Gassy v The King

[2023] SASCA 90

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

GASSY v THE KING

[2023] SASCA 90

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stein)

24 August 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Application for permission to appeal against sentence.

The applicant was found guilty by a jury of the murder of Dr Margaret Jean Tobin at Adelaide on 14 October 2002.  The applicant represented himself at trial, on appeal and before the High Court and his appeal against conviction was allowed. 

Following a retrial the applicant was again found guilty by a jury of murder.  On 5 June 2009 the applicant was sentenced by Duggan J to imprisonment for life, together with a non-parole period of 30 years, commencing on 9 November 2002 when the applicant was taken into custody. 

The applicant seeks orders that the sentence be quashed and that a new sentence of life imprisonment with a 20-year non-parole period be substituted.  The applicant requires an extension of time in which to bring the appeal, the sentence having been imposed nearly fourteen years ago.

The Court held (dismissing the application to adduce further evidence, the application for an extension of time and the application for permission to appeal sentence):

1.The ground that the applicant was denied procedural fairness insofar as he was not apprised of his legal rights concerning sentencing before Duggan J in 2009 had to be viewed in the context that the applicant had conducted a remarkable amount of litigation without legal representation, and had made detailed, cogent submissions in mitigation of sentence before Vanstone J.

2.The need for finality in the administration of criminal justice is an important consideration which, in the circumstances of this case, weighs heavily against granting the application for an extension of time. 

3.Unless an applicant can identify some basis to conclude that there is a real prospect of a miscarriage of justice, for example because his proposed grounds of appeal are meritorious, there is ordinarily a strong public interest against re-opening a sentence which was imposed nearly 14 years ago. 

4.The applicant’s proposed grounds of appeal are without merit.

Criminal Procedure Act 1921 (SA) ss 157 and 158, referred to.
Abram v Bank of New Zealand (1996) ATPR ¶41,507, 42,347; Athans v The Queen [2022] SASCA 71; Austin v The Queen (1996) 87 A Crim R 570; Cachia v Hanes (1994) 179 CLR 403; Cooling v Steel (1971) 2 SASR 249; Crampton v The Queen (2000) 206 CLR 161; Dietrich v The Queen (1992) 177 CLR 292; Elias v The Queen (2013) 248 CLR 483; Gassy v The Queen (2008) 236 CLR 293; Gassy v The Queen [2010] HCASL 189; Gould v Police [2005] SASC 297; Hittmann v Police (1999) 202 LSJS 132; Hoare v The Queen (1989) 167 CLR 348; Hopfner v Flavel (1990) 48 A Crim R 149; House v The King (1936) 55 CLR 499; In Marriage of Johnson (1997) 139 FLR 384; Inge v The Queen (1999) 199 CLR 295; Jackamarra v Krakouer (1998) 195 CLR 516; Jamal v Director of Public Prosecutions (DPP) [2013] NSWCA 355; Kelly v Westpac Banking Corporation [2014] NSWCA 348; Klosowski v The Queen [2021] SASCA 85; Lee v Western Australia [2022] WASCA 137; Lindsay v The Queen (2015) 255 CLR 272; Macfarlane v The Queen [2022] SASCA 46; MacPherson v The Queen (1981) 147 CLR 524; Malouf v Malouf [2006] NSWCA 83; Markarian v The Queen (2005) 228 CLR 357; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Neill v Police [1999] SASC 270; Pezos v Police (2005) 94 SASR 154; Phillipou v The Queen [2020] SASCFC 21; R v Balchin (1974) 9 SASR 64; R v Brain (1999) 74 SASR 92; R v Brown [1963] SASR 190; R v C (2004) 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Gassy [2005] SASC 68; R v Gassy (No 2) [2005] SASC 491; R v Gassy (No 3) [2005] SASC 496; R v Gassy (No 4) [2010] SASC 124; R v Gidley [1984] 3 NSWLR 168; R v Ironside (2009) 104 SASR 54; R v Kikidis (2012) 112 SASR 148; R v Lutze (2014) 121 SASR 144; R v McIntee (1985) 38 SASR 432; R v O’Shea (1982) 31 SASR 129; R v Parenzee (2008) 101 SASR 469; R v Peet [2018] SASCFC 91; R v Smith (1987) 44 SASR 587; R v Stewart (1984) 35 SASR 477; R v Valesic (2018) 132 SASR 250; R v White (2003) 7 VR 442; Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497; Reisner v Bratt [2004] NSWCA 22; The Queen v De Simoni (1981) 147 CLR 383; The Queen v Pahuja (No 2) (1989) 50 SASR 551; The Queen v Stewart (1984) 35 SASR 477; Veen (No 2) v The Queen (1998) 164 CLR 465; Veen v The Queen (1979) 143 CLR 458; Weininger v The Queen (2003) 212 CLR 629, considered.

GASSY v THE KING
[2023] SASCA 90

Court of Appeal – Criminal: Livesey P, David JA and Stein AJA

THE COURT:

Introduction

1. The applicant has applied for permission to appeal against a sentence imposed nearly 14 years ago, after he was found guilty by a jury of the murder of Dr Margaret Jean Tobin at Adelaide on 14 October 2002. 

2. On 5 June 2009, the applicant was sentenced by Duggan J to imprisonment for life together with a non-parole period of 30 years commencing on 9 November 2002 when the applicant was taken into custody. 

3. The applicant seeks orders pursuant to ss 157 and 158 of the Criminal Procedure Act 1921 (SA) (the CPA) that the sentence be quashed and that a new sentence of life imprisonment with a 20-year non-parole period be substituted.  Were that sentence to be substituted, the applicant would now be eligible for parole. 

4. The applicant is not legally represented and has often represented himself in his criminal proceedings. The applicant’s murder conviction followed a conviction at an earlier trial.[1]  After that first trial, in which he generally represented himself,[2] the applicant was granted special leave to appeal to the High Court.  The applicant represented himself before the High Court and his appeal was allowed.  The High Court quashed the applicant’s conviction and sentence and ordered that there be a new trial .[3] Following the retrial in 2009, [4] and the jury’s verdict of guilty, the applicant’s appeal against conviction was dismissed.[5]  After the applicant was sentenced in 2009, he did not then apply for permission to appeal against sentence and has never previously applied.

   [1]     The earlier trial was preceded by unsuccessful applications for bail, R v Gassy [2003] SASC 348 (Gray J), R v Gassy [2004] SASC 202 (Gray J), and pre-trial rulings regarding the admissibility of certain evidence, R v Gassy [2004] SASC 338 (Vanstone J).

   [2]     The applicant was granted leave to appeal, R v Gassy [2005] SASC 68 (Duggan J), R v Gassy (No 2) [2005] SASC 491 (Debelle, Bleby and White JJ), and an application for special leave to appeal to the High Court was dismissed. The appeal against conviction was dismissed, R v Gassy (No 3) [2005] SASC 496 (Debelle, Bleby and White JJ).

   [3]     Gassy v The Queen (2008) 236 CLR 293. The High Court held that the trial judge had erred in refusing to allow the applicant to be represented on a voir dire, that there was error in the trial judge’s directions to the jury and the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (as then in force) could not be applied.

   [4]     Before the retrial the applicant applied unsuccessfully for an order that relevant questions be reserved for consideration and determination by the Full Court, Application for Reservation of Questions of Law (No 1 of 2009) [2009] SASC 12 (Nyland, David and Kelly JJ).

   [5]     R v Gassy (No 4) [2010] SASC 124 (Doyle CJ, Nyland and Layton JJ). The applicant’s further application for special leave to appeal was also dismissed, Gassy v The Queen [2010] HCASL 189 (Heydon and Bell JJ).

5. As will be seen, the applicant’s applications to lead further evidence, for an extension of time and for permission to appeal sentence, should each be dismissed.

   The circumstances of the offence and the offender

6. The sentencing judge, Duggan J, found that the applicant embarked on a deliberate and planned attack on Dr Tobin.  In October 2002, he drove from Sydney to Adelaide for the specific purpose of killing her.  Once in Adelaide, the applicant fired four shots into Dr Tobin’s body as she walked from a lift to her office where she worked as the Director of Mental Health for South Australia.

7. The motive for the applicant’s crime related to his loss of employment in the Psychiatric Unit of the St George Hospital in Sydney eight years before.  In 1994, the applicant took a prolonged period of sick leave.  Dr Tobin wrote to the New South Wales Medical Board advising that psychiatric reasons were referred to in the applicant’s sickness certificate.  She sought an assurance that the applicant was fit to resume his duties, suggesting that the Board provide an independent assessment of the applicant’s psychiatric condition.

8. Following an examination on 26 August 1994, a psychiatrist reported to the Medical Board of New South Wales on 30 August 1994 expressing the opinion that the applicant was not fit to practise as a medical practitioner and would probably remain unfit “until, at least, he has received appropriate treatment”.  The psychiatrist was unable to say if or when the applicant would be fit to resume practise because that would largely depend upon whether he was prepared to follow the advice of the Medical Board.[6] 

   [6]     Report of Dr John Woodforde dated 30 August 1994.

9. Certain conditions were subsequently imposed on the applicant’s practise of medicine and psychiatry, one of these being that he report regularly to a board‑appointed psychiatrist.  The applicant refused to comply and was eventually de-registered and lost his job.

10. Notwithstanding the applicant’s denials, Duggan J accepted the “clear evidence” that the applicant resented Dr Tobin’s involvement in the process leading to his de-registration.  As his Honour explained it, the applicant blamed Dr Tobin:[7]

    … you resented Dr Tobin’s intervention and held her primarily responsible for your situation. You believed that Dr Tobin had a more significant role in your deregistration than appeared on the surface. You were of the view that she supplied further information to the board which was not made available to you.

    This resentment also extended to other people you believed were working against you. Your attitude in relation to the persons other than Dr Tobin led you to compile a list of those who had a role to play in your deregistration. The only reasonable inference to be drawn from the preparation of that list and the writing down of the initials of some of these people on another document is that the documents were prepared for some purpose associated with your anger and resentment at their involvement in the proceedings which led to your deregistration.

    [7]     Sentencing remarks of Duggan J dated 5 June 2009, page 2.

11. Justice Duggan found that the applicant had a deep interest in firearms which gave him the means to kill Dr Tobin in a “particularly violent manner”, and which led to him taking steps to escape detection by removing marks from some components of his pistols because they may have been used to link him with the crime. 

12. The prosecution case depended on an extremely detailed police investigation of the applicant’s movements at relevant times which was “remarkable in its intensity and thoroughness”.  Justice Duggan found that the applicant had earlier travelled to Brisbane in April 2002 knowing that Dr Tobin was to take part in a psychiatric congress, intending to stalk her and, if the opportunity presented, of doing harm to her. 

13. Justice Duggan referred to the fact that the death of Dr Tobin deprived her of the opportunity to continue her life and contribution to the community, but it also deprived her husband of his best friend and partner.  Victim impact statements were also provided by Dr Tobin’s mother and sister. 

14. Importantly, Duggan J described the applicant’s situation as “a tragedy in itself” because he had a promising career which had “fallen by the wayside and the applicant’s parents had to live through the consequences of his conduct”. 

15. There was no suggestion that there was any mental condition which excused or palliated the applicant’s criminal conduct.  That was so notwithstanding the evidence of many instances of paranoid thinking by the applicant. 

16. Justice Duggan referred to the fact that the applicant was 46 years at the time of the offending and that he had no previous criminal convictions.  He emphasised that, in the case of murder, the absence of previous convictions “cannot have the same effect as it might in the case of lesser crimes”. 

17. After referring to the introduction of s 32A in the now repealed Criminal Law (Sentencing) Act1988 (SA) (with effect from 1 November 2007) which imposed mandatory minimum non-parole periods and addressed proportionality, as well as the decision of the Court of Criminal Appeal in R v Ironside,[8] Duggan J imposed the mandatory sentence of life imprisonment, and he fixed a non-parole period of 30 years. 

    [8]     R v Ironside (2009) 104 SASR 54 (Doyle CJ, Gray and Kourakis JJ).

18. The sentencing remarks of Duggan J in this case are, with respect, commendably concise.  They must be evaluated against the practices that prevailed over a decade ago, long before the recent drift toward lengthy sentencing remarks.[9]

    [9]     Compare, for example, Lee v Western Australia [2022] WASCA 137, [51]-[55].

    The proposed grounds of appeal

19. The applicant is not represented.  By his Notice of Appeal dated 7 December 2022, the applicant relies on the following proposed grounds of appeal:

    1.The applicant was subjected to extreme provocation by the victim.

    2. The applicant has been subjected to acts of revenge by the DCS.

    3.The applicant was of good character.

    4.The sentence was manifestly excessive.[10]

    [10]   The applicant’s reply submissions filed on 24 May 2023 state that this ground is “withdrawn” and subsumed by proposed ground 7.

20. These grounds were supported by particulars which effectively comprised detailed submissions of fact and law.

21. In support of his application, the applicant also provided a detailed, handwritten affidavit affirmed on 30 January 2023 together with detailed written submissions spanning seven and a half pages dated 19 April 2023.  Attached to the written submissions was a bundle of medical and other material. 

22. On 15 May 2023, the applicant filed amended written submissions dated 28 April 2023 together with another affidavit affirmed on the same date.  The body of the affidavit affirmed on 28 April 2023 contained the factual matters included in the written submissions earlier filed on 19 April 2023 and it exhibited similar documents to the bundle which had been attached to the written submissions dated 19 April 2023.[11]  The amended written submissions were effectively a truncated version of the earlier submissions dated 19 April 2023.  The applicant confirmed at a directions hearing on 24 May 2023 that he relied on the materials accepted for filing by the Registry on 15 May 2023.

    [11]   The only additional document was an information sheet published by the Department for Correctional Services entitled “Port Augusta Prison: Prisoner Mail Information Sheet”.

23. The applicant applies for permission to adduce his affidavit and the other material before this Court as further, if not fresh, evidence to be considered in connection with his applications and appeal against sentence.  It will be necessary to return to the application to lead further evidence.

24. The applicant’s affidavits and amended submissions reveal the following additional, proposed grounds of appeal:

    5.The failure of the sentencing judge to clearly explain the adversarial nature of the sentencing proceedings amounted to a denial of procedural fairness.[12]

    6.The applicant had no previous criminal history.[13]

    7.The sentencing judge erred in sentencing the applicant for assumed planned offences against people whose names and addresses appear on two A4 pages seized from the applicant’s home during a search.[14]

    8.The sentencing judge erred in giving weight to a psychiatrist’s claim that the applicant was likely to reoffend.[15]

    9.The sentencing judge erred in characterising the shooting as “particularly violent”.[16]

    [12]   Applicant’s written submissions dated 28 April 2023, page 1.

    [13]   Applicant’s affidavit affirmed 30 January 2023, [10]; Applicant’s affidavit affirmed 28 April 2023, [10].

    [14]   Applicant’s written submissions dated 28 April 2023, [4].

    [15]   Applicant’s written submissions dated 28 April 2023, [5].

    [16]   Applicant’s written submissions dated 28 April 2023, [6].

25. In his Notice of Appeal the applicant addressed the reasons for his delay and the grounds upon which he asks this Court to extend the time within which he may seek permission to appeal against sentence.[17] The applicant submitted in his written reply submissions that the facts in support of his application for an extension of time were “better articulated” in his affidavit affirmed on 28 April 2023 as follows:[18]

    From the start of my first trial all my efforts were totally focused on getting acquitted.  I gave no thought to sentencing.  I thought sentencing was something entirely up to the judge.  I was completely unaware of the adversarial nature of the sentencing proceedings and made no submissions at the sentencing hearing.

    I represented myself at my first trial in the Supreme Court of South Australia, on appeal against conviction before the Court of Criminal Appeal of South Australia, on appeal against conviction before the High Court of Australia, at my retrial in the Supreme Court of South Australia, again on appeal against conviction before the Court of Criminal Appeal of South Australia, and again in an application for special leave to appeal my conviction.  My first trial went for six months and was gruelling.  My appeal against conviction was on multiple grounds requiring extensive reading, as was my application for special leave to appeal to the High Court of Australia.  My second trial also went for several months.  It seemed like all that effort had been wasted.

    Even though everyone said the sentence was excessive, I had lost confidence in the South Australian criminal justice system after twice have appeals against conviction dismissed and being judged guilty by two juries when I didn’t consider that the evidence allowed for a finding of guilt ‘beyond reasonable doubt’.  As my health declined because the Prison Health Services (P.H.S.) refused to treat me with penicillin for neurosyphilis, I realised that my only chance would be to have my sentence reduced and be released on parole.

    Two lawyers who had assisted me at trial and appeals against conviction were reluctant to assist me in an appeal against sentence.  The Law Society did not reply to written requests for assistance and declined phone calls.  The Legal Services Commission said they ‘don’t conduct research for prisoners’.  I have no internet access and couldn’t find anyone to do the necessary research.  When I tried to get an authority referenced in Australian Criminal Justice, the General Manager returned the authority to the sender on the basis that it was ‘not relevant’ and had been ‘downloaded off the internet’. It was only after I was transferred to Yatala Prison in 2022 that I managed to obtain authorities and identify potential grounds of appeal.

    Attempts to kill me by elements of the Department for Correctional Services (D.C.S.) and P.H.S. have escalated and my health is declining rapidly.  I am likely to die within the next few years, if not sooner, unless I can have my sentence reduced and be released on parole.  Should the Court grant leave to appeal, the victim’s husband will not be adversely impacted (he is deceased). The merits of the application for an extension of time are addressed later in these reasons.

    [17]   Notice of Appeal dated 7 December 2022, [23].

    [18] Applicant’s written reply submissions, [5], referring to the Applicant’s affidavit affirmed 28 April 2023, [3]-[7].

1. The essence of the applicant’s case appeared to be that he was, as an unrepresented person, unfamiliar with proper sentencing principles and practice and he was, in addition, exhausted and demoralised and unable to properly present his case in mitigation of sentence before Duggan J. 

2. The failure to properly present his case appeared to extend to the applicant’s failure to adduce evidence of his good character at the trial.

3. In addition, and separately, the applicant relied upon what he described as the “extreme provocation … by the victim” and the attempts made by the Prison Health Service and the Department for Correctional Services to “kill the [applicant] by depriving him of treatment for life-threatening illnesses from the early days of his incarceration”. 

4. In his amended submissions, the applicant explained that evidence in relation to good character was not led at the trial because he “did not think there was any possibility the jury would accept the argument that good character precluded violence given the extreme provocation by the victim”.  In relation to provocation and revenge, the applicant explained that he did not lead evidence at trial because it was not relevant to the issue of his innocence.

   The conduct of the sentencing hearings: procedural fairness

5. It is convenient to commence with the applicant’s contention that he was unfamiliar with the adversarial nature of a sentencing hearing and, in consequence, that he failed to lead relevant evidence or put relevant submissions in mitigation of his offending. 

6. By his amended submissions, the applicant contends that the failure of Duggan J to explain the adversarial nature of the sentencing hearing amounted to a denial of procedural fairness.  While during oral submissions the applicant withdrew his procedural fairness appeal ground, he nevertheless made submissions which continued to assert a denial of procedural fairness.  Accordingly, the Court has proceeded to address the matters referred to in the written and oral submissions. 

7. The conduct of the sentencing hearings is key to an assessment of the merits of this proposed ground of appeal (proposed appeal ground 5). The applicant’s claimed ignorance of the sentencing process also raises a question about the proper role of the sentencing court where the defendant has chosen to proceed without the benefit of legal representation.

8. A litigant has a fundamental right to self-representation.[19]  Despite the prevalence of unrepresented litigants,[20] it remains for the parties to define the issues and to select the evidence and arguments on which they rely.[21]  

   [19]   Cachia v Hanes (1994) 179 CLR 403, 415 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ).

   [20]    See RD Nicholson J, “Litigants in Person” (2001) 5 The Judicial Review 181; Kirby AC, “Ten years in the High Court - continuity & change” (2005) 27 Aust Bar Rev 4, “a noticeable phenomenon of the past decade has been the increase in the number of self-represented litigants …”.  See also Sackville AO, “Appellate Judging: Onwards and outwards towards mid-century” (2012) 86 ALJ 249, 252; Justice Rares, “Is access to justice a right or a service” (2015) 89 ALJ 777; Deputy Chief Justice John Faulks, “Self-Represented Litigants: Tackling the Challenge” (Conference Paper, Managing People in Court Conference, Canberra, February 2013); and Justice Emilios Kyrou, “Managing Litigants in Person” (Conference Paper, Managing People in Court Conference, Canberra, February 2013).

   [21]   Crampton v The Queen (2000) 206 CLR 161, [19]-[20] (Gleeson CJ). See also Dietrich v The Queen (1992) 177 CLR 292, 335 (Deane J).

9. Nonetheless, the court must ensure that an unrepresented litigant is apprised of relevant rights and duties, and it must be vigilant to keep the proceedings free from error or misunderstanding.[22]  The assistance of the court must be viewed as adjunct to its duty to ensure a fair trial or, as here, a fair sentencing hearing:[23]

   There is no limited category of matters regarding which a judge must advise an unrepresented accused — the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.

   [22]   Cooling v Steel (1971) 2 SASR 249, 251 (Wells J). See also Hittmann v Police (1999) 202 LSJS 132 (Nyland J) and Gould v Police [2005] SASC 297 (White J).

   [23]   MacPherson v The Queen (1981) 147 CLR 512, 524 (Gibbs CJ and Wilson J), in a case where the trial judge erred by failing to advise the accused of his right to challenge the voluntariness of a confession in a voir dire.

10. What is required to ensure a fair hearing will inevitably depend upon the particular facts and circumstances of any case.  What is required to apprise some unrepresented litigants about their rights and duties will be unnecessary in the case of other unrepresented litigants who are familiar, at least in a general way, with adversarial processes.

11. The High Court has recognised a distinction between the court apprising an unrepresented litigant of relevant rights and advising that litigant how those rights should be exercised.[24] Whilst it is not for the court to conduct the case, the assistance given by the court may extend to advising about the existence of relevant rights and duties so that the unrepresented litigant can decide how to conduct the case:[25]

    … an accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused’s case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. … Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.

    [24]   MacPherson v The Queen (1981) 147 CLR 512, 535 (Mason J). The relevant principles affect judges and magistrates alike, Hopfner v Flavel (1990) 48 A Crim R 149, 156 (Mullighan J).

    [25]   MacPherson v The Queen (1981) 147 CLR 512, 546-547 (Brennan J). See also R v Gidley [1984] 3 NSWLR 168, 181 (Hunt J); R v Zorad (1990) 19 NSWLR 91, 99; and R v White (2003) 7 VR 442, [33]‑[34] (Chernov JA with whom Charles and Eames JJA agreed), “the judge must ensure the accused is fully aware of the legal position in relation to the substantive and the procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown case as if the judge was the accused’s counsel”; and Jamal v Director of Public Prosecutions (DPP) [2013] NSWCA 355 (Gleeson JA, with whom Meagher and Latham JJ agreed).

12. Though the court has a duty to ensure a fair hearing, and it may be necessary to give some assistance to an unrepresented litigant so as to fulfil that duty, that assistance must not detract from the neutrality of the court.  The court must remain both neutral and impartial in its conduct of the hearing.  The hearing must be fair to all parties.  The court cannot advocate for any party, whether or not that party is represented.  The court must act carefully to ensure that any assistance given to an unrepresented litigant does not detract from the need to ensure that the represented party also receives a fair hearing.  This may at times give rise to “tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance”:[26]

    When a litigant represents himself, the judicial officer is placed in a difficult position. The judicial officer must, at all times, act impartially as an independent arbiter, preserving the balance between the parties. The appearance of justice may be adversely affected if one of the parties, especially the losing party, believes that the judicial officer has become too close to the other party and has not approached the issues in the case with detachment and objectivity. If a party believes that the judicial officer is not neutral and has taken up the cause of his opponent, the central point of judicial decision making will be lost: Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389 per Kirby P at 397. At the same time, the unrepresented party will often be at a disadvantage. The court will, therefore, be concerned to ensure that the trial, be it a criminal or a civil trial, is fair and just. The interests of justice and fairness may require a degree of assistance by the judicial officer to the unrepresented litigant. There is, therefore, a tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance, and, indeed, the appropriate degree of assistance, to the unrepresented litigant.

    [26]   Pezos v Police (2005) 94 SASR 154, [10] (Debelle J). See also Reisner v Bratt [2004] NSWCA 22, [4] (Hodgson JA, with whom Ipp JA agreed). In Malouf v Malouf [2006] NSWCA 83, [94], Mason P said that the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented. In Kelly v Westpac Banking Corporation [2014] NSWCA 348, [42] (The Court): “Courts cannot prefer the interests of self‑represented litigants over those who are legally represented”.

13. For example, in Dietrich v The Queen, Deane J deprecated any suggestion that the prosecution or the court were obliged to advise an unrepresented party “about what available evidence should be called”.[27]  Subsequently, in Pezos v Police, Debelle J suggested that observations such as these must now be qualified:[28]

    Decisions since Dietrich indicate that much of what is expressed in that passage [from the reasons of Deane J] remains correct but must be qualified by the fact that the interests of a fair trial will require the trial judge to alert the unrepresented counsel to the implications or consequences of a conduct of his defence or to inform the accused of his rights on certain issues…

    [27]   Dietrich v The Queen (1992) 177 CLR 292, 334-335 (Deane J).

    [28]   Pezos v Police (2005) 94 SASR 154, [18] (Debelle J).

14. There is no one rule of universal application by which it is possible to determine the particular assistance that must be given by the court where a party is unrepresented:[29]

    What a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case.

    [29]   Abram v Bank of New Zealand (1996) ATPR ¶41,507, 42,347, followed in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, [27]. See also Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497, 514 (Sackville J); In Marriage of Johnson (1997) 139 FLR 384, 406.

15. In this matter, the applicant sought various orders from this Court before the hearing of his application for permission to appeal.  He submitted that these were intended to assist his preparation and they included orders that he be given access to the whole of the transcript of his two trials.  The applicant sought this material even though he professed to have a good memory and said that he only needed the transcript to check on matters of detail. 

16. Eventually it became clear that the applicant was interested in any explanations given by the sentencing judges during the sentence hearings about the sentencing process, including the basis upon which they would receive evidence or submissions, as well as whether the applicant was apprised of his rights during the sentencing process.

17. It is appropriate to review the transcripts of the sentencing hearings because they provide insight into the applicant’s understanding of the sentencing process, as well as his understanding of his rights and duties.

18. As will be seen, the sentencing submissions before Vanstone J, together with her remarks, as well as the submissions made before Duggan J, demonstrate that a number of the applicant’s contentions must be rejected because the transcripts demonstrate that the applicant was well aware of the nature of the sentencing process and able to participate in it.

19. Following the applicant’s first murder conviction in 2004, the matter was set down for submissions on sentence on Monday, 27 September 2004.  On that day, Vanstone J explained the nature of the sentencing process to the applicant in the following terms:[30]

    Her Honour:               Dr Gassy, in a moment, you will have the opportunity to address me as to any factors that you say I should take into account in fixing your non‑parole period.  Such factors might, first, relate to the crime of which you have been convicted.  You may not challenge the jury verdict in what you say to me, there is another forum for that, but if you wish to make submissions which you think tend to mitigate the seriousness of the crime, you may.

    Secondly, you may make any submissions as to your personal circumstances, your life and so forth which you see as being such as to attract leniency.  I will call on you in a moment to do that, but I will hear from Mr Brebner first.

    Prisoner:Can I just point out, since my last attendance in court, I have been put in virtual solitary confinement with no access to any writing materials, computer or legal textbooks, which I could have referred to in preparing any submissions.

    Her Honour:       I will take that up with you again in a moment. 

    [30]   Transcript of submissions, Monday, 27 September 2004, pages 1-2.

20. A considerable portion of the submissions made by the prosecution before Vanstone J addressed whether she should set a non-parole period.  The prosecution referred to a number of authorities and submitted that no non-parole period should be set.  In addition, the prosecution foreshadowed that it proposed to lead evidence from a psychiatrist regarding the applicant’s mental condition.  The prosecution raised whether the applicant would be prepared to consent to an examination and, if he was not prepared to consent, a report would be prepared on the basis of the material disclosed during the course of the trial. 

21. During an exchange with Vanstone J, it was made clear that psychiatric reports for the purposes of sentence were usually obtained by a defendant rather than by the prosecution and that the course proposed by the prosecution was unusual.

22. After hearing submissions from the prosecution, Vanstone J referred to an issue which had been raised by the applicant and asked him whether there was some prospect that he would have access to his writing materials and computer “fairly soon”.  She then asked whether the applicant wished to make submissions in mitigation of the non-parole period.  The applicant then made detailed oral submissions even though the sentencing judge reassured the applicant that she was not asking him to do that at that time if he was not adequately prepared.[31] 

    [31]   Transcript of submissions, Monday, 27 September 2004, page 11.

23. After he made submissions about the diagnosis by Dr Woodforde – he addressed the burden of proof and described the diagnosis as a “fabrication and … part of the political abuse of psychiatry” – the applicant made submissions about his right to habeas corpus and that he had been denied a diagnosis of AIDS as well as denied anti-HIV treatment.  He said that he was suffering a range of physical symptoms for which he had been denied treatment.  He described this as “an attempt at execution”:

    I submit that any custodial sentence will allow that attempted execution to be taken to finality so that really the actual non-parole period, if your Honour were to impose one, would be academic in the circumstances.

24. Justice Vanstone then reiterated that the applicant would be given the opportunity to address her further at the next hearing in several weeks’ time.

25. On the next occasion, a month later on 28 October 2004, the prosecution tendered victim impact statements which were read out to the court.  Submissions were made about the psychiatric report which had been obtained by the prosecution, which her Honour described as not “particularly helpful”.  Further submissions were then made as to fixing a non-parole period as well as regarding the applicant’s belief that he was suffering from AIDS. 

26. The applicant was given another opportunity to make submissions in mitigation of sentence.  A reading of those submissions demonstrates that the applicant was well aware of the issues which were required to be addressed and he put his arguments with some lucidity, force and sophistication.[32] 

    [32]   Transcript of submissions, Thursday, 28 October 2004, from page 25.

27. In the course of his submissions, the applicant emphasised the effect on him of Dr Tobin assuming the directorship of the psychiatric unit in which he worked and the increase in his workload which was exacerbated by the resignations of key staff.  Clearly, the applicant was describing what he has since termed Dr Tobin’s “extreme provocation” of him.  Perhaps paradoxically, the applicant was particularly concerned to negate any suggestion that he was delusional about the effect Dr Tobin had had on his practise as a psychiatrist.  He submitted that he did not suffer and had never suffered from any psychiatric disorder. 

28. The applicant addressed a number of the cases relied on by the prosecution, including various High Court authorities.[33]  The applicant did so ably and in connection with his submission that a sentence should not be increased beyond that which is proportionate, even where community protection is a consideration.  The applicant argued against preventative detention, again relying upon High Court authority.[34]

    [33]   Such as Veen v The Queen (1979) 143 CLR 458 and Veen (No 2) v The Queen (1998) 164 CLR 465.

    [34]   Hoare v The Queen (1989) 167 CLR 348, 391.

29. The applicant addressed, and tried to minimise, the harm sustained by the victim, pointing out that Dr Tobin lost consciousness within seconds, not minutes.  He submitted that the type of murder raised by his case was rare and that general deterrence “should not be a major factor” and that, in any event, general deterrence should not be permitted to “crush the particular offender”.[35]

    [35]   Relying upon The Queen v Pahuja (No 2) (1989) 50 SASR 551.

30. The applicant made submissions about his financial resources as well as about the absence of any history of violence or criminal offending by him,[36] emphasising both his age and (again) his AIDS illness – “for which I have been untreated [and which] is likely to lead to death in custody within the next year or two” – submitting that the deprivation of treatment was “no less than an attempt at execution” which should attract “a sentence discount”.  The applicant emphasised his various physical symptoms, which he submitted “should be counted as unjustified and a legal [sic, illegal] punishment” since incarceration, which should likewise “attract a sentence discount”. 

    [36]   Relying upon Austin v The Queen (1996) 87 A Crim R 570.

31. The applicant addressed his personal circumstances in some detail, emphasising his successful education and working history, culminating in the services he provided at St George Hospital between October 1990 and May 1994.  He asserted that he was the only adult psychiatrist in a service that, compared with other similar services, had required three psychiatrists. 

1. In the course of sentencing remarks subsequently delivered on Thursday, 28 October 2004, Vanstone J commenced by describing the applicant’s offending: “The killing was cool, calculated and clever.  You could have got away with it.  Only the most outstanding police work brought you undone”.  After outlining some further aspects of the circumstances of the offending and the offender, her Honour explained that she was not satisfied that the applicant was delusional.  Rather, he likely suffered some sort of paranoid disorder and his personality was flawed. 

2. Justice Vanstone was satisfied that the applicant’s response to his deregistration was to plan to kill those whom he saw as responsible:

   Your hatred for Dr Woodforde and Dr Phillips was palpable during their evidence, even though you tried to disguise it.  There is no question in my mind that their lives have been in danger in the last eight years leading to your arrest.  The surveillance tapes of Dr Nelson’s rooms, of which the jury was not aware, are tangible proof that your ambitions extended beyond Dr Tobin.  (That I am permitted to have regard to that material in the sentencing process is authoritatively established in R v James, Sharp & Kennedy (1983) 36 SASR 215.) In your very trial, you demonstrated a determination not only to brandish Dr Tobin’s post-mortem photographs, but also to intimidate Dr Nelson by producing one such photograph to him. That act only tends to further confirm my own settled view that not only do you have no contrition for what you did, but you see the task as unfinished. That you have carried such a level of resentment for almost a decade indicates to me that you will never let it go. As well, I am satisfied that in your time in custody, new persons have been added to your list of targets.

3. Justice Vanstone emphasised that the applicant was mentally competent: she explained that the applicant “went to great lengths to cover [his] tracks and conceal [his] identity.  [He] waited patiently until the opportunity to strike presented itself and [he] then acted calmly and efficiently”.  Whilst her Honour rejected that the applicant’s responsibility for his crime was “diminished” by his “unusual personality and … susceptibility to thoughts of persecution”, “even if it were so, the reduction in non-parole period it could attract would come into collision with the need to protect the public from you and to deter you from future crime”.

4. Justice Vanstone then referred to but rejected the applicant’s claimed AIDS diagnosis, though she acknowledged the tragedy for the applicant and his family, recognising his intelligence and endeavour.  However, her Honour also recognised that the applicant’s good record was undermined by his willingness to follow and harm Dr Tobin in Brisbane in April 2002.  Justice Vanstone found that there was nothing that could be said in mitigation of the applicant’s offending because he was not deterred by his experience in Brisbane:

   You had an opportunity to think again, or to seek help when your plans failed.  You chose not to take it.  It seems to me that this killing must rank in the worst category of murder.  Only multiple murders could be more serious and many of those might be attended by circumstances of mitigation which are not present here.

5. Justice Vanstone fixed a 34-year non-parole period, which was later quashed by the High Court. 

6. Following the second trial and conviction, on 6 May 2009 the allocutus was given and Duggan J told the applicant:

   Dr Gassy I propose to give you some time in order to prepare what submissions you want to prepare in relation to the fixing of the non-parole period.  I was thinking of a few weeks in order to give you that opportunity.

7. The applicant is not recorded as making any response to this comment. 

8. Justice Duggan called the matter back on for submissions in mitigation of sentence on Monday, 1 June 2009.  On that occasion the prosecution tendered an antecedent report, disclosing that the applicant had no prior convictions and, again, victim impact statements were tendered and then read to the court. 

9. The prosecution concentrated its submissions on the non-parole period, relying upon only two authorities.[37]  The prosecution submitted that no remorse had been expressed and the applicant had displayed “no prospect of rehabilitation”, with the result that there was a need to protect the community. 

   [37]   Inge v The Queen (1999) 199 CLR 295; The Queen v Stewart (1984) 35 SASR 477, 477-478 (King CJ) where examples of the most serious category of murder were given, including “cold blooded pre‑meditated murder”.

10. The prosecution concluded with a reference to various of the sentencing remarks which had been made by Vanstone J five years before.  Justice Duggan then addressed the applicant in the following terms:[38]

    His Honour:       Dr Gassy, you made it clear during the trial stage in this matter that you wished to represent yourself and you explained why that was the case.  We have now come to another stage, which is the sentencing process, and I assume, because I haven’t heard the contrary from you, that you wish to represent yourself at this stage of the process also.  That you might indicate to me whether that is correct?

    Prisoner:Yes.

    His Honour:       You proceed then and make what submissions you want to make to me.

    Prisoner:I have very little to say.  Simply that my submission is that the sentence should be backdated to the date of my arrest and that my age and absence of previous convictions warrant a sentence towards the lower end, rather than the higher end of the spectrum, and that I have easily established, on the balance of probabilities, that I do not suffer, nor have I at any time, suffered from a delusional disorder or paranoid personality traits.  That is it.

    His Honour:       Do you wish me to order any reports?

    Prisoner:No.

    His Honour:       I will consider the sentence in this matter, with particular respect to the non-parole period.  Of course, the head sentence is fixed by law.  But I will consider the non-parole period and I hope to be able to do that within the next few days.

    [38]   Transcript of sentencing submissions, Monday, 1 June 2009, pages 13-14.

11. The applicant was then remanded for sentence before he was sentenced on 5 June 2009.

12. This review of the sentencing hearings reveals that their adversarial nature must have been obvious to the applicant.  Whilst his submissions to Vanstone J were particularly detailed and lucid, the brief submissions made to Duggan J covered important topics, such as the backdating of his non-parole period and the reasons why it should be set “towards the lower end, rather than the higher end of the spectrum”.  The applicant’s submissions recognised that, for the purposes of sentence, it was necessary for him to prove matters on the balance of probabilities. 

13. When viewed as a whole, the applicant’s participation in the sentencing hearings, including the hearing before Duggan J, does not support his submission that he was “completely unaware of the adversarial nature of the sentencing proceedings and made no submissions at the sentencing hearing”.  Similarly, the applicant’s oral submissions to the effect that he made a “legal incompetent decision not to make sentencing submissions”, and that it was clear that all his efforts were devoted to overturning his conviction, must also be rejected. 

14. In addition, the hardship which the applicant now asserts was caused by his untreated medical conditions was a matter addressed in some detail before Vanstone J and it is unlikely to have escaped the attention of Duggan J, who was provided with and referred to the sentencing remarks of Vanstone J. The applicant’s complaints about the treatment he received in prison were addressed by Duggan J in the course of his summing up.

15. Although the applicant referred to his failure to lead evidence of good character at the trial, he may be taken to be referring to the failure to lead that kind of evidence at the sentencing hearing.  Whether he took that course was entirely a matter for him.  Again, there is no basis for the suggestion that this was an issue overlooked by Duggan J.  The absence of any prior criminal record was expressly adverted to by Duggan J, as was the tragedy associated with the loss of the applicant’s career. 

16. It will be necessary to return to some of these observations when addressing the applicant’s proposed grounds of appeal.  Before addressing the applicant’s proposed grounds, it is next convenient to address his applications to lead further evidence and seeking an extension of time.

    The application to lead further evidence

17. An appeal to this Court against sentence under s 157(1)(a)(iii) of the CPA is by way of rehearing, and ordinarily confined to the materials available to the sentencing court. By s 166(c) of the CPA the court is empowered, if it thinks it necessary or expedient in the interests of justice, to receive further evidence.[39]  That power is ancillary to the appellate jurisdiction of the Court of Appeal.[40] 

    [39]   Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).

    [40]   R v Kikidis (2012) 112 SASR 148, [24] (Kourakis J, with whom Doyle CJ and Vanstone J agreed).

18. In broad terms the evidence on which the applicant wishes to rely generally comprises material that was both known to the applicant and available before sentence.  While some of the material was not available until after sentence was passed, that material largely touched on matters which were the subject of submissions on sentence. 

19. The attempt to invoke what has occurred after sentence was passed would not ordinarily be regarded as relevant.  The Court of Appeal will not usually intervene on the basis of events occurring after sentence,[41] unless the further evidence demonstrates that the approach of the sentencing judge was erroneous, either because the proposed evidence was not known to the sentencing judge, or because it is capable of putting what was known in a new light.[42]

    [41]   R v O’Shea (1982) 31 SASR 129.

    [42]   R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed).

20. The principles applicable to an application to lead further evidence on appeal have been considered on many occasions.[43]  The exercise of the discretion to admit fresh or further evidence must take into account both the public interest in the finality of litigation as well as the prospect that it will have an important bearing on the outcome of the case.[44] 

    [43]   See, by way of example only, Athans v The Queen [2022] SASCA 71, [21]-[30] (Livesey P, Doyle and Bleby JJA).

    [44]   R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ).

21. It is generally accepted that an applicant seeking to adduce fresh or further evidence will usually satisfy three conditions before that evidence will be received on appeal:[45]

    1.It must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing;

    2.The evidence, if adduced, would probably have an important influence on the result, though it need not be decisive; and

    3.The evidence must be apparently credible.

    [45]   R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ); R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).

22. Nonetheless, “the power of the court to receive fresh evidence cannot be fettered by hard and fast rules”.[46]  Indeed, in R v McIntee King CJ described the approach in very broad terms:[47]

    The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand…

    [46]   Phillipou v The Queen [2020] SASCFC 21, [60] (Kourakis CJ, with whom Stanley and Doyle JJ agreed) citing Neill v Police [1999] SASC 270, [21] (Doyle CJ) with approval.

    [47]   R v McIntee (1985) 38 SASR 432, 435 (King CJ).

23. There has been some uncertainty expressed about the way in which fresh or further evidence may, if received, be used by the Court of Appeal when determining whether the appeal should be allowed.[48]  In Athans v The Queen, this Court explained the approach to be taken where the fresh or further material is admitted:[49]

    In our view, if the Court of Appeal admits the further evidence, it must review the original sentence and determine whether, with the benefit of the further evidence in the context of all of the material before the Court, the sentence may be said to be “affected by error such that the defendant should be re-sentenced”, as is required by s 158(7) of the CPA. When conducting that review, the Court is not constrained by having to identify error such as manifest excess. Rather, it is sufficient that the sentence is erroneous in the sense that the Court forms the view that a different sentence should be imposed. To the extent that s 158(7) assumes error of the kind contemplated by House v The King,[50] the original sentence may be said to have been passed without regard to relevant evidence, or on the basis of a material error of fact.

    [48]   R v Brain (1999) 74 SASR 92, [92]-[93] (Doyle CJ, with whom Bleby and Wicks JJ agreed); R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed); R v Kikidis (2012) 112 SASR 148, [25] (Kourakis J, with whom Doyle CJ and Vanstone J agreed).

    [49]   Athans v The Queen [2022] SASCA 71, [29] (Livesey P, Doyle and Bleby JJA).

    [50]   House v The King (1936) 55 CLR 499.

24. The material which is the subject of the application to lead further evidence comprises the applicant’s affidavit made on 28 April 2023, the psychiatric opinion of Dr John Woodforde dated 30 August 1994, medical reports and notes concerning the applicant’s various medical conditions between 1996 and 2007 and correspondence with the Legal Services Commission of South Australia, with Mr SJ Odgers SC of Forbes Chambers in Sydney, New South Wales and with the Department for Correctional Services.[51]

    [51]   When compared with the affidavit affirmed on 30 January 2023, the affidavit affirmed on 28 April 2023 omitted one of the letters from SJ Odgers SC and a letter from the Legal Services Commission but included an information sheet published by the Department for Correctional Services.  The letter from Mr Odgers shows that during March 2023 he declined a “direct access” brief – that is to say a brief from a client rather than a solicitor - but indicated a willingness to provide unpaid assistance.  That assistance included providing judgments and research.

25. It is appropriate to briefly describe the effect of this material. 

26. The applicant’s affidavit provided his explanation, which has already been set out, for the way in which he conducted the sentencing hearing before Duggan J.  In essence:[52]

    I was mentally exhausted after representing myself …  I had given no thought to sentencing and made no submissions at the sentencing hearing.  I was completely unaware of the adversarial nature of the sentencing proceedings.

    [52]   Applicant’s affidavit affirmed 30 January 2023, [3].

27. The applicant then addressed each of his proposed grounds of appeal, explaining what he regarded as the provocation by Dr Tobin, the acts of revenge by the Prison Health Service and the Department of Correctional Services, his good character, why his sentence was manifestly excessive and, amongst other issues, the absence of any previous criminal history.  It will be necessary to return to some of this material. 

28. The psychiatric report has already been mentioned.  Dr Woodforde explained his opinion that the applicant was unfit to practise given the applicant’s emotional adjustment to an accumulation of various problems which had “decompensated into a psychotic state as evidenced by delusional beliefs”:

    It is possible that his decompensation began as a mood disorder.  The symptoms which he described to me of loss of motivation, reduced concentration, irritability, “bad mood”, insomnia, are consistent with a depressive disorder.  There is some support for this with the family history of a major depression that his father suffered.  However, I believe that he now has a psychotic delusional disorder which may have been a further decompensation.  Many of his beliefs are both accusatory and persecutory … I have recommended that he seek expert psychiatric advice and treatment.  Unfortunately, due to his lack of insight he has been unable to obtain correct treatment …

29. During the course of a number of examinations by Dr Jonathan Ell, neurologist, between 1986 and 2001, he considered but rejected the proposition that there was any support for an AIDS diagnosis.  He referred to the evidence that the applicant was HIV negative.  Against a background of symptoms which included difficulty with micturition and sexual disfunction, as well as a belief that he had multiple sclerosis, the applicant had treated himself excessively with Septrin, which had likely caused his symptoms of peripheral neuropathy.  There was no evidence of any neurological disorder.

30. Later, Dr John Leicester and, during 2004 and 2005, Dr JA Temlett, a senior staff neurologist at the Royal Adelaide, obtained a similar history regarding claimed HIV disease and peripheral neuropathy related to an asserted HIV infection.  On examination, Dr Temlett found some wasting of the right quadriceps as well as a “stocking” sensory loss which was both symmetric and mid-calf with diminished pinprick and touch sensation.  Dr Temlett rejected the need for electrophysiological studies and reassured the applicant that his small fibre sensory loss should not cause any functional incapacity.  He emphasised that this finding was, in any event, not part of any recognised HIV “neurological spectrum”.  The applicant was referred back for follow up by Yatala Prison Services. 

31. It is difficult indeed to see the relevance of this medical material to the applicant’s proposed sentence appeal.  The material is not new.  It had been canvassed during the earlier trials and referred to by Vanstone J.  It does not demonstrate that the applicant has any medical or other condition referable to his incarceration or that any condition which he may have has not been appropriately treated whilst in gaol. 

32. The report of Kimberley Gilson, Senior Psychologist, dated 10 December 2014 addresses the outcome of an interview conducted with the applicant in which he denied the offending, even though Dr Tobin had “made [his] life difficult”.  The applicant participated in a “screener assessment” to provide a preliminary estimate of his risk of reoffending as well as his treatment needs.  The psychologist concluded that based on “an actuarial risk assessment” the applicant was at “low risk” of reoffending and it was recommended that he be re-assessed in five years’ time.  There was no recommendation made regarding treatments, as the applicant’s mental health appeared to be stable.

33. The correspondence with Mr Odgers demonstrates that the applicant had been in contact with him since September 2017 when he agreed to provide some legal assistance with an appeal against sentence. 

34. During the hearing before this Court, after initially saying that he relied upon his written materials, and having heard the submissions of Mr Scobie for the Crown, Dr Gassy attempted to refer to additional evidence beyond that contained in his written materials.  The matters to which he referred appeared to comprise additional detail concerning various assertions already made in his written material, such as hardship.  These included his fears about whether he had been infected during an unprotected sexual encounter many years ago, as well as the effects of drinking water whilst in prison (to which reference will later be made). 

1. Again, it is difficult to see how this material provides any assistance to the applicant in connection with his application for permission to appeal sentence.  It certainly does not explain the applicant’s delay in progressing this application, particularly since 2017 when correspondence with Mr Odgers SC appears to have commenced. 

2. Whilst it is appropriate to consider the matters deposed to by the applicant in his affidavit, largely on the basis that they represent his submissions, it has not been demonstrated that the balance of the material should be received, at least to the extent that it has not already been put before the Court during the proceedings conducted by Duggan J. 

3. The applicant has not demonstrated that, if admitted, any of the evidence would have an important influence or bearing on the outcome, still less that it would alter the weight given to any relevant aspect of his sentencing.  For example, it has not been shown that the material is capable of demonstrating a degree of personal hardship associated with incarceration which was not capable of being addressed before Duggan J or which was not appreciated by his Honour. 

4. Most importantly, this evidence, even if admitted, does not demonstrate that the present sentence is unjust or that any different sentence should be imposed.

5. The Court declines to receive the further evidence apart from the applicant’s affidavits made on 30 January and 28 April 2023.  The affidavit made on 30 January 2023 may or may not be relied on.  The applicant’s approach was not entirely consistent about whether it had been wholly replaced.  It will be received to the extent that it contains the applicant’s submissions, at least to the extent that they do not conflict with his later submissions. 

6. Apart from the affidavit evidence mentioned, the application made pursuant to s 166(c) of the CPA is refused.

   The application for an extension of time

7. The principles relating to whether to grant an application for an extension of time were addressed in some detail by the Court of Criminal Appeal in R v Parenzee.[53]  The Court will usually consider the length of the delay, the reasons for the delay, the impact upon the public interest of reopening the Court’s decision after the lapse of time since conviction or sentence and the merits of the proposed grounds upon which the application for permission to appeal has been made. 

   [53]   R v Parenzee (2008) 101 SASR 469, 482 (Doyle CJ, with whom Bleby and Anderson JJ agreed).

8. Where there is a reasonable explanation for the delay, and the delay is slight, the Court will readily extend time.  By contrast, where the delay is substantial, it will be necessary to demonstrate more than that the proposed grounds are reasonably arguable.  The Court will not necessarily allow the appeal to be fully argued in connection with an application for an extension of time.  The applicant must demonstrate that there is the real possibility of a miscarriage of justice or that there are substantial grounds warranting serious consideration of the merits of the proposed appeal.[54]  As Brennan CJ and McHugh J explained in Jackamarra v Krakouer:[55]

   It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.

   [54]   R v Brown [1963] SASR 190, 191 (Napier CJ, Millhouse and Hogarth JJ); R v Balchin (1974) 9 SASR 64, 65-66 (Hogarth ACJ, Bright and Walters JJ).

   [55]   Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J); see also R v Valesic (2018) 132 SASR 250, [14] (Peek J, with whom Stanley and Hinton JJ agreed).

9. The application for permission to appeal in this case is nearly 14 years out of time.  Unless the applicant can identify some basis to conclude that there is a real prospect of a miscarriage of justice, for example because his proposed grounds of appeal are meritorious, there is ordinarily a strong public interest against re‑opening a sentence which was imposed nearly 14 years ago.  The need for finality in the administration of criminal justice is an important consideration which, in the circumstances of this case, weighs heavily against granting the application for an extension of time. 

10. It is a remarkable feature of the application that the applicant does not really make any attempt to properly explain his delay. 

11. The allegations of hardship by reason of a lack of treatment whilst imprisoned are made in terms similar to those presented to Vanstone J in 2004.  For example, in his affidavit affirmed on 28 April 2023, the applicant returned to the theme agitated before Vanstone J, namely, that the prison authorities were trying to harm him:[56]

    As my health declined because the Prison Health Services (P.H.S) refused to treat me with penicillin for neurosyphilis, I realised that my only chance would be to have my sentence reduced and be released on parole.

    …

    Attempts to kill me by elements of the Department for Correctional Services (D.C.S.) and P.H.S. have escalated and my health is declining rapidly.  I am likely to die within the next few years, if not sooner, unless I can have my sentence reduced and be released on parole.  Should the Court grant leave to appeal, the victim’s husband will not be adversely impacted (he is deceased).

    [56] Applicant’s affidavit affirmed 28 April 2023, [5], [7].

12. Although the nature of the conditions described by the applicant may have varied somewhat over time, he has been consistent in claiming to have been persecuted by prison authorities.  The allegation that they are trying to kill him is not new.  It was a matter that was touched on in the proceedings before Duggan J, though at that stage the applicant did not give the issue the prominence he gave it before Vanstone J or in this Court.

13. Whilst there remains no independent or objective medical support for most of the applicant’s claims, for present purposes it is the longstanding nature of these claims that represents another important factor weighing against the grant of an extension of time.

14. Nonetheless, in a case such as this it is appropriate to defer reaching any conclusion on the application for an extension of time until the merits of the proposed appeal grounds have been considered.

    The proposed grounds of appeal

15. It is convenient to address all proposed grounds next, save the ground of manifest excess, which will be addressed last.  It may be the case that a number of the proposed grounds are put as particulars of manifest excess rather than specific errors made in the exercise of sentencing discretion.[57]

    [57]   Cf R v Lutze (2014) 121 SASR 144, [45]-[49] (Vanstone and Parker JJ).

    Proposed appeal Ground 1 – extreme provocation by the victim

16. In his affidavit, the applicant addresses what he claims was provocation by Dr Tobin at some length.  In his written submissions, a number of these matters were repeated.  In broad terms, the applicant claims that Dr Tobin treated him badly and caused his deregistration:[58]

    Tobin was headhunted for the position of Area Director of Mental Health … She was unprecedently appointed to Director of Psychiatry at St George simultaneously.  … I had been carrying double the usual patient load in that time.  Directors of psychiatry have clinical as well as administrative responsibilities, but Tobin did not see any patients and did not join the on-call roster.  She tried to increase my workload when I was nearly exhausted.  After six months I decided to go on sick leave to force her to do some clinical work.  I used a medical certificate provided by a psychiatrist which cited “Burnout” as the diagnosis.  Tobin contacted the Medical Board falsely claiming the certificate was the product of a “corridor consultation” and therefore unreliable.  At the request of the Medical Board, I naively attended an interview with Woodforde.  …

    Tobin’s complaint to the NSW Medical Board was opportunistic.  Suggestions that I was seeing patients for my own gratification hit a raw nerve, causing her to overreact and proceed under the rationale that the ends (preventing me from practising and “abusing” patients) justified the means (manufactured complaint).  She influenced Woodforde to make a false diagnosis.  … Her egregious actions cost me millions in lost earnings and superannuation, humiliated me and my family, caused me to become alienated from my friends and associates, and nearly cost me my life.

    [58] Applicant’s affidavit affirmed 28 April 2023, [12]-[13].

17. In support of his submission, the applicant cites a textbook for the proposition that “provocation is a mitigating factor”.[59] 

    [59]   Findlay, Odgers and Yeo, Australian Criminal Justice (Oxford University Press, 2^nd ed, 1999), 263.

18. This submission is, at the least, problematic in circumstances where the applicant has never admitted that he shot and killed Dr Tobin and where he tried at trial to minimise Dr Tobin’s role in his de-registration.  Before Duggan J the applicant had described Dr Tobin’s conduct as both “minimal” and “not such that it would have provided a basis for wanting to kill her”.

19. None of the material relied on by the applicant is capable of demonstrating that he was provoked, whether at all or in any relevant manner.  In particular, the conduct relied on does not meet the requirements for demonstrating the defence of provocation at common law,[60] nor does it amount to conduct which could properly be said to mitigate the applicant’s offending.  The applicant responded to genuine concerns about his fitness to practise by failing to cooperate with the requirements of the Medical Board.  Far from being provoked by Dr Tobin, the applicant’s loss of registration and employment was entirely the result of his own dysfunctional thought processes and conduct. 

    [60]   See, for example, Lindsay v The Queen (2015) 255 CLR 272.

20. That the applicant determined upon revenge, culminating in the murder for which he was convicted, was not in any sense provoked by Dr Tobin.

21. This proposed ground of appeal is without merit.

    Proposed appeal ground 2 - the applicant has been subjected to acts of revenge

22. The observations made by the applicant in his affidavit about the conduct of the prison authorities have already been mentioned.  In his affidavit affirmed on 28 April 2023, the applicant made numerous diagnoses and allegations which are without independent or objective support, at least insofar as it is suggested that they evidence a deliberate plan to harm him.  For example, the applicant attributed a number of his problems to “drinking the water”:[61]

    I excluded everything from my diet one by one, but nothing made any difference.  My symptoms were getting worse and worse.  I developed scintillations across both fields of vision, speech difficulties and daytime drowsiness.  It became a major effort to get out of bed.  As a last resort I stopped drinking the water, just for completeness.  It was the only thing I hadn’t tried.  I didn’t expect it to make any difference.  To my amazement, within days I improved dramatically.  Within two weeks I had no respiratory symptoms. 

    [61]   Applicant’s affidavit affirmed 28 April 2023, [16].

23. Later in his affidavit, the applicant made further allegations, which appear to relate to a hospital attendance during 2007 (though that is far from clear):[62]

    When I returned to prison from hospital my outpatients department follow-up appointment was cancelled, I suspect by the nurses falsely claiming I refused to attend.  The nurses then tried to get my ulcer reinfected.  My life will remain at increasing risk in gaol as I get older and develop more medical conditions placing me at the mercy of elements of the PHS who clearly want me dead. 

    Despite exemplary behaviour DCS keeps me in gaols where it impossible to collect rainwater.  Two weeks after the general manager of Mobilong Prison realised I was collecting rainwater, he incited another prisoner to assault me and transferred me back to Port Augusta …

    [62] Applicant’s affidavit affirmed 28 April 2023, [19]-[20].

24. The applicant submitted that events occurring after sentence indicate a state of mind before sentence.  This was, presumably, a reference to the attitude of prison authorities.  He went further and submitted that this Court should take a dim view of DCS and the PHS “usurping its role”, that is, the role of the Court.  The applicant sought re-sentence so as to deter what he described as “unconscionable behaviour” by prison authorities.  The applicant submitted that acts of revenge “directed at the offender may be mitigating factors”, again citing a textbook.[63]  The applicant claimed that he could establish these matters on the balance of probability.  The applicant repeated similar claims during the hearing.

    [63]   Findlay, Odgers and Yeo, Australian Criminal Justice (Oxford University Press, 2^nd ed, 1999), 268.

25. This ground should best be seen as an aspect of claimed hardship resulting from incarceration.  As has been pointed out, the applicant’s claims are not new though they have become increasingly dramatic if not, in some respects, far‑fetched over the years. 

26. The applicant offered no credible or convincing proof that he has any of the conditions he has described and diagnosed let alone that he has not received adequate treatment for whatever conditions or symptoms he may have. 

27. There is no basis offered, let alone any credible basis, for the assertion that there have been “acts of revenge” perpetrated against the applicant.  This proposed appeal ground is without merit.

    Proposed appeal ground 3 - the applicant was of good character

28. In his Notice of Appeal and affidavit, the applicant called in aid his medical studies and practise as a psychiatrist as evidence of his good character and contribution to the community:[64]

    After graduating in medicine from the University of Sydney, I worked as an intern and resident medical officer in medicine and surgery at the Royal Prince Alfred Hospital, a major teaching hospital in Sydney, working 80 hours/week on average for three years.  I commenced psychiatry training in 1983 becoming a Fellow of the College of Psychiatrists in 1988.  I was thereafter employed as staff (salaried) psychiatrist and university lecturer in teaching hospitals.  During the course of my career I saved hundreds of lives both as part of a team and individually, relieved suffering many times on a daily basis, and made significant contributions to psychiatry in my local service over and above the provision of standard care.

    [64]   Applicant’s affidavit affirmed 30 January 2023, [8]; materially similar facts are set out in the applicant’s affidavit affirmed 28 April 2023, [9].

29. In his written submissions the applicant repeated these matters and emphasised that good character is a separate mitigating factor from an absence of previous offending.[65]  The applicant accepted that Duggan J acknowledged that his murder conviction was his first conviction, but he submitted that the sentencing judge was not aware that:

    [65]   Citing Weininger v The Queen [2003] HCA 14, [29] (Kirby J). In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14, the reasons of Kirby J (in dissent) appear at [34]-[95].

    I had also never even been charged with any other offence.

    I had never been investigated on suspicion of any illegal activity. 

    I was never audited by Medicare.

    I was never investigated by the Tax Office or by Medicare.

    Prior to Tobin there were no complaints about me before the Medical Board or the Health Care Complaints Commission.

    I was never sued for malpractice or anything else.

    Since incarcerated in 2002 I have never:

    engaged in any malicious act;

    engaged in any violent act;

    been found with or suspected of having a weapon;

    been found with illicit drugs (all urine tests negative for illicit drugs).

30. The applicant appeared to contend that the failure to put this material before Duggan J resulted in a miscarriage of the sentencing process.  As has been observed, by the time of the sentence hearing before Duggan J the applicant was familiar with the sentencing process and, in particular, the opportunity to lead evidence in support of his submissions in mitigation.  He rejected the offer made by Duggan J to order pre-sentence reports.

31. Not only has the applicant failed to demonstrate, even arguably, that he was unaware of his relevant rights and duties, the approach he took in 2009 is capable of being regarded as representing a rational forensic decision.[66]  Indeed, there is much to be said for the proposition that the applicant likely determined to take a very different approach before Duggan J when compared with the approach he had taken before Vanstone J.  One can readily imagine that the tone and brevity of the applicant’s submissions before Duggan J were intended to evoke whatever sympathy he could at that stage of the sentencing process. 

    [66]   Cf, TKWJ v The Queen (2002) 212 CLR 124, [16]-[17] (Gleeson CJ), [107], [112] (Hayne J).

32. In any event, his sentencing remarks reveal that Duggan J approached the question of sentence on the basis that the applicant was previously of good character because that informed why the applicant’s “own situation” was a “tragedy in itself” having regard to what had been a “promising career … as a psychiatrist”. 

33. There is no merit in this proposed ground of appeal.

    Proposed appeal ground 5 – the failure of Duggan J to advise the applicant of the adversarial nature of sentencing proceedings amounted to a denial of procedural fairness

34. The authorities in relation to the assistance that must be given to an unrepresented party have been discussed.  This case is different to many because, by the time of the sentencing hearing before Duggan J, the applicant had conducted a remarkable amount of litigation without legal representation, and had made detailed, cogent submissions in mitigation of sentence before Vanstone J.  The denial of procedural fairness asserted by the applicant must be evaluated in that context.

35. When one has regard to the hearings before both Vanstone J and Duggan J, it is clear that the applicant was both apprised of his legal rights and in a position to address both the evidence and submissions relevant to his sentence.  There is no basis for the suggestion that the applicant was denied any opportunity to be heard on sentence or that he was unaware of the adversarial nature of the sentencing process.

36. Justice Duggan gave the applicant several weeks to prepare submissions on sentencing.  Whilst it is clear that the applicant did not address Duggan J at any length, it is equally clear that he elected not to do so.  There is no basis for the suggestion that the applicant did not lead evidence or make submissions out of ignorance concerning the sentencing process. 

37. There is, in any event, a well-recognised difference between the court explaining the process and the rights that may be exercised by an unrepresented litigant and advising that litigant how those rights should be exercised.[67] 

    [67]   MacPherson v The Queen (1981) 147 CLR 512, 535 (Mason J).

38. In the circumstances of a case involving an experienced, unrepresented litigant, no detailed explanation was required from Duggan J.  His Honour was not in any event permitted to advise the applicant.  This proposed appeal ground is without merit.

    Proposed appeal ground 6 - the applicant had no previous criminal history

39. This proposed ground is inconsistent with the previous ground in which the applicant acknowledged that the sentencing judge proceeded on the basis that there were no prior convictions.  It is telling that Duggan J emphasised that the absence of a previous criminal history was an issue of little moment given the kind of serious, pre-meditated offending in this case.

40. There is no merit in this proposed ground.

    Proposed appeal ground 7 - sentencing for planned offences against others

41. Justice Duggan referred to the applicant’s resentment toward Dr Tobin as well as the “other people you believe were working against you”.  After referring to the list of people which the applicant compiled which was discovered by police after arrest, Duggan J said:

    The only reasonable inference to be drawn from the preparation of that list and the writing down of the initials of some of these people on another document is that the documents were prepared for some purpose associated with your anger and resentment at their involvement in the proceedings which led to your deregistration.

1. In contrast to the sentencing remarks of Vanstone J, Duggan J did not make any finding that this list was connected with planned offending.  There is no risk that the list was treated as separate criminal conduct for which the applicant was sentenced.[68]  Indeed, no finding at all was made as to the purpose for which the list was prepared, apart from that it was “associated with your anger and resentment”. 

   [68]   Cf The Queen v De Simoni (1981) 147 CLR 383.

2. There is no merit in this proposed ground. 

   Proposed appeal ground 8 - erred in giving weight to a psychiatrist’s claim that the applicant was likely to reoffend

3. In his written outline, the applicant criticised Professor Phillips and his opinion and called in aid the psychology opinion from 2014, mentioned earlier.  There is no sign in the sentencing remarks that Duggan J gave any weight, let alone undue weight, to the opinion of a psychiatrist that the applicant was likely to reoffend.

4. More importantly, perhaps, it would not have been an error if the sentencing judge did have regard to expert psychiatric opinion evidence of this kind.

5. There is no merit in this proposed ground.

   Proposed appeal ground 9 - erred in characterising the shooting as “particularly violent”

6. In the applicant’s affidavit affirmed on 28 April 2023 he attempted to minimise the violence associated with his offending:[69]

   Tobin was shot four times in the torso in quick succession; there were no head shots.  Staff immediately came to her aid; she died not alone but surrounded by caring colleagues.  She quickly became unconscious, her suffering lasting a matter of seconds.  In fact harm to the victim was at the least severe end of the spectrum of lethal violence.  In addition, there was no sexual or sadistic element; there was no desecration or mutilation of the body; there was no trophy collection.

   [69]   Applicant’s affidavit affirmed 28 April 2023, [29].

7. None of these submissions demonstrate that the offending was other than particularly violent. 

8. This proposed appeal ground is without merit.

   Whether the sentence was manifestly excessive (proposed appeal ground 4)

9. Notwithstanding the applicant’s written reply submissions withdrawing this ground on the basis it is “subsumed” by proposed appeal ground 7, it is appropriate for the Court to address the issue of manifest excess as presented in the notice of appeal.  It was not entirely clear that the applicant intended to abandon any suggestion that his sentence was manifestly excessive.  At times, the applicant appeared to contend that the effect of various of the specific errors alleged was that his sentence was, as a result, manifestly excessive. 

10. The applicant submitted that his 30-year non-parole period contrasts unfavourably with what he contended is an average 17-year non-parole period seen in a recent series of murder cases considered by the Court of Appeal.[70] 

    [70]   Klosowski v The Queen [2021] SASCA 85, [36], [45]-[51] (Kelly P and Livesey JA). See also R v Stewart (1984) 35 SASR 477, 478-479 (King CJ); R v Peet [2018] SASCFC 91.

11. There is no substance in the assertion that the cases reviewed in the matter of Klosowski v The Queen – a case involving a double murder - demonstrate any “average” non-parole period which is of relevance to the determination of sentence in this case.  Even if an average were thought to be relevant (which it is not), the average of the non-parole periods reviewed in that case were much higher than 17 years.

12. In addition, the applicant contended that the sentencing judge gave undue weight to the psychiatric opinion of Professor Phillips, that the applicant was likely to reoffend, and effectively imposed a sentence of “preventative detention”.  The applicant relied upon the psychologist’s report from 2014 which assessed him as “mentally stable” and at “low risk of reoffending”.[71]

    [71]   Report of Kimberley Gilson, Senior Psychologist, dated 10 December 2014.

13. There is no need to repeat the conclusions reached regarding the assertion that the sentencing judge gave any consideration to any psychiatric opinion which had been led in the case before him.  The psychologist’s 2014 report has not been received on this application because it does not demonstrate that the sentence is unjust or should be reconsidered.

14. Nonetheless, there were a number of matters which supported the long non‑parole period which was set in this case. 

15. The offending arose out of the applicant’s dysfunctional response to Dr Tobin’s genuine and proper concerns about his fitness to practise as a psychiatrist.  Rather than comply with the conditions set by the Medical Board of New South Wales, the applicant failed to comply, was deregistered and during the eight-year period that followed he planned his revenge.  This included following Dr Tobin to Brisbane in April 2002 before he travelled to Adelaide in October 2002 in order to perpetrate what was a carefully planned, cold-blooded assassination in her place of work.

16. Whatever the tragedy associated with the applicant’s personal circumstances, and notwithstanding his prior good character, the circumstances of the applicant’s offending and the absence of any contrition demonstrate that there were no mitigating circumstances. 

17. The sentence imposed on the applicant, here the non-parole period, needed to reflect the abhorrence and denunciation of the community, together with the need for its protection.  Deterrence and punishment were also important, relevant considerations.  There can be no suggestion that this was a sentence which was other than reasonably proportionate to the circumstances of what was gravely serious offending, having regard to the circumstances of the offender.

18. The applicant’s offending called for a severe sentence.  There is no merit in the contention that the sentence is manifestly excessive.  No basis has been shown to vitiate the exercise of sentencing discretion by Duggan J in this case.[72]

    [72]   House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357, [27]; Elias v The Queen (2013) 248 CLR 483.

    Conclusion

19. The applicant is intelligent and articulate.  By 2009 he was well-acquainted with the adversarial nature of the sentencing process and able, if he chose, to lead evidence and make submissions in mitigation of sentence. 

20. None of the proposed grounds of appeal has any merit.  None of the materials put forward in support of the application demonstrate any possibility of a miscarriage of justice if an extension of time is not granted.  Apart from the applicant’s affidavits affirmed on 30 January and 28 April 2023, to the extent that the proposed further evidence was not already before Duggan J, none of it should be received. 

21. In the circumstances, there is no utility in granting an extension of time to seek permission to appeal against sentence.

22. The orders of the Court will be:

    1.The application to receive further evidence is dismissed.

    2.The application for an extension of time is dismissed.

    3.The application for permission to appeal sentence is dismissed.