Cooley v The State of Western Australia
[2005] WASCA 160
•19 AUGUST 2005
COOLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 160 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:43/2004 | 23 MAY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 19/08/05 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against conviction granted; appeal dismissed Application for extension of time granted; application for leave to appeal against sentence granted; appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | TIMOTHY JOHN COOLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Wilful murder Insanity Specific intent Nondisclosure by State of information affecting witness' credibility Evidence Inferences Circumstantial evidence Sentence Wilful murder Minimum term of 17 years Paranoid psychosis at time of offence Effect on sentence |
Legislation: | Nil |
Case References: | Abbott v The State of Western Australia [2005] WASCA 42 Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 Bugmy v The Queen (1990) 169 CLR 525 Buttsworth v The Queen (2004) 29 WAR 1 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Channon v The Queen (1978) 20 ALR 1 Cook v The Queen (2000) 22 WAR 67 Gallagher v The Queen (1986) 160 CLR 392 Garrett v The Queen [1999] WASC 169 Hawkins v The Queen (1994) 179 CLR 500 Lawless v The Queen (1979) 142 CLR 659 Mickelberg v The Queen (1989) 169 CLR 259 Power v The Queen (1974) 131 CLR 623 R v Apostilides (1984) 154 CLR 563 R v Brown (Winston) [1998] AC 367 R v Dalgety [2000] WASCA 10 R v Easterday; R v Ireland (2003) 143 A Crim R 154 R v Inge (1999) 108 A Crim R 281 R v Keane [1994] 2 All ER 478 R v Livingstone (2004) 150 A Crim R 117 R v Paraskeva (1982) 76 Cr App Rep 162 R v Reardon (No 2) (2004) 60 NSWLR 454 R v Sherratt (2000) 112 A Crim R 177 R v Tsiaras (1996) 1 VR 398 R v Wedd (2000) 115 A Crim R 205 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Simms v The Queen [2004] WASCA 237 Srna v The Medical Board of Western Australia [2004] WASCA 198 Veen v The Queen (No 2) (1987) 164 CLR 465 Ward v The Queen (2000) 23 WAR 254 Whitehorn v The Queen (1983) 152 CLR 657 Wilson v The Police [1992] 2 NZLR 533 Domican v The Queen (1992) 173 CLR 555 Edwards v The Queen (1993) 178 CLR 193 Fitzgerald v Penn (1954) 91 CLR 268 KBT v The Queen (1997) 191 CLR 417 Mitchell v The Queen (1998) 20 WAR 257 Nestorov v The Queen [1999] WASCA 303 Osland v The Queen (1998) 197 CLR 316 Perkins v The Queen [1983] WAR 184 R v Clune (No 2) [1996] 1 VR 1 R v DDR (1997) 99 A Crim R 327 R v Ireland (1970) 126 CLR 321 R v Schmahl [1965] VR 745 R v Tran (2000) 118 A Crim R 218 R v Veverka [1978] 1 NSWLR 478 Stanton v The Queen (2003) 77 ALJR 1151 Zoneff v The Queen (2000) 200 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COOLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 160 CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
- CCA 205 of 2004
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
File No : INS 99 of 2002
(Page 2)
Catchwords:
Criminal law - Appeal - Wilful murder - Insanity - Specific intent - Nondisclosure by State of information affecting witness' credibility
Evidence - Inferences - Circumstantial evidence
Sentence - Wilful murder - Minimum term of 17 years - Paranoid psychosis at time of offence - Effect on sentence
Legislation:
Nil
Result:
Application for leave to appeal against conviction granted; appeal dismissed
Application for extension of time granted; application for leave to appeal against sentence granted; appeal allowed
Category: A
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Applicant : Gary Huggins
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
Bugmy v The Queen (1990) 169 CLR 525
Buttsworth v The Queen (2004) 29 WAR 1
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Channon v The Queen (1978) 20 ALR 1
Cook v The Queen (2000) 22 WAR 67
Gallagher v The Queen (1986) 160 CLR 392
Garrett v The Queen [1999] WASC 169
Hawkins v The Queen (1994) 179 CLR 500
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 169 CLR 259
Power v The Queen (1974) 131 CLR 623
R v Apostilides (1984) 154 CLR 563
R v Brown (Winston) [1998] AC 367
R v Dalgety [2000] WASCA 10
R v Easterday; R v Ireland (2003) 143 A Crim R 154
R v Inge (1999) 108 A Crim R 281
R v Keane [1994] 2 All ER 478
R v Livingstone (2004) 150 A Crim R 117
R v Paraskeva (1982) 76 Cr App Rep 162
R v Reardon (No 2) (2004) 60 NSWLR 454
R v Sherratt (2000) 112 A Crim R 177
R v Tsiaras (1996) 1 VR 398
R v Wedd (2000) 115 A Crim R 205
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Simms v The Queen [2004] WASCA 237
Srna v The Medical Board of Western Australia [2004] WASCA 198
Veen v The Queen (No 2) (1987) 164 CLR 465
Ward v The Queen (2000) 23 WAR 254
Whitehorn v The Queen (1983) 152 CLR 657
Wilson v The Police [1992] 2 NZLR 533
(Page 4)
Case(s) also cited:
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Fitzgerald v Penn (1954) 91 CLR 268
KBT v The Queen (1997) 191 CLR 417
Mitchell v The Queen (1998) 20 WAR 257
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen (1998) 197 CLR 316
Perkins v The Queen [1983] WAR 184
R v Clune (No 2) [1996] 1 VR 1
R v DDR (1997) 99 A Crim R 327
R v Ireland (1970) 126 CLR 321
R v Schmahl [1965] VR 745
R v Tran (2000) 118 A Crim R 218
R v Veverka [1978] 1 NSWLR 478
Stanton v The Queen (2003) 77 ALJR 1151
Zoneff v The Queen (2000) 200 CLR 234
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction and sentence following the applicant's conviction of wilful murder after trial before a Judge and jury in Perth. The applicant was convicted on 18 March 2004 of the wilful murder of Barry William Lewis at Perth on 6 November 2000.
3 The notice of application for leave to appeal against conviction was dated 7 April 2004 and contained only one ground of appeal, which was that the trial Judge, in summing-up, erred in law by not presenting the case for the defence to the jury in a fair and balanced way. That was obviously wholly inadequate and the notice was amended by order of Miller J on 4 August 2004, by replacement of that single ground with eight grounds. Ultimately, grounds 1, 4 and 5 were abandoned. The remaining grounds were as follows:
" GROUND TWO
The Learned Judge failed to adequately or at all deal in her summing-up with the issue of the murder weapon, namely:
i) a large knife was said to be the murder weapon. This knife was not unique in any particular way so as to cause it to be readily identifiable. The Appellant was found the following day in a suburb of Perth (other than where the offence was committed) in possession of a knife that was not linked by any DNA or forensic evidence to the knife that killed the deceased;
ii) the Learned Judge failed to adequately or at all in her summing-up to address the fact that the evidence of Dr Clive Cooke, Forensic Pathologist called by the Respondent, was such that it could not exclude a large number of knives as being the murder weapon. The evidence of Dr Cooke was that the knife found on the Appellant the following day was not the murder weapon, simply that it was similar in shape and size to the knife used in the commission of the offence.
(Page 6)
- GROUND THREE
The trial process was unfair and there was prejudice to the Appellant in the way the evidence of the Appellant's mental condition was put to the jury, namely:
i) the Learned Judge failed to adequately or at all correctly sum up to the jury the relevance and applicability of the defence of insanity and the presumption of innocence as they applied to the Appellant;
ii) the Respondent's expert Dr Zdenek (Sid) Srna has, since the trial, been discredited by the Medical Registration Board and had his ability to give credible and reliable evidence questioned. Dr Srna's evidence (namely that the Appellant confessed the killing to him when he, Dr Srna, was asked by the Respondent to examine the Appellant) was a cornerstone of the Respondent's case. This Honourable Court should accept into evidence, pursuant to s 697 of the Criminal Code, fresh evidence regarding the position of Dr Srna and question marks now raised over his ability to give credible evidence.
…
GROUND SIX
The Learned Judge failed to adequately or at all deal with the fact that items such as a bag and food wrapping found near the scene of the crime, with the Appellant's fingerprints on them, could have been dropped there after being handled by the Appellant by anyone [sic] of a number of other homeless males who attended the soup van on The Esplanade on the morning of the offence.
GROUND SEVEN
The Learned Judge failed to adequately or at all deal in her summing-up with the inference consistent with innocence, that was reasonably open on the evidence, of Ms Gallagher (whose name was not read by the prosecutor in his opening as a witness proposed to be called on behalf of the Respondent) that the contract supervisor did not clean the relevant part of The
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- Esplanade Park between 6.00 - 7.00 am on the morning of the offence.
GROUND EIGHT
The above matters, either viewed in isolation or as an aggregate of errors in the conduct of the trial, are such as to have led to a miscarriage of justice, an unsafe conviction and one that should therefore be set aside."
4 The application was listed for hearing on 2 February 2005. On that occasion the Court enquired whether the applicant proposed under ground 3 to challenge the trial Judge's direction with respect to the formation of a specific intent, having regard to the evidence of the mental illness of the applicant. It was pointed out to counsel that there is authority to suggest there is no reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act (that is to say, who cannot establish unsoundness of mind) was done with a specific intent. The Court referred to Hawkins v The Queen (1994) 179 CLR 500 at 513, Ward v The Queen (2000) 23 WAR 254 at 260 and Simms v The Queen [2004] WASCA 237.
5 Counsel for the applicant's response was that he had not considered the point, but it having been raised by the Court he would seek to amend the grounds of appeal to include it and continue with the application. The Director of Public Prosecutions, then appearing for the respondent, opposed that course, as he was understandably not prepared to argue the point. The Court accordingly adjourned the hearing to be re-listed.
6 The application came on for hearing again on 23 May 2005. The applicant's oral submissions were directed to the issue of the evidence of mental illness and the element of specific intent; apart from one aspect, counsel for the applicant otherwise relied upon his written outline of submissions going to the remaining grounds of appeal, filed on 19 January 2005. The other aspect addressed in oral argument concerned ground 3(ii). Dr Srna had been the subject of a complaint to the Medical Board. In a decision given in September 2003, the Board found the complaint proved and made certain findings adverse to Dr Srna's credit. When the applicant was before Miller J for directions on 4 August 2004 his Honour noted that the decision of the Medical Board in respect of Dr Srna had subsequently been overturned on appeal to a single Judge of the Supreme Court, and he therefore deleted that ground. When this was pointed out to counsel for the applicant on 23 May, he said he did not seek
(Page 8)
- to "actively push that ground" although he would seek leave to reinstate it. As Mr Dempster, who appeared for the respondent on that occasion, had prepared his submissions on the understanding the applicant was still relying on that ground, we heard counsel on it.
The State case
7 Barry Lewis ("the deceased") was a man who had fallen on hard times. He was one of a number who received assistance and support from the Salvation Army. One of the services the Salvation Army provides in Perth is what is colloquially referred to as a "soup kitchen" which operates each morning on the lawn by the Esplanade between the Supreme Court building and the Swan River in the City of Perth. The deceased had been collecting food parcels from the Salvation Army van each morning for some time.
8 The deceased and the applicant had known each other for a number of years. Indeed, a short time before the events with which this application is concerned, the deceased had stayed at the accused's flat for about a week.
9 The morning of Monday 6 November 2000 started as any other ordinary day for the deceased as he made his way to the soup van and collected his soup and sandwiches. At the van, he met the accused. As the State prosecutor put it in opening, although there had been some signs of strain in their relationship, the deceased could not have appreciated on that Monday morning as he stood in line with the accused that the latter was harbouring the darkest of thoughts towards him.
10 The accused took his breakfast from the van, crossed Barrack Street and sat on a park bench in the garden across the road from the Supreme Court building. The deceased walked across and joined him.
11 Having eaten his breakfast the applicant took a large hunting knife that he was carrying on him and plunged it into the deceased's neck. So savage was the blow that the knife penetrated the deceased's jaw and travelled all the way through his neck, coming out the other side of his face. It was a fatal injury. The deceased bled to death. Bleeding into his lungs also contributed to his death.
12 When he was stabbed, the deceased staggered towards the footpath, screaming for help, as he began to bleed profusely. The accused stood watching for a short time and then walked off. Passers by tried to help the deceased but he died soon afterwards.
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13 It was common ground at the trial that at all relevant times the applicant was suffering from chronic paranoid schizophrenia and delusions.
14 On behalf of the defence it was argued that the evidence did not establish that the applicant was the attacker. Other arguments put were that if it was he who killed the deceased, he did so without the capacity to know that what he was doing was wrong (that is, giving rise to an insanity defence under s 27 of the Criminal Code) or alternatively, under the delusion that he was about to be killed by the deceased and therefore acted in self-defence arising out of a delusional belief within the meaning of the second paragraph of s 27 of the Code.
15 There was evidence from a number of witnesses that immediately before the deceased suffered his fatal injury, he was seen with another man in the Esplanade park near a bench adjacent to a driveway leading to a building set in from the corner of the Esplanade and Barrack Street. The witnesses' descriptions of the other man varied somewhat, but it was the prosecution case that those descriptions were generally consistent with the appearance of the applicant at that time.
16 There was evidence that before the deceased died, he spoke a few words, the effect of which confirmed it was the person he had just been with who stabbed him.
17 Police officers found the remnants of a food parcel under the bench. A fingerprint on the plastic bag and DNA material on two of the items contained within it, matched the DNA of the applicant. The bag had come from the soup van. There was evidence that the deceased was with another man near the bench in the park and that the items found under the bench were consistent with having come from the applicant and with items from the soup van.
18 Police located the applicant the following day in Bentley, a suburb of Perth. He had on him a large hunting knife which they seized. There was no blood nor other material found on the knife, although its shape and size were consistent with the injuries inflicted on the deceased.
19 The applicant was interviewed by police on 7 and 8 November 2000. He denied he was the person who stabbed the deceased although he admitted having gone to the soup van that morning and having spoken to the deceased.
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20 There was evidence from Dr Srna, a psychiatrist called by the prosecution, and Dr Patchett, a psychiatrist called by the defence, that the applicant admitted to each of them that it was he who stabbed the deceased. He told Dr Srna that he killed the deceased because the deceased and others had conspired to kill him and were going to put him through a mincer; he told Dr Patchett that he intended to disable the deceased.
21 It was the prosecution case that the applicant lied to the police about two matters which evidenced a consciousness of guilt. The first was that he claimed not to have stopped in the Esplanade park at all on that morning to have his breakfast but had taken his soup and bag along the Esplanade then into the city malls and eventually into Northbridge. The second was that he told the police that the knife found on him the day after the killing had been in his flat on 6 November 2000, the day the deceased was killed. There was evidence from the applicant's landlady and a bailiff who was called into evict the applicant, that in fact he had been evicted from his flat and the lock was changed on the morning of 6 November at a time when on the applicant's own admission to the police he was still in Perth collecting his breakfast, so that he was not able to gain access to the flat after that. He had no opportunity after that time to re-enter the flat and collect the knife which was found in his possession the following day.
Ground 2 - The knife
22 It is submitted there was no DNA nor other forensic evidence to link the knife, exhibit 13A, said by the prosecution to be the murder weapon, to the applicant. In fact of course, the knife was linked to the applicant because it was found in his possession. What was missing was such evidence linking it to the deceased. There was no blood, DNA, nor any other identifying material found on it, even though the handle was taken apart. The blade was smooth, although it had the word "Colt" engraved on it.
23 This ground asserts and counsel for the applicant submits the evidence of the forensic pathologist, Dr Clive Cooke, was that the knife tendered was consistent with the type of injuries inflicted on the deceased but was not the knife. That is not what Dr Cooke said. To the contrary, his evidence was that exhibit 13A was consistent with the type of injury to the deceased and had certain characteristics which "closely fitted" those injuries. The exhibit was "robust", that is, it had a strong blade easily capable of penetrating the deceased's mandible (as it had been). The
(Page 11)
- diameter of the deceased's neck at the wound was 13 cms. The exit wound on the right side of the neck measured 13 mm. Dr Cooke measured where the blade was 13 mm across (which was near the point of the blade) and 13 cm from that spot the width of the blade was 4 cm, which matched the width of the wound on the left side of the deceased's neck. The blade had a single cutting edge, was quite broad along the spine and the back part of the blade was notched. These features were consistent with bruising and bifid cuts at the entry wound. Quite clearly, if the jury was satisfied it was the applicant who had been with the deceased when he was killed, it was open to them to conclude on this evidence that he killed the deceased with exhibit 13A.
24 It is next submitted that the Judge "did not adequately mention" the knife in her summing-up. There is no substance to this. Her Honour's directions specifically in relation to the knife, extend to some three and a half pages of transcript. She reminded the jury in detail of Dr Cooke's evidence about it. She reminded them of the various matters advanced by the defence, including the absence of blood or DNA material on the knife. She adverted to a proposition put forward by the State, that there were marks on the knife consistent with it having been cleaned and warned the jury against taking that approach because there was no evidence to support the proposition the marks were made that way, and to do so would be descending into conjecture and speculation. Her Honour referred to the issue whether blood would necessarily have been on the knife and to the evidence in relation to that. Her Honour's directions in respect of the knife were comprehensive and fairly put the competing contentions in respect of the issues relating to it.
Ground 3 - Evidence going to insanity: specific intent
25 The point argued was not squarely raised by this ground, but counsel for the respondent was not prejudiced because it was the point which had been raised by the members of the Court on the earlier hearing.
26 In substance, counsel for the applicant submits there was a miscarriage of justice in that the trial Judge failed to give a direction in accordance with Hawkins. It is submitted the psychiatric evidence of mental disease was relevant not only to the issue of insanity under s 27 of the Code (which was put to the jury but which was rejected by them) but also to the issue of the formation of a specific intent - in this case, to kill or to cause grievous bodily harm.
27 No complaint is made about the trial Judge's directions to the jury on the issue of insanity; what is contended is that her Honour failed to
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- explain to the jury adequately (or at all) that should they not be persuaded of the applicant's unsoundness of mind at the time of the killing, the evidence relevant to his mental disease was still relevant to the question whether he was capable of forming, or did in fact form, the necessary specific intent.
28 In Hawkins the appellant had shot and killed his father. At trial, counsel for the appellant sought to lead evidence from two psychiatrists in order to raise a reasonable doubt as to the appellant's intent when the gun was fired. That evidence would have been that he was suffering from diagnosable mental diseases which would have very seriously impeded his ability to think clearly or logically and would have "somewhat fragmented" his thought processes and that there was significant doubt about his capacity to form the intent to kill his father. Counsel neither raised a defence of insanity nor wished that defence to be put to the jury. The trial Judge ruled the medical evidence was inadmissible for any purpose other than insanity and the evidence was not called. The appellant was convicted of murder (defined in the Tasmanian Criminal Code so as to require specific intent) and his appeal was dismissed.
29 The judgment of the High Court draws a distinction between the use of evidence of this kind to demonstrate involuntariness, when insanity is not raised, and to demonstrate lack of specific intent. It is not necessary here to say anything about the former. As to the latter, the Court said (at 513) there is no reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act, was done with specific intent.
30 The Court held that, in such a case, the person would be liable in any event to conviction for an offence constituted by the doing of the relevant act but liable to conviction for a more serious offence only if the prosecution established the intent which proof of the more serious offence required.
31 Contrasting the position of psychiatric evidence going to insanity and involuntariness on the one hand, and insanity and specific intent on the other, the Court said (at 517):
"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved … before there is any issue of the specific intent with which the act
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- is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under [the relevant section].
It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in … the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent …"
32 Hawkins was applied in Ward v The Queen (supra), an appeal before a bench of five Judges of the Western Australian Court of Criminal Appeal. However, the point in issue there was a direction by the trial Judge that the issue of insanity should be considered before the question of the applicant's intent, which is not something raised in this case. It was accepted by all members of the Court that the law as articulated by the High Court in Hawkins, pertinent to this case, was that evidence going to insanity but not establishing that, was relevant and admissible on the issue of a specific intent.
33 Ward followed and approved the majority judgments in the earlier case of Garrett v The Queen [1999] WASC 169. Again, the substantial point in issue there was whether the jury should be directed to consider the issue of insanity before that of intent (in both Ward and Garrett it was held they should). It was assumed the evidence going to insanity was also relevant to, and admissible on, the question of intent.
34 In the course of her directions to the jury, her Honour told them they were entitled to rely upon the whole of the evidence and that included anything said by the accused, although given in evidence by another person. She said there were three examples of such evidence in this case. They were what the applicant said to the police officers, what he said to Dr Patchett and what he said to Dr Srna. Before acting on any of that, she said, the jury would have to be satisfied the accused did in fact say what
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- the witness testified he said, and then that it was a truthful or reliable account.
35 In the context of the definitions and elements of the offences of wilful murder, murder and manslaughter, her Honour directed the jury on the element of intention to kill or cause grievous bodily harm. As direct evidence of intention she instanced the accused's statements to Dr Srna that he intended to kill the deceased when he struck him with the knife, so as to free himself from the conspiracy of the deceased and others to kill him, and to prevent them killing him. She specifically told the jury that they should look at what the applicant said, "even in his delusional state" (my emphasis) that he was trying to achieve, in order to determine what his intention was at the time he inflicted the wound.
36 Having dealt with the elements of the offences and intention in particular, the Judge turned to the issue of insanity. As I have said, there is no complaint about her Honour's directions in that regard. Nonetheless, it is pertinent to this ground to note that her Honour gave a clear and extensive direction on the second aspect of s 27, which deals with delusions. The second paragraph of s 27 provides that:
"A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist."
37 Her Honour correctly directed the jury that if the applicant's mind had been affected by delusions then he would be criminally responsible for his act only to the same extent as if the real state of things had been as he was induced by the delusions to believe. Thus, if the applicant's delusion was to the effect that he was being attacked by the deceased, then his conduct should be judged as if that were so.
38 Her Honour then pointed out that both psychiatrists accepted that "at the time of the offence [sic: killing]" the applicant was suffering from paranoid delusions to the effect that there were a group of people who were out to kill him and that the deceased was one of those people. She explained that the term "delusion" is wide enough to cover auditory hallucinations, so that when the jury were considering this issue they should take into account the evidence of the medical practitioners as to
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- what the applicant told them about voices speaking to him. She instanced the evidence of Dr Patchett that the applicant told him of hearing a voice (which he attributed to the deceased) saying "You're going through the mincer" and "If the Jews don't get you, I will", followed by a laugh. Her Honour told the jury that if they were satisfied that was an accurate account of an auditory hallucination, then they should work on the basis those words were indeed spoken by the deceased. They should also take into account any other delusion which they accepted the accused laboured under at the time and accept them as relevant facts. They would then consider whether, as a result of the applicant's state of mind as the jury found it to have been at the time, he acted in self-defence. Her Honour then went on to explain in some detail the elements of self-defence in circumstances of that kind.
39 Later in her directions her Honour turned to outline the State case and those matters being put by the defence. She reminded the jury that the defence position was that the prosecution had failed to prove beyond reasonable doubt that the applicant was the deceased's attacker but that even if the jury were satisfied that he was, then in any event he was of unsound mind at the time. She went on to say (t/s 1710):
"The defence has identified three areas central to its defence. The first is the identity of the attacker, the second is the issue of intent, and the third is the psychiatric evidence of insanity, and to some extent the psychiatric evidence also on the defence case impacts on your findings in relation to the first two issues; that is, whether or not the accused was the attacker and whether or not he had an intent or any of the relevant intents." (My emphasis).
40 Her Honour then reminded the jury of various aspects of the evidence and the arguments being advanced by the prosecution and defence in relation to them. In the course of that she said (t/s 1717):
"The second point that was raised as one of the three initial areas was one of intention but no specific submissions were made on that point, but you are asked to take into account, as I said, the accused's mental illness when considering that issue.
You certainly can take it into account but I'm not sure that there's a lot you can do with it in the absence of some expert evidence that a person suffering from chronic paranoid schizophrenia is somehow incapable of forming an intention.
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- There was no psychiatric evidence on that particular issue and I would suggest that it's not something that people without some level of expertise would actually know.
You can only look at what he did and draw inferences as to his capacity to function and form intention from his conduct, and as has been pointed out, he did form a number of different intentions on that day including going to town to the soup kitchen and going to the Marillac Centre.
I think in the absence of psychiatric evidence on this issue of intent it's difficult for you to conclude that he couldn't form an intent, but I think that you - in fact there is no evidence that he could not form an intent and you are really left with considering what he did in fact do, the actual circumstances, and considering the fact and taking into account at all times that he does suffer from this psychiatric illness." (Emphasis added).
41 Later again in her directions, after having dealt with other issues, her Honour turned specifically to the admissions made to the psychiatrists. She repeated that it was for the State to prove that the admissions were made and that they were a true account and not the product of a delusional belief. She reminded the jury that the evidence of Dr Srna was that the applicant told him he believed he was being persecuted by a large circle of agents including the government, Jewish people, and homosexuals and that the plot was to kill him and that he was engaged in some sort of secret army battle against those agencies. He told Dr Srna that there was a wide conspiracy against him and that over the weeks he became increasingly suspicious of the deceased, who he thought was plotting to kill him. He told Dr Srna that the deceased was behaving suspiciously and that several times he saw him talking to other people and saying things such as "Here he comes", referring to the applicant. He told the doctor he heard people saying "He will go slow" which took as meaning he was going to die a slow death and that the voices suggested to him that he should arm himself and take certain actions to prevent getting hurt. She reminded the jury that Dr Srna's testimony was that the applicant told him that three days prior to the stabbing he began carrying a hunting knife with him all the time for reasons of safety and to protect himself from what he perceived to be enemies and he believed there was a conspiracy against him and a plan to kill him and that eventually he decided to kill the deceased as he believed that he was an agent of the enemy planted there to kill him. According to Dr Srna's testimony, the applicant admitted that at the time of the stabbing he waited for the right moment when he and the
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- deceased were alone and then he pulled out the large hunting knife he was carrying and stabbed the victim in the throat in order to kill him. He then ran away and went to another location where the police later arrived and arrested him. Her Honour referred to more evidence of Dr Srna to similar effect and then said (t/s 1731):
"I mention that because as I have indicated to you, you will have to determine intent. You will have to determine whether or not at the time this act was committed there was an intention to kill, and you need to look at all this evidence in order to draw that sort of conclusion." (Emphasis added).
"He also gave an account of what the accused said that happened on the morning of the offence, that he met the deceased at the soup van, that he was hearing voices at the time, that he went down and sat on the bench after receiving his food with Mr Lewis, that they sat next to each other, he heard a voice which he believed to come from the deceased say, 'You're going through the mincer,' which is something he had heard on previous occasions although not necessarily coming from Mr Lewis. Then he heard, 'If the Jews don't get you, I will' followed by a laugh and that he believed he was going to be killed. He said, 'I just thought he was going to kill me. I thought everyone was out to get me. I thought I was going to be put through the mincer,' and he described how he pulled the knife out, lost it and stabbed him in the neck, that he said he wanted to disable the deceased and get away from the imminent danger that he felt that he was in. That would be evidence, if you accept it, of somewhat less than an intention to kill, just simply to disable. You have to weigh this up and reach your conclusions."
43 After some other brief observations her Honour pointed out to the jury that with respect to the insanity defence, it was agreed that the
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- applicant suffered from chronic paranoid schizophrenia and made some further observations on that, before explaining the way in which the possible verdicts would be put to the jury at the conclusion of their deliberations.
44 It is apparent from the foregoing that the jury could have been in no doubt from her Honour's directions, that the evidence of the applicant's mental state bore upon the issue of his intention and had to be taken into account by them, when they came to consider that question. But it is also true to say, as her Honour did, that the issue had never been approached in precisely that way in the evidence. The psychiatric evidence was all one way on this - and it was not only that the applicant had the capacity to form an intent, but that he actually did so. According to Dr Srna's evidence of what the applicant told him, it was an intent to kill; according to the evidence of Dr Patchett about what the applicant said to him, it was an intent to disable the deceased, that is, to cause him grievous bodily harm. There was nothing in the psychiatric evidence which could have been referred to as indicating a lack of capacity to form a specific intent or as casting doubt on whether the applicant did form such an intent. Dr Srna's evidence on the point is effectively summarised in the following extract from his report, confirmed as correct when quoted to him in cross-examination by then counsel for the applicant:
"As far as establishment of intent and mens rea in this case I have found no evidence that would point against a lack of intent or an absence of mens rea. As such, it is clear that the accused has actively planned and executed a violent act."
45 Against that evidentiary background, her Honour could sensibly have said little more than she did. This aspect of the ground is not made out.
46 In September 2003, some five months before the applicant's trial, the Medical Board found Dr Srna guilty of gross carelessness in the assessment and management of a patient. It made an order suspending his registration for a period of three months. In its reasons, the Board made findings adverse to Dr Srna's credibility. They were findings that he was a witness whose evidence in relation to critical matters required "the closest … scrutiny" and that he attempted to diminish in various respects the significance of what he subsequently appreciated were, or feared may have been found to have been, grave deficiencies in the discharge of his professional obligations. The Board said that attempt manifested itself both in confabulation in an unconscious sense, and in certain respects
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- which he perceived to be critical to his case, a deliberate decision to mislead the Board.
47 On 27 August 2004, some five months after the applicant's trial, Pullin J (as he then was) upheld in part an appeal by Dr Srna against the findings and sentence of the Board (Srna v The Medical Board of Western Australia [2004] WASCA 198). There were 17 grounds of appeal. Pullin J observed (at [34]) that the finding that the doctor had made a deliberate attempt to mislead the Board was one likely to have a serious impact on his professional reputation. In the event, Pullin J upheld ground 2 which concerned the findings made by the Board adversely to Dr Srna's credit, and ground 17, which was that the punishment of suspension was manifestly excessive. His Honour substituted a fine of $10,000.
48 As to ground 2, his Honour found that the Board "went too far and erred" in concluding that Dr Srna had attempted to deliberately mislead it and held that the evidence did not "at all" support the damaging finding that he deliberately attempted to do so.
49 Mr Watters, counsel for the applicant, puts it that his argument at its highest is that when the matter went to trial there had been findings by the Board against Dr Srna that he had deliberately misled it and that either, knowing that, the prosecution ought not to have called him, or alternatively ought to have disclosed that to the defence. In the latter event, it may have been a matter which trial counsel may have wished to explore in cross-examination of the doctor.
50 It is immediately obvious that this ground, as framed, both reverses the chronological sequence of events and ignores the result of Dr Srna's appeal to the Supreme Court. Far from it being the case that since the trial, Dr Srna has been discredited by the Medical Board, the situation is that the Board had made adverse findings on his credit some five months before the trial, but five months after the trial, his credit was restored (in that those findings were quashed).
51 The applicant seeks this Court to receive and rely upon "fresh evidence regarding the evidence of Dr Srna and question-marks now raised over his ability to give credible evidence". So formulated, the ground is wholly misconceived, because the situation as it is now revealed by the "fresh evidence" (I use the applicant's term without accepting it as a correct description) does not raise any question-marks about Dr Srna's ability to give credible evidence.
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52 The real thrust of this ground as it was argued is that the applicant was denied the opportunity of challenging Dr Srna's credibility in cross-examination based upon the adverse findings of the Medical Board as at March 2004.
53 Even looking at the position as it was at the date of trial, the material upon which the applicant seeks to rely, namely the findings of the Board given in September 2003, are neither "new", nor "fresh" evidence (for the distinction between which, see Mickelberg v The Queen (1989) 169 CLR 259, 301; Gallagher v The Queen (1986) 160 CLR 392; Lawless v The Queen (1979) 142 CLR 659). That material was in existence and available to the applicant by reasonable diligence; indeed the proposition that it was in the public domain is not challenged. But the question is always whether or not what occurred has resulted in a miscarriage of justice (s 689(1) of the Code, now s 30(3)(c) Criminal Appeals Act 2004 (WA); Gallagher (supra), per Gibbs J at 399).
54 Notwithstanding that, as is now known, the Board's findings with respect to Dr Srna's credibility were erroneous and have since been quashed, the question whether there was a miscarriage of justice in the applicant's trial has to be determined on the basis of the situation as it was in fact at that time. It must be determined therefore on the basis that when Dr Srna was giving evidence, there was then standing against him, a decision of the Board that he had been grossly negligent in the management of a patient and a finding that he had deliberately attempted to mislead the Board.
55 The question whether there has been a miscarriage of justice has to be examined in the context of the accused's right to a fair trial (Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563). In order for there to be a fair trial the State is obliged to disclose to the defence all material that is available to it that is relevant or possibly relevant to any issue in the case (R v Keane [1994] 2 All ER 478; s 103 Justices Act 1902 (WA) - now replaced and expanded by s 42 and s 95 of the Criminal Procedure Act 2004 (WA) which came into operation on 2 May 2005). This includes material which goes to the credit of State witnesses (R v Paraskeva (1982) 76 Cr App Rep 162).
56 In Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997, Malcolm CJ (with whom Pidgeon and Owen JJ agreed) set out with approval some passages from "Archbold" 1995, Vol 1, commencing with par 4.265 - 4.272 (at 9 - 11):
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- "In R v Brown it was held that the Crown is obliged to disclose to the defence:
'That which can be seen on a sensible appraisal by the prosecution:
(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real as opposed to fanciful, prospect of providing a lead on evidence which goes to (1) or (2).'
In Archbold at para 4.266 it is said that:
'The present law is therefore fairly clear, although there remain areas of inconsistency, uncertainty and practical difficulty, most notably as regards: the scope of the prosecution’s duty both in ascertaining all potentially disclosable matter and deciding upon its materiality in the absence of any adequate information as to the defence case; voluntary disclosure by the prosecution of matter which is, prima facie, covered by public interest immunity; disclosure of matter which goes only to the credibility of defence witnesses; and disclosure of matters held by third parties'.
In para 4.272 of Archbold it is said that:
'Matter which is "material" according to the above test must be disclosed, subject to the "exceptions" identified, post. This will include matter affecting the credibility of a prosecution witness. In R v Brown, ante, three examples were given:
(i) a previous inconsistent statement. Copies of such statements should be given to the defence, and it is submitted that it would not be sufficient simply to inform the defence of the existence thereof. Where the discrepancy relates to that part of a witness’s evidence which is evidence against one defendant only, the statement should be supplied to any other co-defendant
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- against whom the witness also gives evidence. (Baksh v R [1958] AC 167, PC);
- (ii) the fact that a reward has been requested by a prosecution witness (R v Taylor and Taylor, 98 Cr App R361, CA); and
(iii) previous convictions of prosecution witnesses (R v Collister and Warhurst, 38 Cr App R100, CCA) or any other matter which is adverse to the character of a prosecution witness; see further the authorities cited post para 4-342 et seq and para 8-127 et seq'."
57 The Chief Justice observed that it was noted in par 4.273 of Archbold that the above was by no means an exhaustive list and went on to say (at 11):
"It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel: R v Ward (1993) 93 Cr App R1. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides …".
58 The relevant law was discussed by Hodgson JA in R v Reardon (No 2) (2004) 60 NSWLR 454, stating at [54] that the principles in R v Keane (supra) and R v Brown(Winston) [1998] AC 367 should be taken as applying in New South Wales. At [48] Hodgson JA said that in those authorities the duty of a prosecutor to disclose information was defined in the following way:
"… the prosecution must disclose documents which are material … documents are material if they can be seen on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a
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- fanciful) prospect of providing a lead on evidence going to either (a) or (b)" (My italics).
59 Those authorities were also cited with approval in this State (R v Easterday; R v Ireland (2003) 143 A Crim R 154 (at [194] and [196]) and Bradshaw v The Queen (supra). The question then is what is material "relevant to an issue in the case". Hodgson JA (at [48] (supra)) approved the comment of the House of Lords in Brown, that "an issue in the case" must be given a broad interpretation and it is recognised that this includes material relating to the credibility of prosecution witnesses. There is no doubt that evidence or prior convictions which go to credit must be disclosed to the defence, but the situation might be thought less clear when the material going to credibility is something other than a conviction.
60 The test as articulated in Keane and Brown was formally adopted by the New South Wales Court of Criminal Appeal in R v Livingstone (2004) 150 A Crim R 117. The issue in that trial was the credibility of the witnesses and therefore, material which cast doubt on their credibility was relevant and should have been disclosed to the defence (see Simpson J at [51]).
61 In Keane (at [1994] 2 All ER 478 at 775) Lord Hope of Craighead affirmed the statement of Steyn LJ in the Court of Appeal that:
"In a criminal case the Crown is under a duty to give disclosure of significant material which may affect the credibility of a Crown witness"
- of which the most important example was material disclosing previous convictions of the witness. In Livingstone the Court affirmed the test proposed by the New Zealand Court of Appeal in Wilson v The Police [1992] 2 NZLR 533, referring to Keane, that as to the kind of conviction within the scope of a duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to show confidence in the reliability of the witness and that the test may be capable of being applied to other collateral material which could affect the credibility of a prosecution witness.
62 Clearly enough, the finding of a statutory professional disciplinary tribunal that in giving evidence in oath before it, the witness deliberately attempted to mislead the tribunal, was significant material which may have affected the jury's assessment of Dr Srna's credibility on the applicant's trial. Whether that led, or may have led, to a miscarriage of
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- justice will depend first upon the importance of Dr Srna's evidence and whether there was any issue of credibility with respect to it.
63 Dr Srna was an expert witness. His evidence went to matters of fact, including what was written in hospital records, his observations of the applicant, and importantly, his account of what the applicant had said to him, and ultimately to his professional opinion of the applicant's psychiatric condition.
64 One feature which was critical to both Dr Srna's opinion (in conflict with that of Dr Patchett) that the applicant did have the capacity to know what he was doing was wrong, and on the general issue of specific intent, was Dr Srna's evidence of what the applicant told him in interview. The most obvious example of that was his evidence that the applicant said that when he struck the deceased with the knife he intended to kill him. That was the only direct evidence in the case of an intention to kill.
65 Dr Srna had seen the applicant only once. He made notes sometime later of what the applicant said. Although it was not put directly to Dr Srna at any point that the applicant had not in fact said that to him, he was cross-examined on the accuracy of his notes and recollection of the conversation. Counsel sought to elicit evidence (eg see AB 3/685) that the applicant had never said that to Dr Patchett nor anyone else, despite extensive discussions and interviews, in a clinical setting or otherwise, but that was objected to as irrelevant. The objection was upheld on the ground that even if it were the fact the applicant had never made that admission to anyone else, that did not mean he did not make it to Dr Srna. Something of the point did come out, however, in a non-responsive answer by Dr Srna to a question in cross-examination about whether the information given by the applicant about the offence could all have come from information acquired by him from the police rather than his own memory. Dr Srna's answer was (at t/s 1537):
"---Well, certainly in comparison to Graylands Hospital notes there was a discrepancy in what he told other doctors and what he told me in terms of his intentions and plan and waiting for the right moment, for instance. I could not find any of that in Graylands Hospital notes. My explanation for that was that he perhaps was not prepared to reveal that to people who he perceived as part of the government, but he had no problems in telling me about it. That was the ready explanation."
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66 Had counsel sought to cross-examine Dr Srna on the Medical Board's findings against him, and if necessary, to prove them, he would have been entitled to do so. Had that material been before the jury, it may well have caused them to have had a reasonable doubt about whether or not the applicant had in fact told Dr Srna that when he stabbed the deceased he intended to kill him. Had they reached that point the jury may well not have been able to be satisfied beyond reasonable doubt the applicant did have an intent to kill at the time. That would have resulted in an acquittal on the charge of wilful murder.
67 In this context, it is not enough for the prosecution to say simply that the information was in the public domain, or that the applicant should have made inquires which would have revealed it. The defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility and that if there was any material showing otherwise, the State would disclose it. The failure of the State to do so deprived the applicant of the opportunity to cross-examine Dr Srna on an issue which bore directly on his credibility, in circumstances in which the jury's assessment of that may have led to a different verdict. There was accordingly a miscarriage of justice. I would therefore grant leave and uphold ground 3 in this respect, notwithstanding the way the ground is framed.
68 But to say that is not to foreclose the outcome of the appeal. Section 30(2) of the Criminal Appeals Act 2004 (WA) provides that unless the Court of Appeal allows an appeal, it must dismiss it. Subsection 3 provides that the Court must allow the appeal if in its opinion the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; the conviction should be set aside because of a wrong decision on a question of law by the Judge; or there was a miscarriage of justice. Subsection 4 provides that even if a ground of appeal might be decided in favour of the offender, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
69 The proviso is in essentially the same terms as its predecessor, which was contained in s 689(1) of the Criminal Code.
70 In this case, were the appeal to be allowed on this ground, it would not result in a verdict of acquittal of wilful murder. That is because there was evidence on which the jury could properly have arrived at that verdict. There would have to be an order for a re-trial on that charge. On
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- the re-trial, the State would no doubt again call Dr Srna. Were the State to do so, in light of the outcome of the appeal before Pullin J, there would be no opportunity for the defence to cross-examine him on the finding of the Medical Board adverse to his credit. The defence would be in exactly the same position as it was on the original trial. The evidence would be the same as it was then. There would be no scope for any different directions to the jury going to this matter. In these circumstances, it cannot be said that the failure of the prosecution to disclose the Medical Board findings and hence the lack of opportunity of the defence to cross-examine Dr Srna on them, resulted in a substantial miscarriage of justice. So far as this ground is concerned, I would dismiss the appeal because no substantial miscarriage of justice has occurred.
Grounds 6 and 7 - items found at the scene; cleaning of the park
71 In his outline of submissions, the applicant's counsel simply repeats ground 6. All that is said about ground 7 in the outline is that the Judge failed adequately or at all to deal in her summing-up with the inferences, consistent with innocence, that were open to the jury on the evidence concerning the cleaning of the park, which may have removed the items referred to in ground 6.
72 In his oral submissions, counsel really said no more than that whilst the Judge did mention the evidence about the bag and other items found at the park and identified with the applicant, she did not give the jury "any examples of any inference or how they should use an inference" and the direction given was therefore "not adequate". Counsel was unable to articulate the direction he contends ought to have been given, but so far as I am able to understand what is put, it is that her Honour ought to have directed the jury it was for them to consider whether the inference that the items had been left there on the day of the killing was the only inference reasonably open or whether it was reasonably possible that he had left them there the day before, notwithstanding other evidence that the park was cleaned prior to the killing.
73 Although counsel did not express it this way, if his submission is that the "inference direction" which should have been given is that the jury could not have drawn the inference that the items were left there on the morning of the killing unless satisfied of that beyond reasonable doubt, the submission would be incorrect.
74 As counsel rightly pointed out, this was largely a circumstantial case - at least as to the identity of the killer.
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75 It is not necessary for every inference, in a circumstantial case leading ultimately to a conclusion of guilt, to be the only inference reasonably open, or to be proved beyond reasonable doubt. In very many cases there will be a combination of facts to be inferred from the circumstances, none of which individually is capable of being proved beyond reasonable doubt, but which collectively lead a jury to a conclusion of the guilt of the accused, to that degree of satisfaction. The High Court has made it clear that it is only intermediate facts which are indispensable to a conclusion of guilt, that must themselves be proved beyond reasonable doubt (Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 535 - 563; Shepherd v The Queen (No 5) (1990) 170 CLR 573, 576; and see Abbott v The State of Western Australia [2005] WASCA 42, [69] - [74]). Thus, it is a misdirection to tell a jury simply that if there are competing inferences equally open, they cannot draw that which is adverse to the accused (R v Wedd (2000) 115 A Crim R 205 per Murray J at [40] - [41]); such a direction would be apt only in relation to inference of a fact indispensable to guilt. The law was explained in the judgment of a five member Bench of the Western Australian Court of Criminal Appeal in Buttsworth v The Queen (2004) 29 WAR 1. Referring to the judgment of Anderson J (with whom Pidgeon and Wallwork JJ agreed) in Cook v The Queen (2000) 22 WAR 67, the Court said (at [42] - [44]):
"Anderson J then went on to discuss the directions given by the trial judge, during the course of which he noted that the jury had been given the instruction that they may not use the evidence of sexual behaviour other than that charged unless satisfied beyond reasonable doubt that it occurred. Anderson J considered that direction to be too favourable to the applicant. His Honour noted that this was, after all, circumstantial evidence and there is no requirement that particular circumstantial facts be proved beyond reasonable doubt, except where the facts in question provide links in a chain of facts leading to a conclusion of guilt, when the application of Shepherd would require a direction about the burden of proof. Except in that case, Anderson J held (at [75]) that, 'It is generally sufficient in this kind of case that the jury be told that, unless they find the evidence of extraneous conduct reliable and believe it to be true, they should disregard it'.
In our opinion, the decision of this court in Cook, consistently with what was said by the High court in Gipp, provides an accurate statement of the law in relation to the directions required, if any, as to the burden of proof of conduct of an
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- accused person extraneous to the offence charged, admitted because of its relevance to the proper evaluation of the evidence which directly goes to the proof of that offence, or which is itself relevant to the proof of that offence.
Generally, there is no need to do more than to refer to the need, before the jury has regard to the extraneous conduct, to find the facts established by truthful and accurate evidence. Only if the evidence has the sort of direct relevance to the proof of facts constituting the offence charged that it might be regarded as providing links in a chain of proof of guilt, should the jury be specifically directed that they may not so use the evidence in question unless satisfied of the facts established by that evidence beyond reasonable doubt. In this case it is apparent that in this regard the trial judge made no error of law." (My emphasis).
76 The evidence the subject of this ground was given by Ms Ngaire Una Gallagher who is the Supervisor for Parks and Gardens in the central business district for the Perth City Council and held that position in November 2000. As such, her role was to instruct her staff on the day to day work in the parks to ensure rubbish was picked up, the garden beds were cleaned and maintained, lawns were mowed and any other garden maintenance work done. That included the collection of rubbish and litter in the park areas around the Supreme Court and Esplanade environs. Those particular areas were classed as "hot spot areas" because they were so close to Council House and if things were not done properly there, it would soon be brought to her attention. She described the routine before and after 6 November 2000. The work was done by a contractor. He would begin at 6 am and drive around on a small vehicle with a tray on the back (described as a "Gator") rather like a golf buggy but with no hood or canopy. The contractor's duties included picking up rubbish, emptying the rubbish bins, picking up any foreign objects off the park and clearing up litter. At that time of the year the work was done Monday to Friday between 6 and 7 am. The winter months were different, but that did not begin until about April.
77 Ms Gallagher said in-chief, that as supervisor she always checked the work done.
78 In cross-examination she agreed the contractor was only filling in because the normal worker was on compensation at the time. Asked whether she went to check if the work was carried out correctly on
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- 6 November, she responded that she checked "just about every day" by going around her areas and there was not much that she would miss. She was asked about the routine and the order in which the work was done. It was put to her that she did not have a note in her diary of actually checking that area on 6 November, to which she replied that she did not put that sort of note in her diary because it was an automatic thing that she did. She was not asked any questions about whether or not in her experience, rubbish had been left behind after the cleaner had been through.
79 Here the Judge gave a full direction on circumstantial evidence in the general part of her summing-up. She first explained circumstantial evidence and inferences. She told the jury that circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded and that before they could convict on circumstantial evidence, the circumstances must not only be consistent with guilt, but inconsistent with any other reasonable conclusion. She directed the jury that the fact they might find they did not accept some of the evidence did not mean the case would automatically fail; if they were persuaded to the appropriate standard, they could convict on a particular piece of evidence notwithstanding they were not prepared to accept other pieces of evidence; but nevertheless, that piece of evidence must be of such a nature as to convince them beyond reasonable doubt of the accused's guilt. She pointed out that circumstances can tell a number of different stories and if different inferences could be drawn from the same set of circumstances, then the inference would be equivocal and in that event the jury could not be satisfied of it beyond a reasonable doubt. Her Honour went on (t/s 1687):
"So to be satisfied of the ultimate fact sought to be proved by circumstantial evidence you just ask yourselves whether based on the evidence the inference actually exists and clearly and so completely overcomes all other inferences or hypotheses as to leave no reasonable doubt of guilt in your mind. As I have said, if there are other rational inferences available from the facts that you find, then you cannot be satisfied beyond a reasonable doubt.
As I have said, circumstantial evidence is a combination of factors which may not individually prove the fact in issue but collectively may do so. As I have said the crown [sic] relies on a number of pieces or categories of evidence as part of its case and, as I have said, if you don't accept one of those, it doesn't
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- mean that the entire case fails. It simply means that you need to then look at the balance of the evidence to see if it satisfies you to the requisite standard."
80 Later, dealing with particular aspects of the evidence, her Honour referred to that which concerned rubbish in the park. As to that, she said (t/s 1713):
"The location of the bag under the seat is given as an explanation for why, if left earlier, it had not been collected by the council contractor or seen and removed by Mrs Gallagher during her inspection round. I note in passing that the bag is white and it's not a small item like, say, a pie wrapper or a bottle top and it's a matter for you but you may think it's more readily seen, but certainly stranger things have happened than a council rubbish collector leaving something behind so it is a matter that you should carefully consider. It's certainly not unknown that rubbish has been left in a public place for more than a day or so."
81 This was a fair reference to the evidence. Indeed, it was favourable to the applicant in that her Honour suggested Council rubbish collectors may leave some rubbish behind and that it is "not unknown" that rubbish has been left in a public place for more than a day or so - even though the evidence had not gone that far.
82 This was not evidence which could, on any view, have been an essential step in leading to a finding the applicant was the killer. It was no more than one of a number of circumstances which together pointed to that conclusion. The jury were entitled to act on it if they believed the items did bear the applicant's fingerprint and that they had been left there on the morning of the killing. It was not necessary they be satisfied of that beyond reasonable doubt. The directions given by her Honour were correct and sufficient. There is no substance to these grounds.
Ground 8 - aggregation of errors
83 Given my conclusions above in respect of the preceding grounds of appeal, there is no aggregation of errors which together can be said to have led to a miscarriage of justice. This ground therefore fails.
Conclusion
84 I would grant leave to appeal in relation to ground 3, but would otherwise dismiss the appeal against conviction.
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Application for extension of time for leave to appeal against sentence
85 The applicant was sentenced on 10 November 2004 to life imprisonment with a minimum term of 17 years before becoming eligible for parole. The sentence was backdated to commence on 8 November 2000.
86 The time for filing a notice of application for leave to appeal expired on 1 December 2004 (s 695(1) of the Criminal Code). The application was filed on 16 December 2004 and so was only 15 days out of time.
87 There is an affidavit in support from Mr Gary Huggins, the applicant's solicitor, sworn 14 December 2004 in which he deposes that the application was not lodged in time because he sought to have counsel's opinion before lodging the necessary papers and that once counsel's opinion was obtained, he made arrangements to prepare and file the necessary documents forthwith.
88 The time is short and the application is not opposed by the respondent. I would grant the extension of time.
89 There is only one ground of appeal. It is that:
"The learned Judge fell into error and the sentence imposed was manifestly excessive when:
1. The learned Judge, once determining the offenders [sic] mental and psychiatric condition (together with his personal antecedents) was such that a strict security life imprisonment was not warranted, failed to place sufficient weight upon these factors again when determining the minimum period to be served before the offender is eligible for parole."
90 The submissions advanced in support of this ground were, in summary, that in holding that a sentence of strict security life imprisonment was not appropriate because the offence was "obviously" committed whilst the applicant was suffering from a serious mental illness and whilst he was suffering a distorted perception of reality, her Honour then placed undue emphasis in sentencing him upon the fact there had been no real remorse expressed by him (notwithstanding his mental illness) and by attaching too much weight to the victim impact statements.
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91 Where an offender is convicted of wilful murder, the Judge must impose a sentence of either strict security life imprisonment or life imprisonment (s 282 of the Criminal Code).
92 Section 90(2) of the Sentencing Act 1995 stipulates that a court that sentences an offender to life imprisonment for wilful murder is required to set a minimum term of at least 15 and not more than 19 years that the offender must serve before being eligible for release on parole. Fixing the period within those parameters is an exercise of judicial discretion, which is to be done by applying the ordinary principles of sentencing (R v Sherratt (2000) 112 A Crim R 177).
93 In Sherratt the offender was a 19-year-old female with limited intellectual capacity. She had been convicted of murder and was sentenced to the mandatory sentence of life imprisonment with a minimum period of 12 years before eligibility for parole. Her co-offender was convicted of wilful murder. The victim was a 14-year-old boy who the offenders had robbed of his motor cycle and other equipment before the co-offender killed him. The applicant had a subsidiary role in the killing and although she was a party to the acts, did not intend the victim's death, although she did intend grievous bodily harm.
94 On an application for leave to appeal on the ground the minimum non-parole period of 12 years was manifestly excessive, Murray J (with whom Pidgeon J agreed) held, in granting leave but dismissing the appeal, the sentencing Judge had made no error in fixing a 12 year minimum, notwithstanding the reduced intellectual capacity of the applicant.
95 His Honour usefully considered the relevant authorities going to the principles to be applied in the setting of a minimum term before eligibility for parole within the context of a mandatory fixed term. His Honour referred to a number of authorities including Power v The Queen (1974) 131 CLR 623, as establishing that the determination of the minimum term is to be made according to accepted principles of sentencing, including that the punishment of imprisonment (including during the non-parole period) is punishment directed towards reformation and that both general and particular deterrence would be relevant to the fixing of the period.
96 His Honour drew from a consideration of Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433; and R v Inge (1999) 108 A Crim R 281 the conclusion that where a mandatory sentence of life imprisonment or strict security life imprisonment is imposed, the determination of the minimum term involves a discretionary judgment "…
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- which will be informed by applying to the case the ordinary principles of sentencing" ([39]).
97 At [42] his Honour said:
"Where the court decides that a minimum period is to be fixed, it remains in this context, as it was conceived to be in the context of the imposition of a finite sentence, the period which in the judgment of the court is the period which the offender must serve in prison before being eligible to be released on parole, if that should be the decision which the Governor makes. In fixing that period the court is to have regard to the circumstances of the offence and the circumstances personal to the offender, whether they be aggravating or mitigating in their effect, in so far as they bear upon the length of the period which must be served before the offender might be released. The protection of the community will be an important consideration as will the offender's prospects of rehabilitation, bearing in mind that the purpose of punishment, including the fixing of the minimum period, is not only the protection of society from this offender and such offences generally, but also the ultimate reformation of the prisoner."
98 His Honour recognised that the exercise involves an inevitable element of prognostication on the part of the sentencing Judge. In that regard his Honour (at 187) referred to the following passage from the judgment of Kirby J in Inge (at 294):
"… it is necessary for the judge to decide when it will first be appropriate to contemplate the steps that may lead to the prisoner's conditional freedom in the form of a release on parole. This must be done viewed from the moment of sentencing, unaware of what may later occur and conscious of the importance of the decision both for the prisoner and for society."
99 In light of that analysis, Murray J opined that it seemed to him that to frame the ground of appeal so as to assert that the decision of the sentencing Judge in respect of the minimum period fixed was "manifestly excessive" is to argue for a proposition which is incorrect as a matter of law. As his Honour pointed out (at [44]) the period of 14 years statutorily prescribed as the upper limit for the minimum term to be set in respect of a conviction for murder is not to be taken as being reserved for the worst
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- conceivable case of murder. It was erroneous to treat the process of fixing the minimum period rather as if it were the imposition of an effective finite term of imprisonment because that is not the basis upon which the minimum period is to be fixed.
100 In that case his Honour concluded that the minimum of 12 years set by the sentencing Judge was appropriate. The gravity of the circumstances which led to the death of the victim, in which the applicant consciously participated intending that the victim suffer grievous bodily harm, required a substantial minimum period. Furthermore, whilst the applicant's prospects of rehabilitation were good, the mitigation to be found in her personal circumstances could not substantially detract from the length of the minimum period once the sentencing Judge concluded, as was well open to him, that her moral culpability was not substantially reduced by reason of her intellectual deficit or other personal circumstances.
101 In this case, her Honour found that the applicant's moral culpability was reduced by the fact that the offence was committed whilst (and because) he was suffering from a severe psychiatric disorder, notwithstanding that was not such as to relieve him from criminal responsibility.
102 The relevance of psychiatric illness in the sentencing exercise was discussed by the High Court in Channon v The Queen (1978) 20 ALR 1. At 4 - 5 Brennan J said:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender’s psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe."
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103 Brennan J pointed out that the guidance afforded by principle to the exercise of a sentencing discretion is that the necessary and ultimate justification for criminal sanctions is the protection of society from criminal conduct. Judicial punishment is purposive and is inflicted for the protection of society and not to an extent beyond what is necessary to achieve that purpose.
104 Deane J noted (at 21) that the existence of a psychosis may be of direct relevance to the degree of culpability, and that:
"If it involves a propensity to violent or serious crime, it may raise considerations in some circumstances, of the protection of the public from the offender which can legitimately result in a heavier sentence being imposed than would be the case if the psychosis with such propensity had not been present. The likelihood of successful treatment in prison of such a psychosis is, however, only of relevance in the determination and imposition of sentence to the extent that regard may properly be had to it within the confines of larger considerations or objectives which are properly relevant. For example, the likelihood of such successful treatment may be relevant to modify the adverse effect upon sentence which a psychosis involving a propensity to serious or violent crime might, by reference to the legitimate objective of protecting the community, otherwise have." (Citations omitted).
105 Toohey J agreed (at 28) that where an offender is, by reason of a psychiatric abnormality, a danger to the community, the existence of that condition will ordinarily be an important consideration in determining the appropriate penalty.
106 In Veen v The Queen (No 2) (1987) 164 CLR 465 the majority (Mason CJ, Brennan and Toohey JJ) said (at 476 - 477):
"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral
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- culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
107 In R v Tsiaras (1996) 1 VR 398, the Victorian Court of Appeal held (at 400) that psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways:
(1) it may reduce the moral culpability of the offence as distinct from the offender's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective;
(2) the offender's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
(3) an offender suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence;
(4) specific deterrence may be more difficult to achieve and is often not worth pursuing as such;
(5) psychiatric illness may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
108 Tsiaras and other relevant authorities were discussed and applied by Kennedy J in R v Dalgety [2000] WASCA 10 at [17] - [21].
109 Here her Honour commenced her sentencing remarks by describing the commission of the offence. She described the attack as swift and merciless. She said the applicant left his victim clutching his throat and staggering towards the roadway to obtain some help, but that help was not to come from the applicant because he immediately and calmly turned his back on his victim and walked away. She said that following the murder of the deceased, the applicant acted in ways designed to minimise the risk of apprehension including denying any involvement in the offence when interviewed by police and that he expressed no remorse.
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110 Her Honour then turned to matters personal to the applicant and spent some considerable time outlining the long-term deterioration of his mental health. She then said (t/s 1770):
"In view of the verdict, it is clear that the jury did not accept that you were legally insane at the time of the commission of the offence. However, there was abundant and undisputed evidence that you suffer from a mental illness with a well-established diagnosis of schizophrenia. I'm satisfied for the purposes of sentencing that you were acutely unwell at the time of the murder of Mr Lewis. The undisputed psychiatric diagnosis is that at the time you were suffering from chronic paranoid schizophrenia. Indeed, despite earlier medical intervention, you remained acutely psychotic in the community for some time preceding the offence.
Dr Patchett your treating psychiatrist gave a detailed and graphic account of the relentless nature of the delusional beliefs and auditory hallucinations that plagued your daily existence. According to Dr Patchett, you lived in a siege world, fearful of almost everyone, even your parents. Dr Patchett expressed the view, which I accept, that if not for your psychosis, you would not have stabbed Mr Lewis that day."
111 Her Honour referred to the victim impact statement, noting the effect of the killing upon the victim's family was devastating.
112 Her Honour referred to the psychiatric and pre-sentence reports and accepted that the applicant's employment and social functioning had been progressively compromised by his mental illness. She acknowledged the fact that the offence was driven by his paranoid thoughts decreased his personal culpability, but added that unfortunately it also made him dangerous if his condition was not being treated and in particular if he was not taking his medication.
113 Having concluded that a term of strict security life imprisonment was not an appropriate disposition, particularly having regard to his severe psychiatric condition at the time, her Honour said that nonetheless she considered the circumstances of the offence and its gravity - a savage unprovoked fatal knife attack on a person sitting in a public place - to be an extremely serious offence of its type. She added (t/s 1773):
"However, as I have indicated, your antecedents and personal circumstances, the fact that you suffer from a severe psychiatric
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- disorder which caused you to act as you did and but for which the event would not have happened, in my view justify a sentence less than strict security life."
114 Her Honour then concluded (t/s 1773 - 1774):
"To complete the sentencing process I must set a minimum period of imprisonment in the range of 15 to 19 years before you are eligible for parole. In setting this period I take into account the matters personal to you to which I have referred in some detail and in particular the fact that you have no relevant history of offending, in particular no history of violence. The fact that you suffer from a serious psychiatric disorder which was the basis of the offending and that if treated properly and that treatment is adhered to you have the potential to become a useful member of society has also been taken into account by me.
However, I also take into account the contents of the victim impact statements to which I have referred and the fact that there has been, in my view, no expression of real remorse on your part in relation to the death of Mr Lewis. The grief attributed to you by Dr Patchett and his colleagues when improvement in your condition at the enormity of your crime became apparent to you does not necessarily equate to remorse. However, I have been advised by your counsel that you are indeed remorseful and notwithstanding the comments I have just made, it appears that at least at this stage you have realised the enormity of what you have done, albeit driven by your mental illness. In any event, in the overall circumstances of this offence I do not see the issue of remorse as being crucial to the disposition."
- Her Honour then imposed the sentence I have mentioned.
115 As noted by her Honour, the applicant had no relevant criminal history at all, notwithstanding the nature of his psychiatric illness. That should have weighed heavily in the prognostication of the likelihood of him being a danger to the community in future. Apart from this offence, as horrific and serious as it was, he had not demonstrated any propensity for violence. Her Honour took the view that the applicant's paranoid psychosis made him dangerous if his condition was not being treated and in particular, if he was not taking his medication. That conclusion was no doubt correct, but the obverse of it is that he is not a danger if being
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- treated and is taking his medication. It is difficult to see how her Honour might have prognosticated that 17 years' imprisonment would be long enough to sufficiently reduce the risk the applicant would pose to the community in this respect, but 15 years would not. She expressly recognised and accepted that if the applicant's illness were treated properly and he adhered to his treatment, he had the potential to become a useful member of society.
116 Perhaps the most significant finding which bears on the setting of the minimum term, is that the offence was committed whilst the applicant was suffering from an episode of paranoid psychosis and was directly caused by it. As her Honour acknowledged, that circumstance decreased his moral culpability. But it was such a significant factor, combined with the nature of his illness and his susceptibility to treatment which would substantially reduce, if not remove, the risk to society posed by the applicant, which in my view, made a minimum term of more than 15 years beyond that required to achieve the purposes of criminal punishment. In this respect the minimum term of 17 years was manifestly excessive.
117 I would accordingly grant leave to appeal, allow the appeal against sentence, quash the order that the applicant serve a minimum term of 17 years before being eligible to be considered for parole, and order in lieu thereof that he serve a minimum term of 15 years' imprisonment.
118 PULLIN JA: I have read the reasons of Roberts-Smith JA dealing with the application for leave to appeal against conviction. I agree with those reasons. I therefore agree that the application for leave to appeal against conviction should be dismissed.
119 However, I differ from his Honour's decision on the application for leave to appeal against sentence. I detect no error in the sentencing Judge's decision to set 17 years as the minimum period to be served before the applicant was eligible for parole. The ground of appeal concerning sentence reads:
"The learned Judge fell into error and the sentence imposed was manifestly excessive when:
1. the learned Judge, once determining the offender's mental and psychiatric condition (together with his personal antecedents) was such that a strict security life imprisonment was not warranted, failed to place sufficient weight upon these factors again when
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- determining the minimum period to be served before the offender is eligible for parole."
120 The ground therefore concerns only the setting of the minimum period of imprisonment before eligibility for parole. The permissible range was 15 to 19 years and her Honour settled upon 17 years.
121 Her Honour said:
"To complete the sentencing process I must set a minimum period of imprisonment in the range of 15 to 19 years before you are eligible for parole. In setting this period I take into account the matters personal to you to which I have referred in some detail …"
122 One of the matters personal to the applicant to which her Honour referred was his psychiatric disorder. Insofar as the ground contends that her Honour did not give this "sufficient weight", it is assertion only. Her Honour took it into account and it is, in my opinion, impossible to say her Honour did not give it proper weight.
123 Further, it is my opinion that the setting of a period of 17 years before eligibility for parole (rather than that the setting of 15 years) did not produce a sentence which was manifestly excessive.
124 I would therefore refuse the application for leave to appeal against sentence.
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