged offender is not liable to any further or future constraint on his or her liberty. To the contrary, the effect of the orders I propose is that the applicant will be committed to the care of the Mental Health Review Tribunal (the Tribunal). Pursuant to the MHFP Act, the Tribunal is not to release the applicant unless and until it is affirmatively satisfied that he does not constitute a serious risk to others or himself.

383. Thirdly and finally, in other words, it is perfectly possible that the applicant may spend more time in detention, pursuant to the orders I propose, than he would have spent in custody, pursuant to the convictions and sentences imposed at first instance.

Proposed orders

384. I propose the following orders:

1.    Leave to appeal against conviction granted.

2.    Appeals against conviction allowed.

3.    The conviction for wounding with intent to murder is quashed.

4.    The conviction for the driving offence involving a police pursuit is quashed.

5.    On each count, a special verdict of not guilty on the grounds of mental illness is entered.

6. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the applicant is to be detained in such place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law.

7.    The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

8.   The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide those bodies with the following documentation:

1. A copy of the judgments of this Court and its orders;

2. A transcript of these proceedings;

3. A transcript of the trial; and

4. A copy of the exhibits tendered at trial.

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Decision last updated: 08 February 2019