Huish v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H12 of 1987
B e t w e e n -
MAURICE EDMOND DAVID HUISH
Applicant

and
THE QUEEN
Respondent

Application for special leave
to appeal

WILSON J

DEANE J

DAWSON J

TOOHEY J

Huish

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA. ON WEDNESDAY, 5 OCTOBER 1988, AT10.17 AM

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5/10/88

MR P.W. SLICER: If it please the Court~ I appear together
with my learned friend, MR S.J.D. KNIGHT, for the applicant. (instructed by Dobson Mitchell
& Allport)

MR A.R. JACOBS: If it please the Court, I appear together
----with MR H.M. LAMBERT, my learned friend, for the
Crown. (instructed by the Director of Public
Prosecutions)

WILSON J: Yes, Mr Slicer.
MR SLICER: If the Court pleases, it is contended in this
case that the evidence admitted was unfair in
that it placed a pressure or had an effect upon a jury in relation to issues of credibility and
planning or premeditation of the accused in relation
to the crime of murder and, secondly, that it
operated unfairly on the jury in that it provided
for a reconstruction of evidence to the jury and
that it operated in such a way as to overwhelm
the jury in its task. So the central theme of the applicant's argument is that the effect of the evidence complained of which was of a
psychiatrist called in rebuttal was not to advise
the jury on a scientific matter but to sway the
jury by making inferences under the guise of
opinion evidence.

WILSON J: Mr Slicer, are you going to favour us with a
written outline of your submissions?

MR SLICER: I apologize, Your Honour.
The way in which that argument is developed
1s set out in the three first propositions contained
in the written submissions and just to paraphrase
them: the extent to which the psychiatric.evidence
can go as to credibility and reliability where
sanity is an issue; the constraints, if any, upon
the Crown in a rebuttal case on the issue of

insanity and, thirdly, the limits, if any, to
the leading of rebuttal evidence in the absence
of cross-examination of the defence witnesses.
Now, the judgment, if I may just briefly

go to the summation of facts before going to the
issues - the judgment of the Court of Criminal Appeal
primarily sets out the facts which really are

not in dispute. Your Honours might care to go
to 1766 in book VIII.

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Huish

MR SLICER (continuing):

I should say that I will only be

quoting, unless asked, from the judgment and
the evidence of Dr· Fell which is set out in
books V and VI. But basically what had happened
was that the accused was convicted of the murder
of a friend or a friend student who was his rival

=--- for the affections of a female student. What
had occurred was that there had been a relationship
between the accused and the deceased, they being
friends for some time and at the university.
The victim had formed a relationship with another university student, a young woman. The
three had retained some form of friendship with
themselves. Some months prior to the killing the accused and the girl friend of the victim
had had a sexual relationship which was transient
and the girl had spurned future advances from the applicant. The applicant had continued -
the relationship had continued between the three
but with growing signs of coolness or coldness
on the part of the victim and of the young lady.

The circumstances of the killing were

bizarre in that it later transpired that the
accused had gone - or one of the issues was the accused had gone to the flat of the victim, had stabbed the victim in what appeared to be a

frenzy. There was something like between 27
and 40 separate blows with a knife to the body
of the victim. In the course of the police
investigation the accused denied any knowledge
of the circumstances surrounding the killing
and subsequently told a number of versions about
the killing, one of which was that a girl, Linda,
whom he had met had gone with him to the flat
and she had done the killing and this became
focused into a proposition that he was Linda,
that is, he had assumed the identity of Linda.
Further police investigations revealed that

a person matching the description of the accused
had some short time prior to the killing purchased
a wig, a female wig, had purchased items of female
apparel and had dressed up on the night of the killing in such a way that he resembled a young
woman and then it became part of the defence
case that the accused claimed that he had begun to have thoughts and in the process of dressing
up at his flat before going to the flat of the
deceased had began to take on the role of a woman.
He had gone to the flat in an attempt to seduce
his male friend, as a woman, would show that
his friend was unworthy of the love of the young
lady to whom the friend was attached and that
he had absorbed the role of a woman and was, in
fact, taken over, shall we say, by that personality which,
through the trial, was given the name Linda.

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Huish

WILSON J: This was the defence case, was it?

MR SLICER: This was the defence case and there were a number

of differing accounts which you could take to mean
either that he was simply describing, in the early
days, a factual scenario of dressing up to trick in
__ order to gain entry or whether he had taken over the
role, we say the first story was that Linda was
a person separate to himself - two physical beings

had gone to the flat. The second, it took one to
believe that he had dressed up in order to seduce or trick the victim and to show by falling for seduction
that he was unworthy of the love of the other girl.
It then developed further into an.absorption of
role so that he was describing a scenario of he/she,
being the one person but having two personalities,
so as to speak, acting it out and the defence was that
in fact it was Linda, the other person to the accused,

who had done the killing in an act of frenzy. That was
the central thrust of the accused's story.

WILSON J:

So did the defence accept the accuracy of the later

statements to the police that outlined the way in which
Linda had gone to the flat?

MR SLICER:	Yes, but for one, the accused conducted a record of interview which was not substantially - it made
reference to Linda in going there. There was a second
briefer statement made to the police after his arrest
WILSON J:	A later statement?

MR SLICER: Yes, which he said, "Well, I was tricked into that".

WILSON J: But one of those later statements says that he had

formed the intention to kill the deceased some time before?

MR SLICER: Quite so.

WILSON J: Was that in dispute, the making of that statement?

MR SLICER:

No, the meaning behind or the interpretation of the statement was in dispute. The fact that he had made

that statement or that that statement had been taken
by the police in his presence was not in itself in dispute.
If I can just pause there. It became a little more
complicated because this was a retrial and on the
first trial a number of statements in the form of
instructions to his solicitors, which had been handwritten,
and a nature diary or a nature journal which set out
other thoughts in relation to killing or plan or fantasy
or personality or the existence of Linda appeared in a

whole set of fragmented versions. So by the time we had
got to the second trial the Crown were able to adduce, as part of its case, material which had been put in in the first trial which were in the form of instructions,
notes, journals and so on which psychiatrists, of course,
had made use of in the first trial as part of their
interpretation.

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Huish
MR SLICER. (continuing): I think, Your Honour the central thrust of

the existence of non-existenc; of Linda was that
there had been a number of different and
competing versions given by the accusecl= which were contradictory, some of which pointed to,
shall I say, a rational planned or thought out
=---murder; some of which pointed to a provoked murder, "I was insulted; he rejected me; he used
lang~age. at me," and some of which pointed to
the claim or allegation that the person who had
killed was a real Linda as distinct from a guise

or disguise in order to gain entry. So that we
had a series of propositions which the jury had to
determine, first of all as to which statements
they thought were believable; they had to believe
whether statement A was true or statement B or statement C or, on the evidence, whether by a process which the psychiatrist described
as confabulation or a memory gap caused by
the occurrence of a psychotic episode, he was
reconstructing a series of probabilities or
possibilities which matched the gaps in his
memory or, B, whether he was simply playing
games with the judicial process by inventing
a number of stories in order to avail himself
of a psychiatric defence, and I think that became
the central issue in the particular trial.

I should say that in support of the claim

that the accused was under the existence of a
mental disorder which would explain the various
stories and so on, both the Crown and the defence
in their case, adduced evidence as to the background

of the applicant. The Crown could do it in terms
of calling the young lady and various university
friends who could give accounts of behaviour
and things that he had done and said, which were
relevant to the trial, so they were not complaining

about that. And the defence did it in the form
of calling the father and the friend of the
accused again, so we had background information

going to the existence or otherwise of a mental disorder.
(Continued on page 6)

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Huish

MR SLICER (continuing):

The defence also called psychological

testing, IQ, person~lity disorder, the various
range of psychological testing. The notes and
drawings made by the applicant which have been
tendered in the previous trial were, in this case, tendered by the Crown. Evidence of an
---abreaction test was admitted to the jury and a tape recording of the abreaction test, that is,
a test under the effects of two chemicals, one to
relax and the other to release inhibitions where
the applicant was dressed as a woman as closely
as possible to the account of the night and was
then examined by two psychiatrists. That evidence
was admitted not as to any truth of what he said -
it was not suggested that there was an actual
reliving - but as to whether the psychiatrist
by the introduction of that test could see within
him any emotional tags or signs which would point
them in the direction to the existence of a
psychosis or a form of disorder.

WILSON J:

That was led by the defence?

MR SLICER:

That was led by the defence and became one of the central, shall I say, battle grounds during

the course of the trial.

And, finally, the

defence led opinion evidence based on a series

of personal examination by three psychiatrists

and finally, of course, the parties had materially

adduced during the course of the trial. The

propositions in support of this appeal are all

canvassed in the decision of the Court of Criminal

Appeal.

It might be of use to at least concede

that the propositions that we want to put are

contained in the reasons of judgment and it might

be of use to this Court if I simply briefly go

through them because they pose the questions

that we wish to pose.

We simply say that their

propositions are correct, it is the non-application
of those propositions that we say is the error

of the Court of Criminal Appeal.

DEANE J:

Is there any error of principle that you point

to, to attract special leave?

MR SLICER:

Yes, Your Honour, I am sorry.

I am saying the

propositions correctly define the issue that we

are contending. We simply say that the conclusions
which the court reached in the application of

those propositions themselves are wrong. I apologize

for that. The first proposition is contained on
page 1770 over into 1771 where His Honour - a single
judgment, of course, the other two judges are
concurring:

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Huish
MR SLICER (continuing):

Often the difficulty lies in identifying
the precise limits of what is his special

expertise and what is knowledge commonly
possessed by lay persons who make up the

jury. Sometimes in warming to his theme
the expert witness may resort to persuasion

as to matters of disputed fact on which
his opinion is based. Depending on the
circumstances there may be a danger that
although the expert witness' impressive
scientific qualifications and forensic skills make him no better equipped to
form an opinion on matters of human nature

and behaviour within the limits of normality
than the jury, they may think that they do.
That danger will be a matter of degree,
depending on what form the trespass into the
jury's province took, its significance in
relation to the rest of the evidence and the
directions given by the trial judge.

I will just go on. We do not complain as to the
directions of the trial judge, although one of the
implications of his directions causes a problem,
but we do not complain about the way in which
His Honour charged the jury.
If there were some imperfections in the
trial in the above sense it remains a
question whether this Court is of the
opinion, having regard to the whole
context of the trial, that the appellant
has suffered any injustice or not had
a trial according to law.

DAWSON J:	What is- all that saying?
MR SLICER:	I think Their Honours are saying that there are

problems with the calling of expert witnesses.

Witnesses will say -some expert witnesses will go over
the line or the border which the courts have set for
the distinction between opinion and direct statements
on matters of fact or primary issues, primary
questions for the jury, that that is always a danger
in a complex trial and at the end of the day an
appellate court must work out a balancing act as to
how far they have gone over the line as to whether

there has been a substantial injustice. That is
how I would interpret what Their Honours have said
there.

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Huish

DAWSON J:

But expert evidence is initially a question of

admissibility and ~emains a question of, .
admissibility - that is all that is involved.

MR SLICER:

Yes. That is our complaint that here the

opinion evidence was not admissible in any event -
:~·some of it was - I am trying to defend what
Their Honours are saying, in answer to your question.
I think what Their Honours are saying is, as you
start out in your process the court may have in
mind that the witness is kept within the boundary
fence, there is always~a risk with some witnesses
that they will escape the fence and go out into
richer pastures. I think that is what Their Honours

are saying there. And then they are saying:
when that happens an appellate court will not
intervene unless there is substantial injustice
to the applicant - that is as I read that part
of the judgment, Your Honour.

DAWSON J:

They are suggesting that initially the trial

judge should curb the witness and keep him within
the area of his expertise.

MR SLICER:

Yes.

DAWSON J: All right.

MR SLICER:

And that at the first gate opening you have

got to make a very hard decision as to where the
trial is in fact going.
The second matter in which the judgment might be of use is that the court said that in
this case the questions of memory and differing
accounts were central to the issue of sanity and
it flowed from that - - -

WILSON J:	Where do they say that?
MR SLICER:	I have got 1773, Your Honour. I think I am wrong

as to that. Can I come back to that? I have given
myself a wrong page number for that but I will
go to my next proposition which flows from that -
at 1774, that is page 9 of the judgment.

(Continued on page 9)

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Huish
MR SLICER (continuing):

In the light of this evidence -
that is, the evidence of doctors, three psychiatrists,
called by the accused -
the Crown was clearly entitled to call evidence
in rebuttal, not merely of the specific
evidence called by the defence, but generally
on the issue of insanity raised by it.

And I should pause to say there that that is
a matter with which we take issue with the court,
that the provisions of section 381(4) do not
entitle the Crown, in a rebuttal case, to raise
sanity at large. There are limitations on the
way in which the Crown can rebut the particular case of insanity of the accused. So it may be, reading that judgment, that that is the second

point of contention. We do not contend that
there are no delimits upon the Crown although
we do not argue here that the Crown was not entitled

to call evidence in rebuttal. We do not contend
that at all, we do not contend that the Crown
is not entitled to call issue of sanity and can
even call factual material if it destroyed part
of the factual material raised in the defence but simply to say that section 381(4) enables the Crown in rebuttal to have a new case, an

entirely fresh case on sanity goes beyond what

section 381(4) says. So that is the second
proposition.

WILSON J:

And using the key phrase, "the prosecutor may

ca 11 evidence of sanity", that is a unique wording,
is it not, applicable in this case?

MR SLICER: In 381(4).

WILSON J: Yes.
MR SLICER:	Your Honour, I can find no similar legislation

or references in other jurisdictions - New Zealand,
Canada and certainly not the common law.

WILSON J: It would almost seem to be at large, "the

prosecutor may call evidence of sanity".

MR SLICER:

Of sanity.

WILSON J: Full stop.

MR SLICER:

And then one goes to the next - it stops there

but in any other case - - -

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Huish

WILSON J: "Such evidence", that is evidence of sanity.

MR SLICER: "May be called by him in rebuttal". The
question then is what is meant by "rebuttal".
The Court of Criminal Appeal in Tasmania in
HITCHENS looked at that and from its judgment

----_ - i t doe s no t a pp ea r th a t the re a re no de 1 i m i t s
upon the right of the Crown and, in fact, the
Court of Criminal Appeal in HITCHENS said that
the trial judge would have a discretion as to
whether to permit the Crown to call that evidence

in any event. And my contention would be - I
will come to HITCHENS, but my contention would
be that that discretion in the judge is to ensure
that the Crown is calling evidence in rebuttal;
that is, it is in some way relevant to the material
or follows to rebut the material raised by the
defence in its judgment.

But, Your Honour, I concede that

section 381(4) - I can find no equivalent proposition
to section 381(4). If I can go to my fourth area of the issues canvassed by the Court of
Criminal Appeal - on page 1776, at the bottom:
It was of course for the jury to determine
how much, if any, of that material was
factually correct and to evaluate his opinion
accordingly.

And I do not have any difficulty. That is our

central proposition as to here. And Their Honours
then repeat at: 1777 2 of the specific complaints -
I will not pause . to those because I will deal
with those in the course of the evidence.

(Continued on page 11)

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Huish

MR SLICER (continuing):

But the Court of Criminal Appeal

acknowledged the effect of the opinion evidence on
the jury because what the psychiatrist - the rebuttal
evidence, what the last witness the jury heard was
saying was, I will tell you that this man was acting

when he underwent the abreaction test. I will tell
~-you that this man was consciously telling a series
of stories in order to confuse the judicial process.
I will tell you that this man was able to be cold
blooded in his planning and preparation for this
and I will tell you, in the fonn of a plan which I will
come to later, it is attached to the affidavit, I
will tell you how the evidence, given by the witnesses
at this trial, will show that this man was planning,
was conscious of what he was doing and was lying or
acting when he gave the various stories.

DAWSON J: Were these purported as the basis of the ultimate

opinion which was expressed, namely that the man
was insane?

MR SLICER:	Yes, Your Honour.
DAWSON J:	The jury were free to disregard that opinion if

they did not accept the facts?

MR SLICER:

We say that it was not opinion at all.

It was not

opinion -

DAWSON J:

No..,. it was·stating the facts upon which the

opinion was ultimately based?

MR SLICER: No, Your Honour, I will come to that later. But

what he was saying was, "I will tell you, I do

not believe this man. I will tell you that I do not
believe that that be genuine and therefore - - -

DAWSON J:	Then on that basis he formed an opinion?
MR SLICER:	Yes. Having done that though, even that may have

been, shall we say, permissible within the parameters

of psychiatric evidence, having done that he then
erected an edifice in the form of a plan from the
various accounts, interpreted the accounts as to what
they meant or what he meant them to mean. "I meant
to say that Huish was deliberately planning at
that time, therefore that shows an act of conscious
deliberation." It is in a way the third phase, having
said, "I do not believe , I am of the opinion there
is no psychiatric disorder"-and I am not quibbling
that this witness could not say, "I do not believe
there is a mental disorder present" -he then erected
an edifice of persuasion or inference based on
his interpretation of the eviden~e given at the trial - - -

DAWSON J:

He would rather have to erect that edifice first,

would he not?

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Huish

MR SLICER: Well, maybe. Your Honour, we will see how it

develops because he. starts off with the proposition, 11 I saw this man and I do not believe him. I saw

him in the box and he looks normal to me. I have an
opinion there is no mental disorder and now I will
take you through the evidence and I will show you

-----iny interpretation of the evidence as to what he meant when sai , x or w at e meant wen he sai , y 1111

'd h h h 'd" fl

and I will pull that together into a theme or an
inference which shows that we are dealing with a
liar, a person who cannot be believed and a man who
is consciously and cold bloodedly planning the
murder". That is the third - - -

DAWSON J: Yes, I see what you mean.

WILSON J:

But when you describe his evidence as saying, "I

will tell you", that is your consti:uction of

the effect of his evidence. He was expressing it as -
the little I have read of his evidence, it was always
open to be drawn back to the expression of an opinion,
was it not?

MR SLICER:

There are some phrases which one would find it

very difficult to take that interpretation. For
example, at one stage he says, "and I will tell you as

a psychiatrist that that be not true". It was going
far beyond the, what we will contend are the
permitted bounds. And I should say that, Your Honours,
the evidence of Dr Lopez and Dr Wilson, who are two
psychiatrists called by the Crown, also gave opinion
as to what they thought was the diagnosis or what
they thought was a series of propositions and really
we did not quibble with that at all and the judgment
indicates that even in the Court of Criminal Appeal
we said, ''vell, look, that is within the bounds of
opinion evidence, Dr Bell is totally outside the
parameters of psychiatric evidence."
The effect of that was recognized by the Court

of Criminal Appeal, page 117 at the bottom. (Continued on page 13)

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Huish

MR SLICER (continuing):

Can I just pause and go back to

the previous question, Your Honour, because 1777,
in a way, has one of the answers I want to give,
that is:
"As a psychiatrist who has listened to many
mad people, I repeat that that particular
voice is the caricature of a mad person.
It is not the genuine article. It is what
a lay person thinks happens when a mad person
speaks."

Now, that is very hard to characterize as an opinion

of "I don't believe". He is saying, "I will tell
you as a psychiatrist that that voice which you
and I heard, members of the jury, is a caricature

of a mad person." So his opinions were not just,
"Well, if I am asked to accept whether his evidence
is true I will say, 'I don't believe it', and if
that is the case you may proceed to proposition X.
If it is true then you may proceed to proposition Y." It is not that form of evidence at all. The effect:
Undoubtedly the effect of his comments would have been adverse to the appellant's
general credibility, but the fact that they
may have had this effect does not mean that
Dr. Bell's evidence was used as a vehicle
to attack credibility or that the effect made
the evidence inadmissible.

The court is setting out that certa:inly the effect on
the jury went to the question of credibility and it says the effect does not make inadmissible, we
say it did, because some passages only went to
credibility, they could not be taken as being

comments within the psychiatric discipline. Now,
if I can go to the next effect which the court
recognized at 1778. You will see that the
reference is made to a document which was:

used as an aid in the presentation of his
oral evidence in much the same way as a
drawing on a blackboard. From this
compilation of the different versions of
the appellant, Dr. Bell concluded that as
a psychiatrist he could see nothing in it
which indicated mental illness.

That is the first phase which I mention to Your Honours
at the moment.
Rather he saw a consistent pattern - "a
pattern of the evolution of an idea and
this does not have a psychiatric explanation
that I can see, but it can be explained in

other ways". The evidence no doubt had a

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Huish

tendency to per$uade the jury that the
appellant had consciously lied for a purpose,
but in my view it was perfectly permissible
that the witness should express his view
that the variations in the story themselves
demonstrate a purposive, non-insane pattern.
The manner in which the chart had been
compiled was attacked in cross-examination
and on appeal as inaccurate and selective.
But errors of fact -
because we say we showed that there were -
errors of fact and selectivity were proper
matters for cross-examination by the
defence and conn:nent to the jury and did
not affect the admissibility of his evidence.

We take issue with that as a proposition
enunciated by the Court of Criminal Appeal. That
witness may well be able to say, "I was told story,
A, B, and C" - and as in one case that I will come to he might even say - "Look, I had doubts about
story A and if my doubts are true then the edifice
falls away" or whatever. That is a different
proposition from saying, "I have made factual
errors. In other words, by belief is that he is
lying and that is based on factual errors, on
evidence which was not properly before the court,
on a wrongful interpretation of material before the court", we say,
makes that evidence inadmissible. It should also
be said that Dr Bell had never examined the
appellant. He had simply sat in on the second trial,
during the course of the trial and had - and there is
a problem with that but I do not raise it too highly:
he· had. read the transcript of the first trial
and was thus bringing in extracts from the first
trial as aforrnulation of his opinion in relation
to the second trial.

WILSON J:

That was true of the defence witnesses as well,

they were actually involved in the first trial,
were they not?

MR SLICER:

The defence witnesses, (a) had - two of them

at least, sorry, Dr Mccafferty had not - two of
the defence witnesses had examined the accused
before the first trial, given evidence at the
first trial, sat in for certainly portions of the
first trial and conceded that they had difficulty
in differentiating in their own minds material which
they had heard in the first trial which was - they found
it difficult to say which part of their opinions in
the second trial had been affected by the first

trial, yes, Your Honour. But they did not set out
portions of the first trial or their participation in
it as forming part of that material.

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Huish

WILSON J:

But as long as what use is made of the evidence

in the first tria~ is clearly put forward only as a
hypothesis upon which an expert opinion is based,
would you have any objection to that?

MR SLICER:

No, Your Honour, and I should say that

-~--substantial parts of the evidence of Dr Bell in
relation to the first trial had been - he said,
"I will tell you the accused said at his first trial

'X"' _ had· been passages put to the accused on

the second trial by the Crown. So not too much
complaint is made about that, but some of his
comments about the implication of the first trial
were.
The defence had attempted to lead its evidence on the basis of assumptions and propositions, and I
will not take Your Honours to that, but we had not
attempted to lead opinion as to lying, credibility;
we had attempted to ask them to make assumptions and
propositions and if I can go to the passages - but
certainly the way we led, we say, was a proper way
of leading. We did not, in other words, invite or
cause the way in which the rebuttal evidence was given by our own conduct of the case. We did not
ask our witnesses to give evidence of primary facts,

of belief, of propositions. We asked them to make
assumptions, we asked them to talk about their
examinations, we asked them to make a diagnosis in
accordance with assumptions, as distinct from making
assertions of fact, and so on.
I simply say that to say that we did not - the

conduct of the defence in the way that it led its
opinion evidence was not such as to cause the Crown
to be able to say, "We had to do it because you had
led that form of evidence".

DAWSON J:

I do not understand that in this context.

The Crown

was able to lead rebuttal evidence on the issue of

insanity. That meant that they could call psychiatrists

to express their opinion that this man was sane.

MR SLICER:	Yes.
DAWSON J:	To do that, of course, they had to express the basis

on which they gave their opinion. They had to give
a factual setting and they did that and the mere
circumstance that the facts on what that opinion was
based were different from the facts on which the
opinions of your psychiatrists was based cannot matter.

MR SLICER:	No.
DAWSON J:	I thought you were saying it did.
MR SLICER:	No, I am sorry. What I am saying is that the

C2Tl 2/1 /HS	15	5/10/88
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defence had led their op1n1on evidence, we would say,

in the prescribed or required form. We had asked
them to make assumptions and on the basis of those
assumptions to draw conclusions or make diagnosis

or to give opinion evidence to the jury. We say that
the Crown psychiatrist, Dr Bell, did not do that.
Now, he may have been excused from doing that - - -

DAWSON J:

But he was entitled to make another set of assumptions on which he based his - - -

MR SLICER: Yes, we are not troubled by that.

DAWSON J: - - - and you ..... criticize that.

MR SLICER: If I could put it in a very unsubtle way
if the defence in this case had been naughty we might
be able to say, "On your own head be it". Supposing
we had called evidence which said, "Do you believe the

accused? Do you think he's guilty? Do you think
he has rhe requisite mental intent?", and so on, and the
defence had got away with that, then you may well
say the Crown are excused in at least doing the same
back. That is all I meant by it. We had complied
with what we say were the evidentiary standards.
We say the Crown did not. If we had not so complied
with; the evidentiary standards there may be
more justification for the Crown being able or
permitted to do what we say it was able to do.

DAWSON J: The jury were told that they were the judges of

the facts. You make no complaint about the charge
to the jury in this respect?

MR SLICER: They were told - no, no problems with that.

DAWSON J: And the mere fact that a witness said, "I didn't
believe him, so I discounted that fact and did not
take that into account in forming my opinion" cannot
matter in those circumstances.

MR SLICER: No. I follow that and if that were limited to a
proposition like that we would not disagree with
the way the evidence was given.

(Continued on page 17)

C2T12/2/HS 16 5/10/88
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MR SLICER (continuing): It was the totality of a series

of saying, "I will tell you this man is acting; therefore because he is acting there then he is lying, here, here and here. Because he is lying
here, here and here, there can be no mental
disorder in the terms of psychiatry; because there

---is no medical disorder in the terms of psychiatry

he is therefore lying, playing with justice and it
was a cold, willed, premeditated act, and I will
now tell you how you can work back to that
conclusion by reviewing the various accounts in a
form which I will tell you proves my proposition."
It is that process with which we take issue.
I will develop that - it will be necessary for

some little time, at least, just to go through the
evidence of Dr Bell to say how that process occurred

and, at the end of the day, because he was the
last witness that that jury heard in a very long
trial, in rebuttal · evidence. The jury had - we
say that it operated to such an extent that the
jury would be persuaded by that evidence in the guise
of an eminent expert not to be able to properly
consider the factual material and the credibility
upon which the edifices of the various - - -

DAWSON J:

I take the point.

You say Dr Bell was acting as

an advocate and did not restrict himself to stating
the facts on which he ultimately gave his opinion,
either assumed fact or otherwise.

MR SLICER:	Yes.
DAWSON J:	And in that way his evidence, if you can call it

evidence, Oll that as~tion was unfair, but that is
what you have got to demonstrate, is it not?

MR SLICER: Yes, well, I will spend some little time just pointing

out how that develops.

DAWSON J: That is the one issue.

MR SLICER:

I do not want to abandon the issue of credibility,

but I suppose that is rolled up in the same question.

DAWSON J: That is advocacy.

You say he was saying that this

witness should not be believed.

MR SLICER:

Yes.

DAWSON J: Yes.

WILSON J:

And it was in the context, I take it - and it may

be a fine line - that Dr Bell's opinion was that this man was - the psychiatric opinion was that this man was sane.

MR SLICER:

Yes.

C2Tl3/l/VH	17	5/10/88
Huish

WILSON J: And in order to explain that opinion was he
entitled to take up some of the evidence and the evidence of behaviour of the applicant -

MR SLICER: Yes.

WILSON J: - - - and say that behaviour is not inconsistent
with my opinion because I do not accept that
he was telling the truth.

(Continued on page 19)

C2T13/2/VH	-1a	5/10/88
Huish

MR SLICER:	I would not take issue with any of those three propositions if _the doctor - - -
WILSON J:	Even though the doctor is, in opinion form,

questioning the credibility of the accused -
although only as his opinion?

MR SLICER:

No. I would not take issue with that at all,

Your Honour.

WILSON J: Is that not really this case

when it is all

said and done? There may be points at which the
form of the examination or cross-examination of
Dr Bell became somewhat extravagant and open to
question and I think the trial judge intervened
from time to time to just reassert the hypothetical
basis of the facts upon which Bell was being asked
to give his opinion.

MR SLICER:

Your Honour, there were two central propositions

being debated there. One was whether the differing
accounts of the accused were a process of conscious
lies or a mental process called confabulation.
The jury had to decide (a) whether they beli~ved
that differing accounts were conscious lies to
defeat or whether they were contradictory statements made as a result of the process.
The doctor was entitled to say,, "The witness X described
his state or he looked flustered or he looked calm
or whatever and that would lead me to believe
that at that stage he was not in such-and-such
a state." He can do all of those sorts of things
and he is entitled to say, "If he is telling the
truth in this court then there would be a disorder.
If he is not tellinR the truth in this court then
there would not be. He is entitled to do that.
He might say, "There are some propositions which I find difficult to accept and if I reject those
propositions, in my opinion as a psychiatrist,

there is not a disorder". We do not quibble with
that process.

What this doctor did was to say, "I will

tell you that what we saw in this court was a
lie and I will tell you that as a psychiatrist
and if that be a lie - if he is acting and lying
here - then it shows that the varying statements
occur not as a result of any psychotic episode
or any form of paranoia delusional episode but
as a conscious series of statements designed to
trick the judicial process." Now it is that process
with which we take issue.

C2Tl4/l/AC	19	5/10/88
Huish

WILSON J: We had better let you get on with it.

MR SLICER: But in any event, central is the credibility

of the accused. What was the jury to make of
his evidence, including his demeanour? And my
second answer to Your Honour is he was making an

- · interpretation of the evidence of others and
applying that interpretation with a view to

showing that the accused was lying. I should
say that the question of credibility was not
whether the applicant had made conflicting statements -
that was never a.n issue but whether that was
the process of mental disorder or a factual lying
process.
And the interpretation of those statements,

what the words meant, was a matter for the jury.
An interpretation of their internal linguistic

meaning went to that question and that is precisely

what the doctor was doing. He was interpreting

the answers. He was interpreting what the accused

meant when he said "X, Y and Z". He was interpreting
the internal grammar of statements in relation
to that and we say that that is outside the discipline
of psychiatric evidence.
I want, Your Honours, now to take you through

the passages that we say caused the problem or to show how the witness had begun his evidence
and I will invite Your Honours to turn to book V
and we will start perhaps at 1231 and I will

take Your Honours then to book VI. I will leave
1231 aside, it is a minor quote and I am not
going to take Your Honours through all the complaints.
I will try and go to the substantive matters.

WILSON J: I am sorry, which number?

MR SLICER: 1235 would be preferable.

WILSON J: 1235, thank you.

MR SLICER: I will start there. One of the central debates
or issues was the varying accounts which the
accused had given as to gaining access to the
flat of his friend before the killing and it was
important as to whether the accused had gone
there in the guise of Linda or whether believing

he was Linda, a female being of his own. And
one of the statements said that he gained entrance
by pretending or so by claiming as Linda:
"My boyfriend is after me" -

the person being pursued. And that was 1n issue
and the doctor says this:

C2Tl5/l/ND 20 5/10/88
Huish
"And he said -

that is the accused -
"My boyfriend is after me" which certainly
by implication means that he was considering
himself at that time to be acting".

So he starts off describing that. He then goes
to 1236, line 12:
The next voice, as I heard it, was that
of Linda being flirtatious and I thought
in being flirtatious also a bit stupid.
Words were such as "He was very nice",
"Oh, he looked so nice" and then there was
Linda being lascivious, perhaps I'm guilty
of illiteration in thinking of lascivious
Linda, but as in her lascivious -

"lasciviousness", I think that should read -
she was still stupid -

this was interpreting one of the statements that
the applicant had begun the seduction of the
victim in order to trick him so he could expose
his infidelity. And then the doctor begins to
interpret the evidence of Dr Burges-Watson and
you will see a series of fights about that going

to 1237. I am not going to pursue those simply
to say that what the doctor was doing was quoting
or taking a line or words from Dr Burges-Watson

and attributing it to him and so one. But however.

He then developed the of lasciviousness

on 1236:
Leigh put his hands on the chest of Huish -

Leigh being the victim~

"It felt very, very good". This 1s a -
not just lascivious Linda, it's a parody
of & sexually aroused woman.
(Continued on page 22)

C2Tl5/2/ND	21	5/10/88
Huish

MR SLICER (continuing):

Now, the jury were being asked to

determine the validity or otherwise of an abreaction
test. It was conceded that the abreaction test in no
way helped the jury determine the validity of the
account of the accused on the night. It was never
suggested that they were witnessing a truth drug
·--=experiment where truth came out in the form of drugs.
What was at issue was whether the abreaction test itself was a genuine test or a conscious process by
the accused to fool his own psychiatrist whether he

was acting. Now that was the central jury question.
The doctor starts off, not with an attack on the methodology of the abreaction test, but saying, "I
will tell you that this is a parody of a sexually

aroused woman, lascivious Linda" and it follows
from that that if it is a parody, then the
abreaction test is of no use whatsoever.
Now the ~entral issue for that jury was to say,
'~owe believe, not that he was giving us an accurate
account of the events of the night, but was that
a genuine test or experience or not because
doctors were saying, 'Well if it was, we show you
some of the emotion.Swhich point in the direction of
the existence of an underlying psychosis' ." This
doctor did not do that.

DAWSON J:

.:~_Why _Ls _'h,·e not saying, "Well, I did not believe it

and therefore I discounted it in giving my ultimate
opinion"?

MR SLICER:

No problem.

If he had said, "I will discount that

from my proposition and I will tell you that in my
opinion there is no existing mental disorder" it would

be very hard to attack that. He is saying, in the
guise of being an expert,"This is a parody of a sexually

aroused woman. That is acting." Now he has got no
more right as a psychiatrist when he points to that
abreaction test than anyone else to say whether that
is a parody of a sexually aroused woman or whether
the person is acting and so on.

DEANE J: But to say it is a parody does not saying anything.

I mean, is he saying more than what is there in
that one would expect a mad person,without experience,
thinking he was a sexually aroused woman, to present
a parody of a sexually aroused woman? In other words,
if a mad person thinks he is an elephant, he is
going to present a parody of an elephant, if looked
at from the point of view of another elephant. But
it says nothing to whether he is genuine or not?
I know the doctor goes on to acting in the next

being a parody? paragraph, but I just do not read anything into it

MR SLICER:

I bow to Your Honour on that.

C2T16/l/SR	22	5/10/88
Huish

DEANE J: No, do not do that I was just - - -

MR SLICER:

I was trying to work out how a lay person would

interpret a parody of an elephant. You see it is
in the eyes of the beholder as to whether what we
~-.are witnessing is a genuine emotional release or
whether it is somebody who is acting out, that is
putting on a parody of a sexually aroused woman,
to turn it around and say, "I will tell you that what
that person is doing is to a lay person a parody

of a sexually aroused person". I do not think that

is within the province of psych~~try. You cannot
turn the process around and say, B acause I tell
you as a psychiatrist that this is a parody of a
sexually aroused woman, it therefore goes back
and says that this man is acting." It is the
reversal.

DEANE J: That is what I was suggesting to you?

MR SLICER:

Yes.

WILSON J: But in saying that he goes on to say, there is

no difference of opinion, in his belief, between
Dr Burges-Watson, who was one of your psychiatrists and

himself. I mean, at s~veral points in these
pages he points up the extent of the agreement
between Dr Burges-Watson and himself?
(Continued on page 24)

C2T16/2/SR	23	5/10/88
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MR SLICER:

And that is immediately followed at 1237 by an

objection and for some time into the course of
this debate the defence are challenging this misuse
of picking out two or three lines, or two or three
words from the defence cross-examination, and using

:~it to, we say, misinterpreting it. 1238:

I'm challenging also the honesty of -

well, that was unfair of me, however, I did it -

of the recollection of what Dr. Burges-Watson
said.
Then we get into a discussion about what Dr Burges-Watson
said.

WILSON J:

Well, whether they agree or not at least they

both seem to be in the field of expressing opinions
about this test, the behaviour of the applicant
under the abreaction test, is that right?

MR SLICER:

The doctor himself concedes at 1239 at line 30,

31, he may have:
'misunderstood' , but that does not alter my
own interpretation of what happened or my
own belief about the significance of that
particular issue.

We were complaining that what he was doing was a
process of taking out one or two words out of
context, interpreting that that is what
Dr Burges-Watson meant and then adding into his
own opinion.

DEANE J:

But that emerged, did it not?

I mean, your

complaint seems to me, as I read the evidence,

to be quite right. He used the word "acting" in
a different sense to the sense in which

Dr Burges-Watson had used it. But that seemed to emerge clearly enough in the discussion and
was going to be resolved?

MR SLICER:

Yes, we resolved it, and I do not complain

in the end we solved the problem about whether
Dr Burges-Watson was at one with him on the word
"acting" but, nevertheless, he is able to go on
and say - - -

DEANE J:

It seems to me to be plain he was not?

He was

using "acting" in the sense that one could say that,
"You are now acting in your capacity as a barrister."
It would be unkind to say it of you in the sense
that Dr Bell - - -

MR SLICER:

That it was a parody· of an acting.

C2Tl7/l/MB	24	5/10/88
Huish

DEANE J:	- - - was using the word "acting".
MR SLICER:	Yes. So we were objecting to that methodology. I think the process went on that His Honour - that methodology was stopped and we went on then to

--pick up straight opinions or straight assertions.
And, of course, if the material had stopped here
I do not think we would be here either. If I had

to defend any particular proposition in the
context to the trial and say, "Would that be such
as to prejudice the jury", I would have to concede,
probably, on any particular one that it alone would
not be sufficient to cause the effect on the
jury. It is the unrolling of the series of
propositions about which we are taking exception.
Now, having sorted out the difficulty about the interpretation of Dr Burges-Watson's evidence,
he goes on to say, "Well, I am still of the same

opinionr', he is entitled to do that. But he then
goes into 1241:
There's Linda then with a different tone in her
voice, a tone of sad regret.

He goes on to give the evidence and then the passage
to which we take exception is at line 21 onwards:
each of the occasions were in response to
the leading by Doctor Burges-Watson about
these accusations of Leigh. Then there seems
to be another voice which to my mind is
the caricature of a mad person. Perhaps this
is what Doctor Burges-Watson has referred to
a menial person.

So he has gone into the definition of caricature,
and he explains that at 1242:
As a psychiatrist who has listened to many

mad people I repeat that that particular voice
is the caricature of a mad person - it's
not the genuine article. It is what a lay
person thinks happens when a mad person
speaks. Then there was some melodrama in
Doctor Pargiter's words which I rather like -
umelodramatic expostulation" when he said "Begone"
and rrotherwise it was hungry for my soul -

well, leave that aside -
But once again this is a matter of melodrama -
not the genuine article seen in insanity.

C2Tl7/2/M.B	25	5/10/88
Huish

MR SLICER (continuing):

Now, again the jury were being told

by him as a psychiatrist that what they had
witnessed and what·had been described to them,which
was central to the issue of the existence or otherwise
of a mental disorder, leaving aside whether the jury
could say that occurred at the time of the
-=-·_events, but this was the debate about whether there
was a mental disorder in him or not - this witness,
in the guise of a psychiatrist was saying, "I will
tell you, as a psychiatrist, what you saw in the
accused, was parody, was acting, and was, by

implication then, an act of decention." Now, that
is precisely what we say -would be a juryquestion and
an area in which - - -

GAUDRON J:

But is it entirely so? Here you have a psychiatrist

who is qualified as an expert, who presumably has
seen mad people from time to time, on many occasions -

MR SLICER:	Yes.
GAUDRON J:	- - - has some experience of the abreaction test,

is he not entitled to say, "In my experience, that
is not how insame people behave in that situation."?
I am drawing a distinction, if you like, between
expert evidence and opinion evidence, which is not
always drawn, I realize, but is it not permissible
to say, "In my experience, that is not how insane
people act in that situation?"

MR SLICER:

I think he is entitled to say, "I have done many

tests; I have never seen that, I would be surprised

if a person would do that. I do not believe it to
be the genuine article." I think he is entitled to
say, "I do not believe it, and if that is the case,
my opinion becomes X, Y and Z." He is, however,
going beyond that, shall we say, proper fine line
of an expert and saying, "I will tell you that that
is what a lay person would expect to do or act if
they were in that situation, trying to fool.

GAUDRON J: Is that any different from saying, "In my experience,

that is not the way that an insane person would be
expected to act in that situation"?

MR SLICER:

I think I would contend that that goes beyond the

parameters of proper psychiatric evidence. He may say, "I have never seen it." He may say, "I would
not expect a person in that condition to respond
in that way under that test." He is not entitled
to turn it around and say, "What you say,7 is what a normal person would do if they were trying to fool
the system." It is the turning around of the logic,
because what he does - he does not proceed the
way that Your Honour predicated. He proceeds this
way: "What you have seen is the way in which a normal person, out to trick the system, would think
they had to do to fool their psychiatrist, because
that is what a normal person would do in order to

C2Tl8/l/VH	26	5/10/88
Huish

trick the psychiatrist. I.t would, by implication,
mean that they are not insane. Because they are
not insane, therefore they are not manifesting a

mental disorder. Because they are not manifesting
a mental disorder it therefore follows that they
do not have one." It is the reverse logic which
-~-- -the doctor is using, not the process which Your Honour
indicates.

GAUDRON J: Yes, I follow that.

DEANE J: Well, he is using both, and you object to the sane

half of it.

MR SLICER:

Your Honour, in a way, it is a problem of philosophy

or logic. Assuming that he used both and it is a
circle, the question is, do you start off by saying,
"A normal person would think that they should do that;
if that be so, they are a normal person; if that
be so, they be not insane.
(Continued on page 28)

C2Tl8/2/VH	27	5/10/88
Huish

DEANE J: No, but I think you have missed what I was putting

to you. He is saying, one, "That is not the way
insane people speak" and within limits he is

entitled to say that. He is also saying, "That
is the way a sane person out to tell lies speaks".

MR SLICER: Yes, Your Honour.

DEANE J: Your argument is that he was not entitled to say
that.

MR SLICER: Yes. And to develop that a touch further we
say that he got on the circle with a proposition
that that is acting. It depends where you start -
if he started where Your Honour started, in other
words with a statement of the negative and proceeded
to go round in that process we could not object

to half the evidence. We say his methodology
was to start off with the proposition, "That is
a normal person acting" and then he develops the
proposition the way that Your Honour has done

it. So it is also the starting-off point that
we say is our critique of his - - -

DEANE J: But what if one then takes the further step and
reads his evidence as saying, "I think this person
is sane because, one, from my expert knowledge
that is not the way insane people speak. Two,
from my experience as an ordinary individual I
think that is the way sane people speak when they
are pretending to be insane''. Now you come back

to what has been put to you earlier and that is, cannot an expert supplement his expert knowledge
with non-expert practical experience for the
purpose of reaching an expert result?
MR SLICER: If that were the process we could only criticize
the second part and we could only criticize it
because it was being done to a jury who were,
shall we say, "normal people" who really had to

make that evaluation. The tendency of that form

of expert evidence would be that the jury would
only pick up the second part and say, "Well, the
psychiatrist told me that normal people would
be acting if they did that" or "this eminent
psychiatrist said that that is a parody". It
colours their view as a normal person in how they
would evaluate the credibility or believability
or otherwise of the process that they had seen.
So, yes, in a jury trial, even if the first be
valid, the second would taint the evaluative process.
He goes on at 1244 to 1245:
He spoke as though he were Linda in distress.
He spoke as though he were Linda being
flirtatious

C2Tl9/l/AC 28 5/10/88
Huish
He spoke as though it was lascivious Linda,
he spoke as though it was Linda in sad regret,
he behaved as though he was crying like
a woman, he behaved as though he were mad,
he behaved as though he felt melodramatic .....
Indeed I thought that it stood out in-view as a good example of acting, because it
was done so well and nicely and it shows
that the accused does have some skills.

And he then goes on to say:
it's more in the skill of the story-teller
..... but it is acting and it is certainly
not what is seen in the genuine abreaction.

He developed that theme at - I am sorry I am
dealing here with credibility, of course, and

opinion as to primary facts. Are Your Honours
going to feel better if I go through this
sequentially or break it up into the areas of
how I would characterize the evidence - because
I am going to jump to 1342 because I am still
with the issue of credibility rather than evidence
and demeanour at the trial?

WILSON J:

I think you just handle it in the manner you

think can - - -

MR SLICER:

Then I would invite Your Honours to go to book VI

and I am still dealing with the passages of evidence
which we say go to the issues of credibility and
as to primary facts.

(Continued on page 30)

C2Tl9/2/AC	29	5/10/88
Huish

MR SLICER (continuing): And I had finished with the
proposition about learning certain skills and
I invite Your Honours to go to 1412 - I am sorry,

do not come back. I will just go to 1342 and
read it, it is only the one line. At 1342:
that what we are seeing is the behaviour
of a person who has learned certain skills -
they are unusual skills, and he has used
them for the purposes best known to himself.

That is at 1342. He develops that skills argument.
He continues, however, in relation to saying
to the jury that this is acting and unbelievable
in his opinion as to primary facts and at 1412
he talks about:
He creates Linda - it's clearly stated that
he did -

There was an argument about the creating and
I will come back to that when I deal with the
chart. We are now starting to say in the use
of language to the jury that this man is creating
and that is a value judgment which this witness

has made on the evidence. He develops that at
1414:
Looking at it as a psychiatrist, there's
nothing I can see in it which indicates
definitely mental illness. Nothin~ I can
pick from it which indicates psychiatric
disorder.

If the psychiatrist starts off with a proposition,
"I don't believe anything which this person has

told me and I believe that they are creating
stories with a view to defeating the judicial
process", of course, any psychiatric edifice.
erected on that would be false or would tumble
to the ground and one could not quibble with

that. If - and the doctors for the defence had
to agree, that if what you are told, and in every
insanity trial this is always put - if what you
are told be not true, where does your theory
stand?" and any honest doctor would have to
say, "In tatters".
That process is different from erecting

an edifice which says, "I don't believe X. I
saw what you saw and I say that is acting. I
think that this man created Linda at a particular
stage and therefore once you have made the assumption
that it is acting, or said you believe it is
acting, of course there is no psychiatric

exp 1 an a t ion ." Th a t , we say , i s no t w i th in the
discipline of psychiatry if you proceed by that
methodology, certainly in a jury trial.

C2T20/l/ND 30 5/10/88
Huish
Nothing I can pick from it which indicates

psychiatric disorder. So as a psychiatrist,
it will be my - it is my opinion that in
fact it falls outside the realm of psychiatry.
It is a decision that's not our specialty at all.

If he says that, fine.

GAUDRON J: But, Mr Slicer, do you not have to put it into

context? What the doctor is saying is that he
does not see anything in the actions of your
client from the time he was arrested and charged. statements made thereafter and that is based
on his earlier proposition which we have not,
I think, come to that the process of confabulation
is not a process that occurs other than as a
result of organic brain damage.
(Continued on page 32)

C2T21/2/ND	31	5/10/88
Huish

MR SLICER: Yes, and perhaps I am on credibility - I will
come to the chart . separately and I take Your Honour's

point. In fact, he starts off with February 29,
in the end, and says, "I will take the statements
made by this man and I will tell you that they show,
the different statements show no pattern of

__ --:·disorder. They show conscious deception."

GAUDRON J:

Yes, but on the earlier proposition which he has made that confabulation - surely he could give as
an expert that confabulation is a process which is
only engaged in by persons having organic brain
damage.

MR SLICER: I do not think one would take it that far.
Confabulation could be caused by a person with a
mental disorder which need necessarily involve organic
brain damage.

GAUDRON J: Did this doctor not limit it, Dr Bell?
MR SLICER: Dr Bell, at one stage - it is another part of the
critique - said that this process is not known in
medicine, which was one of our complaints because it
had not been put to any of the psychiatrists that it
was not known in medicine. May I answer it by saying
that it seemed to us that the debate was that the
doctor was saying, "There is no confabulation because
he is acting", and so on, and secondly, "In these
varying statements I can find no material which
would point to the existence of confabulation".

GAUDRON J: I do not wish to detain you, but that is, if it
is important, it is not as I understood the evidence.
I understood this to be a conclusion based on the
doctor's expert opinion or his experience that
confabulation did not occur.

MR SLICER: I follow Your Honour. Would Your Honour bear with
me until I come to the chart because confabulation

is central to that - - -

GAUDRON J: Yes. It is not necessary to do it now, but you
should know that is a matter that has worried me in
relation to this.

MR SLICER; I am conscious of that. I was simply pulling this
out on the issue of credibility and I may be wrong. Maybe I should characterize this into another area, except that he - if I may go on at the end of the
passage because I think this goes outside that
aebate:

C2T21/1/HS 32 5/10/88
Huish
As I see it, the general pattern shows the
evolution of an idea which grows and
reaches the point about here where - let me
take that back one step - it shows to my
mind the early stages of making a plain
statement of what occurred with very little
attempt - -

Now, His Honour stops him and there is no doubt in
His Honour's mind that we are about to get into a

conscious planning. When His Honour does stop him he
says:
I appreciate the point and I'll cease as of

now, Your Honour. In fact I suppose it would
be best if I stated that as far as I see it,
there is a pattern of an evolution of an idea
and this does not have a psychiatric
explanation that I can see, but can be
explained in other ways.

We say that is saying the same thing in a different

guise and he addresses that. He goes beyond
that on page 1416:
Puzzling it is but if it can be seen as
some situation in which it's possible to
play a game where somebody can be doing
something such as role-playing -

I withdraw that. I will not pursue my critique
of that, but I do at page 1426 because he then,
in terms of evidence, says:
but it's appearance at this stage in the
evidence does not have an explanation
which can be assisted by the psychiatrist -

Line 15. But then he says -
I believe that there is evidence which makes

and I speak in terms of a psychiatrist now. it clear that the Accused is capable of that

He misquotes. Dr Burges-Watson was being asked a
number of options but he is saying:
I believe that there is evidence which makes
it clear that the Accused is capable of -
within an hour of being involved in an
enormously horrific scene, be totally cool,
calm and collected -

C2T21/2/HS

5/10/88

Huish

(Continued on page 33A)

is what he is saying there, and he secondly says:
I believe that there is evidence
which makes it clear that the Accused is -
a very remarkedly cold calculating
person who can be

and so on, and:
I speak in terms of a psychiatrist now.

(Continued on page 34)

C2T21/3/HS 33A 5/10/88
Huish

MR SLICER (continuing):

And then he goes on to give an example

of some earlier event and there is an objection to
that and at 1428 we go on, because His Honour has
made a ruling. We say:
Our silence -

in each of these questions and answers -
is not to be taken -

as a passive acquiescence, and so on. Your Honours,
we say that those passages were cormnents on the
credibility of the applicant and his opinion as to
primary facts. I want to turn to my second area
critique which is not the plan yet, Your Honour -
it is plan B - evidence of demeanour and his behaviour

at the trial. I would like Your Honours to go to
1269 in book VI. Because another problem facing
the jury was that they had gone through a long trial
where the issue of the credibility of the accused,
his state of mental disorder, and whether you
believed him from the witness box, were central
to_any edifice which any opinion evidence rested,
franboth the defence and the way in which the jury
wculd approach it.
Now, the accused was present in court; Your Honours

know that. The accused gave evidence. The doctor
says this:
I believe arrogance and apparent contempt
is probably evident in the behaviour and
composure of the accused during this
Court Case.

The doctor does not leave it there. It was not just
a, shall I say, --one .....

GAUDRON J:	I am sorry, what page did you say?
MR SLICER: Sorry, 1269, Your Honour.
GAUDRON J:	Thank you.

MR SLICER: Lines 11 to 13.

DAWSON J:

But he is referring to Dr Burges-Watson's

evidence, · that

there was grandiosity.

MR SLICER:

He goes back to Dr Burges-Watson's evidence and

there is an argument about ghost stories for children

and so on. One of the issues was whether, in one
of the examinations by Dr Burges-Watson, he was
watching for personality traits which gave him signals.
Well, what this witness was saying was:
"I believe arrogance and apparent contempt
is probably evident in the behaviour and
composure of the accused during this Court Case.

C2T22/l/VH	34	5/10/88
Huish

Now, if the jury were to believe that this man was
arrogant and had contempt during the court case,
would they not then be tempted to believe that he
had contempt for them and, if that is the case, then
that he was a liar? It is one thing to say in
___ psychiatric terms, using a set of guide-lines, that
-- - a man or woman may have characteristics of particular personality traits, it is another to say that that
person in that dock in front of you as members of a
jury was showing contempt. But, if that is all he had
said, all right, you could say that that is explainable

in the heat of battle, shall we say. But at 1273,
line 15, that:
An interesting feature is, in view of his
behaviour since the killing -

that is, from February until now, October 86 -

in view of his behaviour since the killing,
a behaviour which seems to be fairly callous, which seems to show a disregard for what he's done, an interesting thing is that he -

reveals he had bad dreams. It is not material, we

would say, which a psychiatrist - ·

_and besides it could be factually wrong - he is
saying his behaviour since the killing is
callous and diisr:egard is matter which, coming to a jury,
would of course affect them.
(Continued on page 36)

C2T22/2/VH 35 5/10/88
Huish

MR SLICER (continuing):

1292 - because that is not just

in isolation - line 15:
The difficulty is this about making -

=-He is talking about Korsakoff and the question of

madness and so on, about filling in the blanks. It
is going to the question that Your Honour mentioned
earlier, the issue of whether the Korsakoff disease -
and that had never been advanced by the defence, it

was not a proposition. But he says:
we have the accused in front of us, we have
heard him and at this state in time we know
that he functions normally.

Now, that, we would say - we challenged on that - would be news to everybody in that court.

DEANE J:

Mr Slicer, one of the problems, or your problem

here seems to be that the witness has somehow just

been turned at large. Now, what is the question in
answer to which all this evidence is being given
and was any objection taken, not to particular
pieces of his evidence but to the procedure once
it was seen what sort of a witness he was going to
be?

MR SLICER:

Thank you, Your Honour.

There were two processes

of objection. There had been a series of, shall
we say, nit-picking objections about whether he had
got Dr Burges-Watson's answer right or wrong and
the earlier ones that we will say where we were
rising to our feet on each question and so on.
The substantive objection to this had taken place
at 1364 - and we have got to go back now, I am sorry,
to book V - where we had objected to the process of
the plan and the way in which he was going to develop

that at large. 1364 is in book IV, I am sorry,
Your Honours.

DEANE J:

I think you have got the wrong page.

MR SLICER:

1364.

We had actually voir dired his evidence,

Your Honour.

WILSON J:

1364 is in book VI.

MR SLICER:

I am sorry.

I had the book in front of me and

I was looking over here for book IV - book VI. We
start the objection 1364.

GAUDRON J:

That is, of course, after the evidence we are

now dealing with, that you have complained of, that
is, after the giving of the evidence that you have
just been taking us to?

C2T23/l/MB	36	5/10/88
Huish
MR SLICER:	Yes, it really related to the plan. That is right, Your Honours;	I think, again, if I had to

justify each particular objection I would say I
could not, in other words, the passage of evidence.
We got to a stage though where we did attempt to
---eall a halt to the process.

DEANE J:

I mean, his evidence reads as if the prosecution

has said to him, "Go for it" and off he goes.
What was the question and was any objection taken
to it?

MR SLICER:

Objection had been taken to him being led at large

and His Honour had directed that proofs be delivered
to the defence prior to the doctor giving evidence.

(Continued on page 38)

C2T23/2/MB	37
Huish

MR SLICER (continuing): That is referred to in the appeal

books, Your Honour. I will take you to that debate.
I should, whilst·we are looking for that, Your Honour,
I should say that at page 1022 to 1023 the Crown
indicated its proposal to use the plan in the form of
evidence but it was not until page - if Your Honour
~~eould just bear me I will find the passage. It
is in book - - -

WILSON J: Page 2173, is it?

MR SLICER:

No, Your Honour, it was earlier than that.

The

page is 999 book IV. You will find that the
problem begins - there is a debate starting at
pages 999 into 1000 which continues into 1001, about
the necessity to give proofs. There is a debate
about that and at page 1016 the Crown asked for an
adjournment to enable proofs of witnesses to be
prepared and we then indicate that we can probably
start with Dr Wilson fairly shortly because we were
not too much worried about that. And then during

the course of the trial the proof was given. It

is not part of the appeal books. I do not think
my learned friend would take issue with me if I
told you that the proof did not set out the full
extent of the evidence which we have heard which
the doctor gave. It did not alert to that.

TOOHEY J: Mr Slicer, at some stage, the witnessJ

evidence

was given on the voir dire.

MR SLICER: Yes, Your Honour.

TOOHEY J:

Was that for the purpose of testing the

admissability of evidence relating to the chart
or for some other purpose?

MR SLICER:

I must say, that from our point of view the

voir dire related to the chart because we did not
know what it meant and what it was going to do and
the voir dire started, and you will see that

His Honour intervened in the voir dire and said he
thought he was going outside the parameters of
what we were seeking. Then we took our objection
that no evidence should be given along the lines of
the chart and then we got into the evidence being

given. So the answer is yes. The voir dire was
really about what was the charge about.

TOOHEY J: What was the upshot?

MR SLICER: The chart was not admitted as an exhibit. It was used by the doctor from page 1364 so onwards

as his formulation of the evidence. It did not
go to the jury, but the transcript discloses that
at the end of the case the jury asked for the

C2T24/l/SR	38	5/10/88
Huish

blackboard or the board upon which the chart had
been pinned - it is with us now,if Your Honours
want to see it, to go into them even though they
could not take the chart in and one can conjecture
about what they wanted to do with that. But there
is no doubt that the jury could have made copies

__ --: of the chart. It had been in their sight for
some days as the evidence went.

TOOHEY J: But once the jury returned, did Dr Bell then repeat,

as it were, the evidence that he had given during
the voir dire?

MR SLICER:

Yes, Your Honour.

(Continued on page 40)

C2T24/2/SR	39	5/10/88
Huish
MR SLICER:	Yes, Your Honour.	And that is the final complaint

that we make is~ the use of the chart even if
we were wrong as to all the other matters.

WILSON J: The voir dire was wholly directed, was it not,

to your finding out what the chart was about in

-=--- order to sustain your objection to it going to
the jury as an exhibit?

MR SLICER:	Yes, Your Honour.
WILSON J:	You did concede that it could be used by the

doctor as an aide-memoire?

MR SLICER:	In the -end we did. If one looks - - -
WILSON J:	I thought at the beginning.
MR SLICER:	No. If one looks at 1364 onwards you will see

that we particularize four or five objections
to the evidence but in the course of the discussions
with His Honour some alterations were - we are
saying - 1364:
If Your Honour pleases I object to the Doctor
being able to give this evidence, one it
is not rebuttal evidence, it is not that
he can give an opinion that in his opinion
Huish suffers from· no mental disorder or
mental illness. It is not rebuttal evidence
to develop a series of shall we say, logic
analyses or argument in this form - that's
not rebutting anything. It is developing
an argument or contention which involves
assumptions about error, differences of
story, conclusions about the first trial
or what occurred and so on.
2. It is not psychiatric evidence in that

although that may well be an admirable piecing
together of logic or material .....

3.
the use of inadmissible evidence - that
It requires as part of its methodology,

is, material which the Doctor has obtained
from outside the this trial .....
4. It involves the use of inadmissible

evidence namely evidence from_ the first
trial -

and we then go into particular arguments about
the document. And I go on at the bottom of 1366:
And so what we have got, they have to make
some valued judgments about whether he's
lying or not and that's really the bottom
line of this trial.

C2T25/l/AC	40	5/10/88
Huish

HIS HONOUR: About whether who's lying or
not?

MR SLICER: Huish. If the jury believes
Huish is lying you can say goodbye to most
of the opinion evidence because it's predicated
upon a number of assumptions that at least
he's giving versions that he isn't deliberately
and consciously fabricating for the purpose
of fooling the jury.
His Honour goes on about questions of proof and
rebuttal. Now I do say there were a number of discussions
going on about whether "D and D" and various things
can happen. His Honour says at 1376 he does not
see any problems with creating Linda. His Honour
warns about the propensity of the expert witness -
at 1375:
to proceed on the basis of personal
interpretation of evidence rather than either
proceeding on the basis of indisputed evidence
of fact that had been given in the trial.

WILSON J: If you go to 1328 - this is the conversation
between you and His Honour that leads to the voir
dire about the chart. I think you say this at
line 22:
Can I say this, that our view - our attitude
at this stage is if the Doctor wishes to
use a chart to explain his reasoning as
an aide memoire I don't suppose I can really
object to that; if the Crown is seeking
to give it a status of evidence in its own
right then I would be objecting to the
admission of that document as an exhibit.

That is what led to my que~tion~

MR SLICER: Thank you, Your Honour. At that stage-and I

would say that I wi 11 stand by that, that that
is probably what we ought to have said then after
the voir dire when the doctor began to explain
his methodology and what he proposes to do.

WILSON J: And the trial judge upheld your objection to
it going in as an exhibit?

MR SLICER: Yes. We wanted a voir. dire because.we were
worried about the status of the document. After the voir dire we objected to the nature of the evidence entirely because it was not rebuttal
and so on.

C2T25/2/AC 41 5/10/88
Huish

MR SLICER (continuing): In the course of the discussion -

His Honour ruled in our favour in a couple of

matters and then His Honour said he was conscious
of:
the propensity for him - and perhaps other
psychiatric witnesses to proceed on the
basis of personal interpretation of evidence
rather than either proceeding on the basis
of undisputed evidence of fact that has
been given in the trial, or on the basis
of some hypothesis as to evidence.

He goes on to give the warning, I suppose, he
should give:
opinion in respect of the existence - or
non-existence of contested facts.

Following that proposition of His Honour we really
did not object to what we took to be a chart
in the form of an aide-memoire and a particular

methodology. But as it transpired in the evidence,
the methodology was not followed by the doctor
nor was the evidence led in the way in which
His Honour had indicated by taking undisputed
facts , undisputed propositions, and erecting
your edifice on that or not. The doctor then
proceeds to ignore, we say, the ,advice given
by His Honour at that page.
And it may be appropriate now for me to
go to the comments and interpretation of the
evidence because here the - if I am wrong as
to all the passage of evidence that I have given
so far, here is what is part two of the evidence
and here is what I referred to Your Honours earlier
as being phase three of his material. This witness
then proceeds to interpret the evidence of others
as part of his methodology of the plan. He says,
at 1385:

Dr Burges-Watson has referred to the
patient as 'a walking time bomb'.

And we say that that - well, that was never 1n

doubt, of course. But however.
At 1394, that is at the top, he is again

interpreting - in terms of his interpretation
of others:
Indeed of course, this apparent lack of recall is not even apparent because we have a number of accounts which clearly accord with the facts of the killing.

C2T26/l/ND	5/10/88
Huish

This goes to Your Honour Justice Gaudron's point about the memory and the confabulation theory.
He says, "One of the reasons I wi 11 · say that
is not true" -
Indeed of course, this apparent lack of recall is not even apparent because we have a number of accounts which clearly accord with the facts of the killing.

The facts of the killing were simply pieced together
by the forensic scientists and were a matter
of interpretation; for example, the doctors could
not say whether there were 27 or 40 blows. It
depended on which version of his record of
interview or which account you believed; it depended
on 'a whole series of propositions. What this
doctor is saying is: confabulation falls away
because the' apparent lack of recall is not even
apparent because we have a number of accounts
which" accord with what we as the tribunal of
fact know. And we say that is interpretation
of the evidence.
At 1421, His Honour recognized this:
As it stands with the other statements -

this is the doctor -
it indicates that as far as preparing or
creating Linda is concerned, it was a
well planned action to create a character.

So he is beginning to interpret, as part of his
methodology - and His Honour says, at page 1422:
Yes because you are interpreting that evidence
as meaning that he did it as Huish.

And I will finish before I come to the plan,

at 1425: that would be consistent with -
a game and the -
rules of a procedure -

1s at 1425, lines 8 and 9.

(Continued on page 44)

C2T26/2/ND 43 5/10/88
Huish

MR SLICER (continuing):

But I will now return to my contention

in relation to the central problem that all
of the evidence-I have given so far now comes together
in the guise of scientific methodology in the form of

a plan. Now, Your Honours have the plan before you

in the affidavit and I think we have lodged. because
___ it may have been left off an earlier affidavit - we
- · found some copies - we have lodged a separate copy of
the affidavit for the sake of ease in relation to the

plan. I am sorry, it is at page - the document is not
numbered; the affidavit - - -

WILSON J: It is this document.

MR SLICER:

Yes, that is the document, Your Honour.

We thought

if we kept it separate - we do have the original,
Your Honours. The problem with the copy is that it does
not have the various colours and so on, but we can do the best that we can in relation to that. Can I say, first of all, that the doctor used two colours, green
and red, to colour his various - because Your Honours
only have it in black and white I will not try and

say which ones are green and red at the moment but
just - except at:1338 the green indicates some
relationship with a game playing which he referred to
earlier as Dungeons and Dragons, and red is what
Huish said he did himself.
So the doctor is already performing, in his

colour coding,an evaluation as to what Huish said
he did himself and what indicates a pattern of playing

or gamesmanship. Your Honours can take it that L
stands for Linda; H stands for Huish, G stands for
game, F, you will see, appears in entry, stands
for a procedure used to gain entry, meaning friend;
S stands for seduction, that is, he attempted to do particular things in the form of a seduction;
E stands for escape, that is,'! was escaping from
my boyfriend': being the method of entry; L/H stands
when evidence slips from'Huish did this' to"Linda
did that," in other words~· the mixture of evidence.
It;'is unclear from the transcript - the brackets we

will come to; at one stage he refers to them as lies, but I will come to that, and there are some additions
which are marked by the two crossed lines you can see.
Now, if I can just briefly indicate to Your Honours

what the game meant. The doctor had taken, on the
top right column, various episodes: creates"Linda.':
''Dresses,"meaning dressing before going to the flat;
driving to the flat; the form of entry to the flat;
the account of the killing; washing afterwards -
that is the result of the killing - meeting of friends;
taking a bag to Franklin and taking the newspapers.
Now, these were all episodes in the evidence which
really amounted to when did Linda first come into

his mind, I think, or when, on the · -~
evidence, on his statements, we first hear ot
Linda.

C2T27/l/VH	44/45	5/10/88
Huish

MR SLICER (continuing):

When or how does he say he dressed

before going to the-killing. Did he dress as a girl,
did he think he was a girl, did he think he was
Linda, did he think he was Huish? How he drove
because he said that he had driven as Linda and

-~~was whistled by some yahoos in the street. How
did he gain entry? That is by what methodology did
he claim in various accounts to get into the flat.
Whether he claimed to have killed as Huish or Linda. Whether he had washed as Huish or Linda. Whether he had met his friends, or what guise had he met his
friends. Whether he had taken a bag to Franklin
and whether he had gone back some days later to

steal or take newspapers to fool the police. So
that is the first thing the doctor did.
The left-hand colum will tell you the date on

which the doctor said, or claimed, the evidence of
the various statements - the various versions given
by Huish. And he had originally set out on April 2,
being the first proposition, that is the first
interview and then we work through April 2, the second
interview, April 2 when he goes to the scence,
April 3, a statement to the police - April 3, page 140.
His instructions to his solicitors become 8 and 9.
There are a number of pages, pages 1, 3, 4, 5 and 7.
Then a series of statements and dates. What he said
at trial one appears. Abreaction test appears and
trial two. So what the doctor was attempting to do
was to set out down the left-hand column all of the
dates on which the accused had made statements and
across had given the various areas of the account.
Secondly, he had coloured Huish or Linda in

green or red depending whether Huish said he did
it himself or whether it was a game. "G" means game
and so on. And I will come now to explain the
evidence in relation to that because that is central
to the debate about whether the differing accounts
could be used to show confabulation. Whether they

were a result of confabulation or whether they were
a process of conscious and deliberate game playing
with the police and the authorities and lawyers and
so on in order to escape criminal responsibility.

TOOHEY J: Well are you using game there or was the witness

using game to relate to the game that had been
played earlier - this game of dungeons and dragons
or was it being used to suggest some game that the'
applicant was himself playing with the police?

MR SLICER: No,_I thank you for that, Your Honour. Originally

the witness, a~ Your Honour has correctly said,
wanted to put in or had suggested putting in dungeons
and dragons and he had gone and bought himself a book
during the trial to learn the rules. We had objected

C2T28/l/SR

5/10/88

Huish

to that and as a result of His Honour's suggestion,
"G" became game, meaning a game generally. And "G" on trial one represents the doctor's interpretation
of what the accused has said at trial one in
creating Linda. In other words, the evidence at
trial one that the doctor had selected was, Huish

__ --::had said to someone at the first trial, "Yes, Linda

was a form of breaking a systems analysis or a

form of gamesmanship". So the doctor had given
the creation of Linda a "G", meaning it was a game
and, of course, the jury were then told it was a

game played at trial one. So thank you, Your Honour,
it meant dungeons and dragons. If, Your Honours would just bear with me to go now through how we
say this is a substantive part of our complaint.
The Crown proposed to use a chart at pages 1022

to 1023 - I do not think I will detain you with
that,Your Honours. No great details are given. It
is simply that they warn early that that is what is
going to happen.
(Continued on page 48)

C2T28/2/SR	47	5/10/88
Huish
MR SLICER (continuing):

We propose to use a white board for him to draw
a plan of, which there will be a copy, a rough
copy, supplied with the proof.
There is some discussion.
I can't see why an expert can't prepare that
out of Court.

We had that passage earlier. We come then to the
introduction of the plan and the debate next begins
to occur at 1343, which is the next book.

TOOHEY J:

Have we passed beyond the voir dire stage now

or does this particular passage precede the voir dire?

MR SLICER:

We are in the voir dire, Your Honour.

TOOHEY J:

You are not in it at that stage, are we?

MR SLICER:

I am sorry, I will go back a little.

1328 we

start the debate. There is a discussion about
it and then the witness is sworn on the voir dire
at 1334.

WILSON J:

And you commence your cross-examination on the

voir dire at 1343?

MR SLICER:

Thank you, Your Honour.

I was going to leave out -

why I had left out the earlier explanations in the
voir dire was because I was going to only give
Your Honours the explanation which the jury got.
We had a discussion on the voir dire as to what
the doctor said the chart meant, but I:was going
to leave that out because it is what the jury
heard the chart meant that became important. That
is why I started at 1343, but maybe that is wrong.
And the chart also, Your Honour, had been altered

since the voir dire, for example, Dungeons and

Dragons does not appear in the final chart. We
start the cross-examination of that and he says:
And does the chart encapsulate your opinion
as to what has happened in this case which
shows a diagnosis or opinion completely
outside psychiatric explanation? ..... Yes,
it's not a psychiatric illness, or course,
it's not mental illness or psychiatric
disorder and I believe it doesn't really
require a psychiatrist to work it out so,
in that sense, yes it is outside psychiatry.
That chart illustrates, does it not, in that
form your opinion of the reason for the
various versions and motivations for giving
them? ..... Yes.

C2T29/l/MB	48	5/10/88
Huish

And the cross-examination then proceeds on the
basis of showing·that the matter is speculation
and he has got his factual material wrong.
1353:
How can you say that? As a psychiatrist? You may well be right? ..... I don't believe that
this is a question really for a psychiatrist.

This is a question about whether he is playing the
Dungeons and Dragons and depends on interpretation -
1353. 1357:
Because you interpret that as being Dungeons and Dragons -

and he says:
"Well, that fits with what I know about the -

particular question. That is at 1357. But the substantive critique begins at 1363, the debate
between His Honour and myself. We are debating
that it is really an argument about interpretation
and omissions from the trial. His Honour then

says - well, he thought that it went too far. We
then contend in the argument that none of this
evidence ought to go and I have set out the reasons:

1364 into 1368. The central part was that it went
to the issue of lying and it went to the issue
of credibility.
I should say that at - I will do this in order - some stage in the debate, of course, the doctor
himself says, "I have an opinion about what it means
but in my opinion psychiatry ia not explained

by psychiatric illness." Now, what does the chart
mean and wha;_ object~ons were taken to it?

(Continued on page 50)

C2T29/2/MB	49	5/10/88
Huish

MR SLICER (continuing): It involved an interpretation of

the doctor as to wh~t the accused meant when he
gave the varying accounts. In other words, if the
accused said, "I" or if the police said that the
accused said "I", in one sentence and used the
word "she" in another sentence, the doctor interpreted

---~ that to be a claim that the applicant was claiming

to be both himself and a separate person. So
it really involved the interpretation by the
doctor of the words of the accused in the VRrious
accounts and attributing to them a meaning, in
symbol form, of "H", "L", "LH", bracl:<.ets if it is
wrong, so-and-so if it is ambiguous or not. And if
I can just - - -

DAWSON J:

I just want to understand the purposes of this

exercise. What do you say is wrong with that?

MR SLICER:

That has no more nexus with the discipline of

psychiatry than the address of counsel, or the
marshalling of evidence at the end of the day before

a jury.

DAWSON J: Maybe. it does not, but what the doctor did was to

express an opinioR, namely that this man was sane

at the relevant time. Now his counsel are
entitled to go into his methodology in examination
in-chief and you are entitled to go into it in
cross-examination. And if you demonstrate in
cross-examination that it is baseless, illogical,
wrong, so be it, then his opinion falls to the
ground. But he is entitled to give the opinion
because he has the qualifications to do so. It
does not mean that it is not open to attack, and
you can only attack it if you go into the methodology.
Now why was it not permissible to go into this
material?

MR SLICER:

Because it was not evidence which could properly

be characterized as opinion evidence in the form -

DAWSON J:

1t does not need to be.

He may have-based his opinion

which he was entitled to give because of his
qualifications on something that was quite outlandish,
quite wrong and once that is demonstrated then, of

course, the opinion falls to the ground. But if this
was the basis on which he gave his opinion then both
sides are entitled to go into it?

MR SLICER:

He is entitled to give an opinion based on

assumptions or material which has been admitted in
the court.

DAWSON J:

No, let us start with this proposition.

He is

entitled to go into the witness box, if you like, and
say, "I am of the opinion, relying on my qualifications

C2T30/l/SR	50	5/10/88
Huish

and my examination of this man, that he was sane at
the relevant time." But this is not going back in
an investigation of the basis on which he gave an

opinion. The basis might turn out to be false and
you say it.is, but so what?

MR SLICER:

Because his statement, "This man is insane" was

predicated upon evidence as to the fact of
credibility, as to the fact of believability and
as to the fact of differing statements and the
interpretation placed thereon.

DAWSON J:

And if it was predicated wrongly, you are entitled

to show it and the consequences will follow. But
that is all that this went into. In other words,
you are saying you do not like the basis on which
he gave his opinion, or you do not think it was
a valid basis or a proper basis?

MR SLICER:

No, I am saying that the effect of this, in

the nature of being rebuttal evidence, operated
not so as to form a proper basis for a scientific
opinion, but operated to draw a series of inferences
from the evidence in order to affect the jury

in the guise of an expert. This be rebuttal evidence
at the end of the trial. This was using the

qualifications of an expert to make inferences from
evidence to sway the jury.

DAWSON J: If this was his methodology, then it was something

which both sides were entitled to investigate. If
it happened in the course of investi~ation, or
if the investigation happened to elicit facts which
you would rather were not elicited because the
jury might believe them, well so be it, but that
is a danger which one has to accept in this process?

(Continued on page 52)

C2T30/2/SR	51	5/10/88
Huish

MR SLICER: We would say that it went beyond that, Your
Honour, went into speculation on matters directly
to a fact in issue· before the jury.

DAWSON J: It does not matter. If it was speculation and
that was on what the doctor based his ultimate

-~ ·opinion then of course you are entitled to go
into it to show that it was speculation.

MR SLICER: But an expert witness cannot point out or act
as a guide to a jury to take them through inferences
that they may draw in relation to primary evidence.

DAWSON J: That was not the purpose for which this evidence
was elicited and it was not the purpose of a

cross-examination I take it. The purpose was
to show on the one hand that his opinion was soundly
based and on the other that it was not because
the evidence was speculative or whatever else
it might be but you must be able to go into that.
An expert may give an opinion that is baseless
and maybe on his qualifications he is entitled
to give it but it must then be open to investigate
that opinion in this way to demonstrate that it
is baseless.

DEANE J: Is not your point this: that an expert is entitled
to identify the factual assumptions on which his
expert opinion is based but he is not entitled
to go into the witness box and as an advocate
argue the correctness of those factual assumptions?

MR SLICER: That is certainly the answer that I was attempting
to do.

DEANE J: Now, if that is your answer, do you not need to
identify somewhere what I asked you •about earlier

and that is, where was objection taken to the manner in which this witness appears to have
been simply let loose on the jury?

MR SLICER: The objection was taken in total at the passages

that I have read out.

DEANE J: Well, I did not find there really an objection
to the course the evidence of this witness took
in that regard.

MR SLICER: We had objected to any evidence being given

DEANE J: Yes, I follow that.

MR SLICER: - - - and we pick it up again at 1427, Your Honour.

C2T31/l/AC 52 5/10/88
Huish

DEANE J:	I mean, accept for the sake of what I am asking you that it was. open to the witness to give evidence
on the basis of this chart, that is, "My expert evidence is based on an assumption of these matters
which appear in this chart and the following

__ assumptions". That is one thing. It is another
- - thing to say, "Now, if anybody wants to dispute
those assumptions I will set out and justify them
and I will tackle the witnesses who gave contrary
evidence and I will do what the Crown prosecutor
should have done".

MR SLICER:	We would answer that in two ways: that simply to set out the evidence in the form in this plan,
that is, to marshall it together and put a series
of logical propositions together we would say
is outside opinion evidence, that is, that is acting as swaying the jury or that is acting as
the advocate.

DAWSON J: That was what I was questioning.

MR SLICER:

That is the first answer.

The very playing

itself is outside the parameters of what can be
properly regarded as scientific psychiatric evidence.
But if we are wrong as to that - - -

DAWSON J: But if that was what he in fact did base his opinion

on you cannot object to the plan going in, can
you?

MR SLICER:

He cannot dress it up by tacking on the end

of that process, "and I will tell you that that
does not give any evidence of the existence of

a disorder/confabulation". Simply tacking on
the magic words of the opinion do not give it -

DAWSON J:

There·may be a line between saying, "what is

the basis on which he gave an opinion" and "acting
as an advocate to try and convince the jury",

his function but that is a line which has to be and, of course, the latter is not any part of drawn and it would seem to me that the chart would
fall on the admissible side - the chart itself.

(Continued on page 54)

C2T31/2/AC	53	5/10/88
Huish

MR SLICER:

I will come to the law as to why I say that fails

but if I am wrong as to my first proposition, then
I go to my second proposition: the chart would be
admissible if it contained a series of, shall we say,
agreed or undisputed or, shall I say, assumptions or

propositions, but it does not. It proceeds on the

__ ---:. -basis that, "I will tell you that when, on April 2,
he gave that answer,"the words meant he was describing
the existence of Linda, or, on May 1 when he was
using an explanation as to whether he was washing,
giving us an account about Huish.
the words tell us that he was primarily speaking as secondly

DAWSON J:

Yes.

MR SLICER: It is that second process.

DAWSON J:

Bu4 you see, an expert does not have to give an

opinion on a sound basis. If that were so, then there

would be no way of choosing between them. An expert
may give an opinion on an unsound basis, and it is
for the trial process to demonstrate that it is
unsound, in which event the jury will discard it.

MR SLICER:

He may give evidence from within his discipline. I mean, it is simply because one is an expert in a particular area does not mean that you can always

go wherever you want as an expert.

He may give

evidence within his discipline about the existence

or otherwise of disorders or diseases or characteristics of diseases. He is no more able - and himself concedes,

he is no more able, has no more expertise as a

psychiatrist to work out an intellectual process or

game in order to arrive at a concept of normalcy.

DAWSON J: But, yiou see, the basis for an expert witnes.s's

opinion does not have to be only matters of expertise.
Obviously he has to take into account some matters of expertise, as it were, subsidiary opinions, and some
plain matters of fact upon which other people are as

well able to judge as a psychiatrist, though nevertheless
all of those form the basis of the opinion.

WILSON J: But, quite a few of them are - - -

DAWSON J: Yes, well that -

MR SLICER:

But that is not what he is doing here, with all due

respect. He is saying, "I will give you a chart
which will conclusively prove a premeditated or
conscious plan which shows that the act of a premeditated
killing - I will give you a chart of the compilation
of the evidence," and there it is, showing that he
is lying, and then simply adds the words, "In my
opinion it shows no psychiatric illness."

DAWSON J:

I think that is what Justice Deane was seeking to get

from you. Where does it appear that this chart was

C2T32/l/VH	54	5/10/88
Huish

put forward as a statement of actual fact of what
occurred and not as the basis of the opinion
upon which the witness gave in evidence?

MR SLICER:

I follow that, with respect.

DAWSON J:- Well, now, what you should do is point to that

place in the evidence and then we will know where
we are.

MR SLICER: Right, sorry, I follow that. If I can start at

1407 - - -

TOOHEY J: Well, just before you go to that, Mr Slicer,

you may get some assistance from the questions that
were asked by the Crown at the very end of the
examination-in-chief with Dr Bell on the voir dire,
and that appears at 1343. It is a passage that
you have taken us to and I simply direct you to it
now because it is earlier in sequence than the

passage you are apparently about to refer to. If you
look at line 15, the doctor was asked:
And does the chart encapsulate your opinion as to what has happened in this case which
shows a diagnosis or opinion completely
outside psychiatric explanation?

And then the answer is given that you already read.
The question is asked:
The chart illustrates, does it not, in that
form your opinion of the reason for the various
versions and motivations1?

And the answer is '_Yes." I do not know whether those
answers are open to the construction that Dr Bell, on the basis of other material, was expressing the opinion that the applicant was not suffering from any
mental illness. It then went on to explain, not qua
expert, but by reason of setting up this chart and

drawing various conclusions from it, that his conduct
was explicable on grounds other than grounds of mental
illness.

(Continued on page 56)

C2T32/2/VH	55	5/10/88
Huish

TOOHEY J (continuing): Now, I do not know whether I am
making the distinc~ion very clear, but something
of that sort seems to come through in the answers
that are there given.

MR SLICER: Your Honour, I thank you for that. I had
-- -attempted earlier to talk about a third phase of

his opinion, that if the doctor is entitled to say,
"I don't believe" and therefore there is no

existence of a mental illness, it was the third
phase now where he picks up the material and says,
"And I will now take the material and show you the
reverse, that it was a conscious willed, premeditated
plan", and thank you, Your Honour, for that, because
that is where he says, "This is what I am going to do
I will take you now to the negative, or the reverse
side of that", and show what his version was, why it
was a lie and while he was showing coolness and
cold-bloodedness.

TOOHEY J: Without taking us to the evidence, is there
evidence completely unrelated to the chart in which
Dr Bell expresses a medical opinion that the
applicant was not suffering from mental illness, or
was not insane in terms of the Code?

MR SLICER: Your Honour, there was in terms of his op1n1on
evidence on the validity or otherwise of the
abreaction test.

TOOHEY J: To that I assume you have no objection.
MR SLICER: No, Your Honour.
TOOHEY J:

That is in terms of admissibility. You may attack
the weight to be attached to it.

MR SLICER: No, and he attacked the methodology, he criticized
the psychiatric surrounds, and so on, and he reached
the conclusion that if that were an invalid test,
then the supporting basis, or one of the supporting

bases for medical insanity had fallen away, and I
do not attack that, nor do I attack the methodology
of Drs Lopez or Wilson. It is now that having got to
that proposition he is turning it around and
saying, "I will show you now the facts which point
to premeditation, cold-bloodedness, planning,
untruthfulness, and the conscious rearranging of
memory, as distinct from confabulation.

(Continued on page 57)

C2T33/l/HS 56 5/10/88
Huish

TOOHEY J:

Are you saying that in offering the chart

Dr Bell had moved into an area in which no aspect
of medical expertise was required? And do you go
that far?

MR SLICER:

Yes, Your Honour, and he himself conceded that

---- in the passage that I read out.

DEANE J:	But is not the problem this: if you go to page 1375 you have His Honour's ruling on the
chart and I would have thought that is close
to an exemplary statement of what was and was
not admissible in terms of this witness' evidence,
including the chart?

MR SLICER: If we exclude personal interpretation and so

on, opinion in respect of the existence or
non-existence of contested facts, I think now,
in hindsight, Your Honour, I would not make the
concession that I made then, that that plan in

any way - and since we know where it went, I
mean - represents a proper basis for admission
under psychiatric evidence.

DEANE J: While I have you on that page and I realize I

am diverting you from what Mr Justice Dawson
asked, the submissions you are making indicate
an argument that the witness departed from what
His Honour there laid down as the guidelines

for his evidence. What I keep: asking you
is does it appear anywhere that any objection
was taken to the manner in which the witness was allowed to give his evidence because the
plain fact of it is that defence counsel sometimes
find it to their advantage to let a witness such
as this go on and indicate all these prejudices
about facts, other cases, it is to their advantage
to make him confine himself to identifying
assumptions and that being so it is important
at this distance to know how the trial was conducted

in that respect. (Continued on page 58)

C2T34/l/ND	57	5/10/88
Huish

MR SLICER:

Your Honour, after His Honour had made the conn:nents following the voir dire there was no

objection taken by the defence until the passage

where we

said we had respected His Honour's

ruling and our silence was not to be taken as

---~ acquiescing in this line of examination.

DEANE J:

But the point is if you read what His Honour said

at 1375, nearly all of the matters you complain
of would have been dealt with by an objection
simply saying, "That departs from the clear guidelines
Your Honour has given":
that expert witnesses should be confined to giving opinion upon the area of their
expertise rather than working in with that
at it were, opinion in respect of the
existence - or non-existence of contested
facts.

MR SLICER:

Your Honour, we had taken objections consistently

through the course of the trial - I am just using
it for example. There are objections taken from
1318 right throughto 1324,for example. That is
simply an example. There are objections in the
initial parts of Dr Bell's evidence; we are
objecting all the time. To each question that is
put,1to each that is given we have said, "You have got it wrong." There is a debate about that. We
are there - and a jury- on the 19th day of a trial,
we get the next answer which misquotes - or we
claim, sorry - we object again. There is a debate
and an argument and so on.

(Continued on page 59)

C2T35/l/MB	58	5/10/88
Huish

MR SLICER (continuing):

Now, that goes on through almost

all the first part of book VI. And those objections
are made and there is a fight and there is a

ruling. We then come to what is a clear debate

about that. We argue that nothing should go to

___ the jury. His Honour, in the process of
discussion,says "Well, subject to my comments and
so on, I will allow this to go provided the doctor observes the parameters of the ruling. It is true
that thereafter, for some time, the witness, we
would say, continues to do the things about which

we complain without us making a complaint. But

His Honour was letting it go. When His Honour turns
to us and says, "Well are you making a complaint?",
our answer is, "No'.' - it was a sulky answer, "No,
but do not take our silence to mean we acquiesce

in this process". Now, our dilemna was having
fought battle after battle after battle, having
allowed the doctor to use this methodology and
proceed then to go on and on and on in front of a
jury, we acquiesced but made it clear to His Honour
that our silence was not meant to be acquiescing.
Now we would could have objected to question after
question after question after question and we were
concerned - I think I mentioned it, that we were
concerned about showing ourselves in front of a jury
to be somehow or other obstructive in the process
of trying to keep out material which was damning to
us.

DEANE J: Yes, I follow that and I will not delay you after

this, but can I just pinpoint to you my problem
and that is reading Dr Bell's evidence, from this
distance, I can envisage counsel for the defence
being rather pleased at his obvious assumption
of the role of the advocate. Well now it is for
that reason that it seems to me it is important
to examine precisely what objection was taken to
the manner in which his evidence was led and allowed
to continue?

(Continued on page 60)

C2T36/1/SR	59	5/10/88
Huish

MR SLICER: Your Honour, may I answer that by asking
Your Honour to go back to 1293 to 1297, for

example. At 1293,we asked:
for the Jury to be put - to be sent to
their room -

the particular passage becomes 1296 and especially
1297. We had already had the argument - and

I will quote 1297:
Now, I say that, Your Honour, because at no stage did the defence lead from the
psychiatrists that I'll call ultimate

questions or answers. We attempted to set

it within a framework. The Crown was
entitled in its cross-examination -

and we go on then at 1298 to talk about BROWN's

case and so on. We had already attempted to
close the door to delimit the parameters of
rebuttal evidence in a legal submission which
went on into 1298. This is not the first time

we had done it. We had made a number of submissions
or objected to a number of areas of the parameters
of evidence because they were going to ultimate
questions and ultimate answers in relation to

that. When we did come to the ruling on the
chart, it is true that we did not get up time
and time again, we had already done it and we
had already made the point and,r..as we said to

H ' 1s onour, H "W e respect your ru 1ng . 1. "
In hindsight, we may have been wrong as

to that but there was the jury. If we were seen
all on day 21 objecting to every question and
every answer and if you look at the objections you then get into long syllogism about what it
means and so on, we would have affected the jury. I do not think I can put our case more favourably
to us than that.

DEANE J: I think I diverted you with Mr Justice Toohey's
assistance from dealing with what Mr Justice Dawson
asked you.

DAWSON J: You probably do not remember what that was and
that is understandable. I was asking you to
point to where it was the chart was objected
to upon the basis that it did not form a
foundation for the opinion that.was expressed
but was, as it were, argumentative material.

MR SLICER: In our submissions which were made up to 1368,
in other words, we had - 1364 to 1368, Your Honour,
is where we had objected to the chart as such.

C2T37/l/ND 60 5/10/88
Huish

WILSON J:	But only to its admission as an exhibit.
MR SLICER:	No, Your Honour.
WILSON J:	Well, I am looking at page 1328:

if the Crown is seeking to give it a status
of evidence in its own right then I would
be objecting to the admission of that
document as an exhibit on the trial.

MR SLICER:

Yes, Your Honour.

WILSON J: And you eventually won the argument when His Honour

ruled that it would not be admitted and would not
go to the jury.

MR SLICER:	Thank you, Your Honour, yes. But that was before the voir dire, Your Honour.	Now, when the witness
withdraws - - -

WILSON J: The ruling was not, the ruling was at the end of

the voir dire and His Honour says, well, we have not
been at odds as I thought we were when he came
to understand that you were objecting to its
admission as an exhibit. Looking at page, for example,
1372:
Well, our area of disagreement seems to have narrowed down to nothing then, Mr Slicer,
subject to what Mr Jacobs might wish to
say.

And he gives a ruling in terms of your objection

on page 1375. Have I misunderstood?

MR SLICER:

Thank you, Your Honour.

No, you have not, but

I had. 1364 is where I objected to the evidence
in toto. This is after the voir dire.

If Your Honour pleases I object to the Doctor
being able to give this evidence, one it is
not rebuttal evidence, it is not that he can
give an opinion that in his opinion Huish
suffers from no mental disorder or mental.
illness. It is not rebuttal evidence to

develop a series of shall we say, logic analyses - I think that should have been logical -
or argument in this form - that's not
rebutting anything. It is developing an
argument or contention which involves
assumptions about error, differences of story,
conclusions about the first trial or what
occurred and so on.

C2T38/l/MB

5/10/88

Huish

(Continued on page 61A)

2. It is not psychiatric evidence in that
although that may well be an admirable piecing
together of logic or material, it is not
as he says, evidence which can be given by a
psychiatrist, any more than anyone else.
He will make a series of -

I presume logical propositions or something -

as I understand what he was going to do,
logical progressions.

(Continued on page 62)

C2T38/2/MB	61A	5/10/88
Huish
MR SLICER (continuing):

3. It requires as part of its methodology,

the use of inadmissible evidence - that
is, material which the Doctor has obtained
from outside the trial - which I don't think
can be said to come within the normal human
experience, or within the normal - shall
we say, training and skills of a psychiatrist - I will leave the next game because that is solved.
4. It involves the use of inadmissible

evidence, namely evidence from the first trial.

The development then goes on. At 1365 His Honour
says:
Yes, I'm sure he did -

about separating minds -
that may go to the weight that in this trial
is attachable to his particular opinion
and I can understand that in an ,abstract
sense of fairness you might say well it's
unfair that parts of evidence in the first
trial shouldn't form the foundation for
psychiatric opinion here.

I then go on to say - bottom of 1366:
And so what we have got, they have to make

some valued judgments about whether he's
lying or not and that's really the bottom
line of this trial.

HIS HONOUR: About whether who's lying or
not?

MR SLICER: Huish. If the jury believes

Huish is lying you can say goodbye to most
of the opinion evidence because it's predicated
upon a number of assumptions that at least
he's giving versions that he isn't deliberately
and consciously fabricating for the purpose
of fooling the jury.

HIS HONOUR: Yes. I can't see any difficulty
myself.

He goes on to give an answer.

MR SLICER: Well my fifth argument -

and we go on to that proposition.

C2T39/l/AC

SLICER

5/10/88

Huish

(Continued on page 52A)

MR SLICER: This is rebuttal. I mean that's
my point, th~t this is not evidence for
rebuttal.

HIS HONOUR: Oh well, that doesn't follow.

=--- We go on to 381. And then at 1370:

HIS HONOUR: Rather than the development
of the factual material which will no doubt
accompany the doctor's illustration of the
document and the conclusions that he draws.

MR SLICER: I could not oppose the doctor
saying this. I have taken the following
assumptions , and on those assumptions I
end up with an end conclusion - I would
object to him taking Dungeons and Dragons
as an assumption.

Now that was how we were putting our proposition
that assumptions are one thing. Then His Honour
at 1371:
Well, do you attack the proposition that
for the purpose of explaining - - -

(Continued on page 63)

C2T39/2/AC 62A 5/10/88
Huish

WILSON J: Before you leave page 1370, look at line 14,

where His Honour. says:
I'm sorry, I may have been
misunderstanding you. You're
directing your argument only at the
moment to the admissibility of
the document before the jury?
MR SLICER: Yes, Your Honour.

And you go on to say that you cannot object to
him using it as an aide-memoire. And then
His Honour gives a ruling in those terms.

MR SLICER:

Yes, well I cannot now say whether the answer,

"Yes, Your Honour" was talking about the last

argument. I had developed five propositions and
started off with a proposition saying, no evidence
could go and ended up agreeing that the chart

was an aide-memoire. It has got to be seen in the
context of respecting His Honour's responses to

the propositions. But certainly as we start off,
we say, none. But can I say, I suspect that we
were led by His Honour, quite properly to this.
He cannot use the chart in the way that he has
used it to demonstrate it to us. No, I do not
think so. And then we eventually say we have no
objection to that. Immediately at page 1375,
His Honour sets out the delimits and we would
agree.
We had started off with an all or nothing,

in the course of the discussions said, ''All right, well
in the light of Your Honour's comments, if it
stuck to that proposition of assumptions we do not

mind". What we then say is, if we were right to
concede that, the witness had transgressed what
His Honour had set as the parameters for debate and can I now return to Your Honour's proposition,
I think, which was said, "Show me the areas where

we say that went too far".

WILSON J: Is that something you can do in the space of

just a few minutes or should we adjourn now,
Mr Slicer?

MR SLICER:

It would take me ten minutes or so if I just

gave you the transcripts and then I just want to
go briefly to my legal propositions, where I have

put them in authority form. I should be about,
hopefully, 20 to 25 minutes, Your Honours, depending
on - - -

WILSON J: Perhaps you could finish the factual material before

we go to lunch.

C2T40/l/SR	63	5/10/88
Huish

MR SLICER: I am sorry, Your Honours. Just before going -
page 1428 to page 1429 was our sulky restatement
of objection:
Well let's start -

· - ·corruption -
to be taken to prejudice the Accused,
I indicate we have made our decision
clear to Your Honour before this, our silence
is not to be taken, it is not protesting or
objecting, and I will leave it there, Your
Honour has made a ruling.

Page 1429:
I had laid out a number of objections
to your Honour some time ago as to the

totality of this evidence. Your Honour
has made a ruling, we respect the ruling.
It's very difficult to work out - -

HIS HONOUR: This seems to be going
outside my ruling .....

MR SLICER: Well, ultimate question -
ultimate answer, no nexus with psychiatric
discipline for opinions, he has already
said -

and so on -
Can I indicate why we've been silent. It's
very hard - each question or each long
answer poses a new dilemma for us. For
example, at one stage we had an analysis of
how you construct or deconstruct sentences.

That was our explanation, in any event. Now,
remember that we had already taken early objections

and ultimate answers and His Honour had ruled against in the course of the trial about ultimate questions
us, so that was simply that passage.
If I can now go to the passages where we say he

uses or misuses the evidence in the interpretation,

page 1407. He is talking about whether you get a
red Hor an L, and about the different statements.
He says in a statement:
he had met a woman called Linda at Hadleys,
I understand a well known drinking hole,
and he had gone with her to the flat,
and he has alreadv oointed out that
or admitted that she did not exist,
and so ''L'' there is Linda, but a story about Linda,
when in fact it is clear that it was hims e 1 f.

C2T41/l/HS 64 5/10/88
Huish

MR SLICER (continuing):

HIS HONOUR: Well just a minute, you've marked
that in red·because Linda in that version of
events represents a third person?

WITNESS: Linda is really, as the evidence eventually
showed, was the accused himself.

HIS HONOUR: Well - yes, but in that version you have
got it with a red "L" rather than a green one
because in that version he was speaking of Linda as
though she was someone entirely entirely outside
himself, someone he picked up at Hadleys.
He is now starting to interpret the answers of the
applicant, or the versions of the applicant with the
objective state of the evidence, or what he took it to
be, and marking it red or green,giving a value judgment
to that,in order to show that he was making a story.
Bue when he begins to develop that at 1411, on the way
through that, or even 1410:
In this statement he is giving the indication
that there he suddenly transformed from being
Linda who did the killing to Huish and this in
the course of the cleaning up afterwards, washing
himself.

1411, he talks about ambiguity:
There is some ambiguity about the first
one.

1411, 15:
There is a confusing mixture of references
to Linda and himself. This could be·

interpreted in a variety of ways. It might
be thought of as being a slip of a tongue
or an error; whatever it is, it is a mixture
of both approaches ..... She did this, I did that.

And that is where you begin to get Ls and Hs all
desi'gned to show conscious planning.

(Continued on page 66)

C2T42/l/VH	65	5/10/88
Huish

MR SLICER (continuing): But that is compounded by 1413:
the entry is described in terms of 'she
did this and that' and 'she' once again
is the excuse -
and so on.
If one's the truth, the other is not so
it would seem to be a mixture of truth and
not-truth; unless it be alternatively some
slip of the tongue or a mistake or perhaps
there are other things that I can't think
of to explain it. In the - this trial we
have heard again a description of the Accused
creating 'Linda' -

and he then takes that into 1414 and I have quoted
those two passages earlier and I will then turn
to the question of memory.
At this trial, for the first time, we have

a clear description of when it began:

it shows to my mind the early stages of
making a plain statement of what occurred
with very little attempt -
When he is queried as to when that is challenged:
I suppose it would be best if I stated that
as far as I see it, there is a pattern of
an evolution of an idea and this does not have a psychiatric explanation that I can
see, but can be explained in other ways.

The central proposition was does

confabulation produce differing stories .
which are held wrongly but do not necessarily

show premediation or do the differing stories
show a conscious pattern? (Continued on page 67)

C2T43/l/ND 66 5/10/88
Huish

MR SLICER (continuing):

Now, what this witness is doing is

interpreting what the accused said with what the
accused meant, giving it a value judgment or a

value loading and in the end product reachin&
a conclusion of normalcy, planning, unbelievability

---and most importantly in this, the non-existence of

a process of confabulation.

TOOHEY J:

You may be right, Mr Slicer.

It is possibly also

open to the construction that the psychiatrist
having, for other reasons, expressed the view that
there was no mental illness then went on to look
at a whole range of factual situations with a view
to seeing whether in any of those factual situations
there might be a clue as to some mental illness.
But having done that he is saying, as it were, by
way of reinforcement of a view otherwise reached,
"Well, I cannot find anything in all the statements
that he made, the accounts he gave to the police
and so on, which would point to any psychiatric
disturbance." In other words, its impact may have
been entirely negative to exclude the possibility
of some psychiatric illness?

MR SLICER: Right. Accepting that, Your Honour, the critique

then becomes, "But in order to take that step he
subjectively interprets what the meaning behind
the words in the story were and when he is challenged
to that and said, 'Well, supposing the meanings
were different, would you not get a different
conclusion?' and he says 'Yes'. 'Well, then where are the rules?' and he says, 'I make the rules.'"
So it is the process of interpretation giving it
a meaning, giving it a value judgment and then
dressing it up as a psychiatric expression of
opinion in, what we would say, is a very damning
way against the applicant because it is the
methodology whereby he gets to that is our critique.
Your Honour, I do want to go on to the attack

on that, and that is a separate area and will take

some little time. If I can answer that question: we
attacked-it precisely that way to show that it was
a game and we say that the attack indicates that it
ought to have been treated from the word go as
inadmissible.

WILSON J:

We will adjourn now ~or lunch, Mr Slicer.

will adjourn now until 2 o'clock.

AT 12.56 PM LUNCHEON ADJOURNMENT

C2T44/l/MB	67	5/10/88
Huish

UPON RESUMING AT 2.02 PM:

WILSON J: Yes, Mr Slicer.

MR SLICER-: Thank you, Your Honour. I will only briefly give
references to the evidence in relation to the
plan from now on but I want to just open by going
back to a question before lunch about the relevance
of the plan and the evidence relating to that
to the issue of memory in so far as it related
to confabulation, the proposition that
Justice Gaudron put before lunch.
Central to the debate was whether a fragmented and reconstructed memory would produce a consistent
even if incorrect version or a series of disparate

ones. The evidence of Dr Bell in relation to
the chart attempted to show that on his view
of psychiatric theory the process of confabulation would not have occurred. So the issue was whether the differing accounts supported either side
of the psychiatric debate and we say, first of
all, that the restating of the facts in the form
of the diagram did not go to that issue, that
is, the consequence that one takes from the differing
events or accounts rather than their occurrence.
Secondly, the restatement of facts and their

recording in diagram form depended upon the
interpretation of facts and statements, the meaning

of which was in dispute; so that it is the internal
methodoly of going and interpreting the facts
and statements and saying what they meant which

were in dispute. As such, that process represented
a combination of opinion and the use of selective passages of evidence, not a series of assumptions

on given or unambiguous material. And it is
our contention that that process did not come
within the province of an accepted scientific

process acceptable to a judicial system. So that is how we would put the restating
and I simply add to that one further proposition:
this was a rebuttal case of the Crown, not part
of its case relating to the issue of guilt or

otherwise. So you need also to analyse the evidence
in the light of, "It was attempting to rebut",
it was not just a fresh case for the Crown.
Your Honours, we had attempted, having been

met with that evidenc~.to combat - and I just
want to give some evidence from the doctor himself
as to why or how we say that the evidence was

inappropriate. At 1457, in relation to the

C2T45/l/ND 68 5/10/88
Huish
parody of the sexually aroused woman proposition,
he conceded tha~ he was not using any special
skills of a psychiatrist in saying that - 1457,
line 20. In terms of the caricature of a mad
person then not being a genuine article he simply
says:
That's what I said and that's what I do
think.

And at 1459, he answers:
so far as the melodrama is concerned I believe
that once again we're outside the region
of special expertise .....
Right, so you're not there saying, as a
psychiatrist, that this is? ..... No, I rather
thought it was self evident.

So the first proposition is that the doctor is
erecting his theory or his opinion on the basis
of simply personal beliefs and it is very hard,
once he has done that, to get inside the methodology
of him saying, "Therefore this person was not
suffering from mental disorder".
I want to turn to the debate or the critique

in relation to the plan and I go to book VII,
Your Honours. And I start to show the danger
of this methodology at page 1526 where the doctor
is being asked about the statement to the police
on February 28. In the original diagram, that
plan on February 28 is not mentioned at all,
he had not had that on the original plan.

GUADRON J:

Mr Slicer, why does a defect in methodology

raise any issue of admissibility?
(Continued on page 70)

C2T45/2/ND	69	5/10/88
Huish

MR SLICER:

A defect in methodology does not raise a question of admissibility as such, I concede that. What we

are saying is, that in this case the methodology was
so defective that the form and nature of the evidence
could not be characterized as opinion or expert

evidence at all,

so we simply use that to say at all.

It is notan attack or critique on the internal

~-- -methodology of blood stains or fingerprints or

voice prints or whatever. It goes to the very basis upon which an expert can or may not give evidence at all. He is no more able, we say, to sq.y, "I believe
this man," "I disbelieve this man," or, "Those words
mean X," than anyone else in that court room and,
as such, he ought not to have been permitted to give
the evidence at all.
If I may just add to the second limb of that, also
if it depends on the selective obtaining of information,
it be wrong. For example, at 1526 he says he does

not see:
You don't see any of these as having any
psychiatric implications at all? ..... I think
you've understood my message, Mr Slicer.
So, in a statement which he made on February 28
the doctor ignores it until this debate because he does

not see it as having any psychiatric importance.
1529, there is debate about whether - what the word
"create" means, should there not be an "L" in
"creates Linda.":
No, he said he met

he begins to interpret the evidence into 1530 and
says he believes it would be unfair to add that.
1532, he admits one entry:
Well strictly speaking it is not correct,
he in fact had lied and he said that he had
taken it to another place and he corrected

it the next day. And just going above that:
So I don't get a question mark for that? .....
I wouldn't do it.

I will not go through all of this. Your Honour's

point is correct. We do not wan1: to .n:i.t;pick 4::ht:. methodology
line by line. What we say is that the methodology

means it is outside the parameters of psychiatric

evidence. He says - and one of the tests of scientific
opinion on evidence is that it is an identifiable

doctrine of knowledge. He says, at 1540:

I've decided the rules for this one.

C2T46/l/VH	70	5/10/88
Huish

So he has made up - this is in terms of why we cannot
have an "L" or an "H" or why he does not interpret

the evidence differently. He says:
And I was in error -

Line 9 -
Let me be more preicse. If he is representing himself as wearing a dress because he is
acting in the role of Linda then he deserves
an "L" but if he states, as he did, in that
particular sequence, that he personally put
on a dress, not maintaining at any time
during that particular series of statements
that she put on the dress, then he doesn't deserve
an "L". He only deserves an "H".
But that all depends - that's all dependent
on your interpretation ..... Well, in any sequence
somebody decides the rules - - -
And you've decided - - ..... I've decided the
rules for this one.
(Continued on page 72)

C2T46/2/VH	71	5/10/88
Huish

MR SLICER (continuing): The process of selection as to simply -
we say, his devisipg the chart as a persuasive or
inferential matter for the jury, not as a
scientific - within the area of a scientific discipline,
is simply he makes up a set of rules which leads to
the conclusion which he has already decided upon.

--~-He must, of the very nature of page 1540 to page 1541
say - I have said that - page 1544, when he is being
asked about speculation:
can we have a question mark just to
remind us that we ought not to speculate,
we ought not to say that he makes no claim

for "Dressing, Driving" and so on. We
ought not, we just don't know?

because he is talking about the previous trial -
Well there is no ....
No question marks please Doctor? ........ .
There's no question mark in our minds about
what was said then because we do know, you
and I so we would have to find another symbol.

It is the process of selection where he says, for
example, and I now turn just briefly to the first
trial. It would be crucial in a jury's mind, if
they were to take this, to go to trial one and read along there, in the form of opinion evidence, "Well,
he was acting a game, Dungeons and Dragons, when he
invented or created Linda", in trial one, that is
what trial one said. He did not do anything about
dressing and driving in trial one, if you read the
graph. He is silent as to that. So he must have
invented the story of dressing as Linda and driving

as Linda, "or", if you wish, in trial two. Now that is
not true, but the doctor was only able to select
admissible evidence from trial two.

he met his friends, took the newspapers, he is blank. When we come to whether he washed, say, whether
He gets a different answer between trial two and
trial one. You will see, trial one, G becomes L.

Now is that true? The jury would look at that in
a simplistic way and say, "This is opinion
evidence. This is factual material that the doctor
says. Huish said in trial one he was playing games.

In trial two he said he was Linda. In trial one
under Dressing he was silent, in trial two he said

he was Huish. In trial one he said he was silent,

in trial two he said he drove as Linda. In trial one
he said he entered as Linda, in trial two he said
he entered as Linda escaping from her boyfriend, a

different proposition. In trial one he said he
killed as Linda, and that is crucial, and in trial
two he said he killed as Linda and Huish, because

C2T47/l/HS 72 5/10/88
Huish
the doctor was saying, "But the words in this
trial had 'I' and 'she'." He used "I" sometimes.
He used "she" sometimes. So the jury would say,

"He has lied there. He claimed to be Linda in trial

one. He claimed to be both Linda and Huish in
trial two." Now that is an interpretation of
----what the doctor said his words meant.
Trial one, under Washing, he claimed to have washed, afterwards as Linda fading into Huish, yet
in trial two he washed as Huish. Trial one he meets
his friends blank. Trial two he meets his friends
as Huish, and we have another mark, because that

was added. In trial one we have an addition with
those two marks and they are the only ones, I think, in that sequence, apart from - yes, that is the only sequence which is consistent. The jury would take
that as being an assertion by an expert that he was
telling differing tales between trial one and trial
two, and if the jury followed that methodology they
would conclude that he was lying on his oath in
relation to both trials.
Now, the debate in the cross-examination is,

"Doctor, you got it wrong", but once you have set
up your edifice, that effect on the jury when they
retired, assuming that they had made notes of this -

it was before them for days - would lead them to
believe that between trial one and trial two nowhere
was his story even internally consistent according
to Dr Bell. It is the process of selection that is
our attack or critique which says not just that the
methodology is wrong, but that the methodology be so
wrong or so dangerous that it ought not to be given
the guise of being scientific or opinion evidence.
(Continued on page 74)

C2T47/2/HS	73	5/10/88
Huish

MR SLICER (continuing):

I will end with the final sort of

debate because under page 1549, when it is put
to him - passage of·evidence, that he has got
it wrong, he says:
why can't I have a question mark for
at least ambiguous -

statement -
there under dressing, that it was a
claim that Linda - that he was Linda -
thinking like Linda when he dressed.
Why can't I just have a question mark?

That it is ambiguous -
I believe - I believe there's no

ambiguity about it at all. I believe
that the answers made it quite clear
that Mr Huish was talking about leaving
the flat.
That's your interpretation of the
answer? ..... Unfortunately, even along
the rules which as I have already
conceded to you were devised by me.
Well why won't you give me a question mark - just in case I might be right - for "H"? ..... Because of the answers I've

already given you. This is a double
barrelled - in fact it's a triple
barrelled question - the last -

he goes on to explain the answer. The debate then
continues into page 1551:
Can I have a question mark for that? .....
I wouldn't give you a question mark
there at all, Mr Slicer, I'm afraid.

You wouldn't give me a question mark.
All right ..... can I have those two
back ..... What about the abreaction test,

Doctor? He claims to have been Linda

whilst driving. Why does he get an "H",
or why does he get nothing, sorry? ..... Oh,
I found that beginning part so very vague,
I wasn't sure what was happening there.

So he is marking his plan in the nature of setting
out an objective scientific methodology and yet it
is no more than a selective process which counsel
would or would not use in his address to the jury.
But it is in rebuttal. It is in the form of an

C2T48/1/SR	74	5/10/88
Huish

eminent psychiatric expert giving factual or

inferential evidence dressed up as opinion. He
agrees in page 1553 that he has got a couple

wrong. We get a couple of "H's".
Can we have an "H" there then,
please? ..... Yes·.
Can we have an "H" for meeting his
friends too, with those two little black lines going through it? ..... You're absolutely right. There's
a - missing there.
And the black lines ..... Yes.
And can we have another "H" please
for newspapers and the two·black
lines? ..... yes, I think you're correct.

GAUDRON J: What were the two black lines?

MR SLICER: The search for that. Yes, thank you, page 1532

and 1533. These were items added at the suggestion
of the defence which said that he had missed out
or was selective in relation to the evidence.

For example, an easy answer, Your Honour. 28 February,
he had left that off entirely and there are two
lines all the way along the cross. And then what
we were attempting to do on cross-examination was
to get him to add as many variations as we could.
And I think the summation, and I will finish my
quotations here, the summation of the critique is
really set out on pages 1560 and 1561:
Doctor if we can return to the board.
Would you agree that the way we
interpret that board depends on what's
on it and what's not on it. If I get
an "L" for Linda dressing, at trial two,
we might have a different proposition? .....

where did you want to put an "L", sorry?
I still want my "L" down in the bottom
of the left hand· corner, trial 2, I
want an "L" instead of the red "H".
You see it depends on what we feed onto
the board? ..... Ah, well, if you did that
it would improve my argument rather
than yours.
You see it's a game isn't it doctor, that
board's a game? ..... It is a game in the
sense that it is conducted according to
rules?
And you've made the rules up? ..... And I have
devised the rules for that board.

C2T48/2/SR

5/10/88

Huish

(Continued on page 75A)

And when I want to change the rules you won't let me, is that fair? .....
If you were to· introduce the rules,
you could provide a chart according
to your rules, and under those
circumstances you could derive what
information you could from it, but
unless you use consistent rules,
throughout all of the board, there is
nothing to be derived at it at all
other than chaos.
(Continued on page 76)

C2T48/3/SR	75A	5/10/88
Huish

MR SLICER (continuing):

Question:

I understand that doctor, did you consult the defence before you invented the rules to see whether you wanted to play on those
rules 7 ••••• No.
And that really was how the defence approached
the problem of playing childish games, about "Can we
have an L, a red H, and two lines" and so on.
The point as to how we characterize that evidence
is that it was no more than a game, but it was
a very effective game. This was rebuttal evidence,
this was not something being played out in the
body of the trial. It was not something which
the defence could answer in psychiatric terms
because the evidence had been led by, the psychiatrist

in the proper terms for the defence; this was
a rebuttal case. It was a very effective marshalling
of interpretation of what the accused had said to
give the appearance of lying, consciously
premeditating, planning and so on, which we could
only meet at the end by turning into a game and
getting him to acknowledge that.
Now, if that is the case then this does not

fit the test of expert evidence in that there is
something objective which other people contest,
there is something in the body of scientific
knowledge where other experts can say, "That does
not come within my discipline", or use other tests
where the results can be replicated, where as in,
say, if one takes the CHAMBERLAIN case at least,
a blood sample can be replicated or non-replicated
by another expert and so on.
His evidence was new and not in the nature of the

rebuttal. My final quotations from the reference
is 1293, 1295 and 1296, because that goes to the
proposition that the scientific basis of absence

of memory had never been put to the psychiatric
witnesses for the defence. And the book - I will

end there - 1293 is book VI. Your Honours, can
I turn briefly to my propositions and conclude there. 1. The CRIMINAL CODE provides for the
procedure of rebuttal evidence, it does not alter
the law relating to the nature of the evidence
which can be called by the Crown, so it simply
altered the procedure. It follows, AMBRAMOVITCH -
I will not go to that - the common law proposition which said that the Crown was entitled under
some circumstances to call rebuttal evidence
where the defence had been silent. I refer
Your Honours to some comments in BROWN's case -

and I will just give you page 72. The references

have been supplied, Your Honours. Do Your Honours
want me to give the references as I go through?

C2T49/l/MB	76	5/10/88
Huish

WILSON J:

Yes, please, for the transcript.

MR SLICER:

I am sorry.

BROWN, (1980) Tas R 61, and the

quotation that I was using from BROWN is at page 72, you
cannot use rebuttal to attack the credibility
__ 9f the defence case, and I simply leave that there.

WILSON J: That was an insanity case?

MR SLICER:	No, that was a 371, Your Honour, an alibi or - sorry,an attack made on credibility.
WILSON J:	Well, of course, it is a quite different

principle, is it not, when it is a case of the
Crown not splitting its case, and SHAW's case. to section 381(4)?

MR SLICER:

Thank you.

In HITCHENS, (1962) Tas SR at

pages 73 through to 75, the Court of Criminal
Appeal in Tasmania was dealing with an insanity case and they start off by saying this, at 73:
We think that s.381(4) is a statutory rule of an enabling character to be read as
auxiliary to the established rules of evidence.

And go down to the next part of that paragraph:

(Continued on page 78)

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Huish
MR SLICER (continuing):

We do not think the section abrogates the
general rule -

WILSON J:

This is page 75?

MR SLICER:

73, Your Honour.

I was saying 73 through to 75.

We do not think that the section abrogates the general rule that a rebutting case may
no more be split than an original case.
If the Crown gives evidence of sanity in
its original case without objection we think
that would constitute waiver -

although I need not trouble you with that. They
go down at the bottom of 73:
The general rule is that a party may not
split its case on any issue. That rule
is applicable both to the issues on which
the burden of proof is on the Crown as well
as to the issue of insanity on which the
burden of pro~f is on the accused -

and they then quote SHAW. They go on to say that
it is a matter of discretion - page 75 - for the
Court as to how section 381(4) will be used:
The same consideration does not apply where
the discretionary power falls to be exercised in relation to an issue upon which the burden
of proof lies upon the accused. This is
not to say that a trial judge ought without
good and sufficient reason permit the Crown
to call evidence of sanity in answer to
the defence evidence of insanity where the
Crown had in any substantial way set out
in its original case to anticipate that

alone.
defence by witnesses called for that purpose

I am not contending that the Crown ought not to
have been allowed to call rebutting evidence,
What I am saying is that 381(4) alters the procedural
basis. It does not, nevertheless, affect the
substantive law relating to rebuttal and we say
the Crown did more than rebut the defence case
than this one.

WILSON J:

So long as its evidence was directed to showing

or proving the sanity of the accused would you
agree that that was a rebuttal of the defence
case?

C2T50/l/AC	78	5/10/88
Huish

MR SLICER: No difficulties - no, Your Honour, I would not.
I would not say th~t they could have any open paddock at all, in other words, they could not
bring along 38 witnesses of character and trace
the person's childhood back to 19 - - -

WILSON T:- Well that is a question of remote relevance
generally.

MR SLICER: With the reservations of relevance and not
introducing rebutting evidence not to the issue of insanity
but to the issue of credibility.

WILSON J: But as long the evidence in rebuttal is going
to the issue of sanity, then it does not have
to be controlled precisely by the evidence led
for the defence.

MR SLICER: I think that is right, Your Honour and I do
not take issue with the Western Australian position
in THOMAS and the Queensland position in PATEMAN
with the - for example in one case where the
accused has said, "I had a particularly close
relationship with a girl" and the psychiatrists
say that is significant, you would be permitted
to call evidence that he did not or he had hardly

seen the girl. I do not quibble with that,
Your Honour.

WILSON J: And if Dr Bell's evidence was seen to be an exposition
of his opinion that the applicant was sane and
not insane as contended for by the defence
psychiatrists and in so.far as his evidence was
a description of the assumptions on which he based
that conclusion you would have no objection?

WILSON J: No. If he had confined himself within the
acceptable scientific norms et cetera - no.
I am simply stating my first proposition to say
that there must be some - 381(4) does not allow

the Crown to have another case, that is all. (Continued on page 80)

C2T50/2/AC· 79 5/10/88
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DEANE J:	But under 381(4), is not the Crown precluded from calling evidence of sanity in a case such as this otherwi·se than by way of rebuttal?
MR SLICER:	Yes, and it is the rebuttal - - -

DEANE J!--Which means you would not expect to take a very

narrow view to what can be called in reply.
I mean, the point of the section is to say it has all got to be in reply.

MR SLICER:

Your Honour, I am trying to attract two

propositions: one, the Crown is limited to evidence
in rebuttal - that is what may strictly be produced
in rebuttal; two, BR0WN's case, that evidence
in rebuttal cannot be led as to the issue of
credibility or ought not to be led as the issue
of credibility. It would be proper for the Crown
to rebut by saying, "None of this shows a mental
disorder or none of this would establish whether
he knew the quality, nature of his act or whatever",
but it is not permittted to rebut by saying,
"This shows that the man is a liar and, in my
opinion as an expert, he could not be insane
because he is a liar".

DEANE J:	But what if the accused had given evidence that
he did not know what he was doing?
MR SLICER:	Yes, the rebuttal could go to that issue.

DEANE J: That he did know what he was doing?

MR SLICER:

No, it could go to, "He doesn't have a mental

disorder", or, (b), "The nature of that mental
disorder does not involve as a psychiatric
consequence the inability to determine whether

it be right or wrong". The psychopath's

proposition, for exampl~- he knew it was wrong
but he still wanted to do it sort of thing.
It can go to those issues, Your Honour. It cannot

go to the, unless it is rebutting, factual
proposition put, like, "I knew the girl well" or whatever, unless it is rebutting that. It
cannot go to use it to attack credibility or
believability in order to get to those propositions.
My second proposition is: an expert witness

cannot point out to the jury what they could work out or decide for themselves; it cannot be used as a series of inferences to affect the
jury. And I refer Your Honours to the decision
of this case, CLARK V RYAN, (1960) 103 CLR 486,
at pages 492 and 501. It is just a general
proposition, Your Honour~ and there is nothing
which - if I can take Your Honours briefly to
492:

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His evidence really amounted to putting
from the witness box the inferences upon
which the pla1ntiff's case rested -
is my first proposition that I take from that
and at page 501, my second critique of the evidence:
Opinion evidence to account for a

happening that is described to a witness
is admissible only when the happening can
be explained by reference to an organized
branch of knowledge in which the witness
is an expert.

And we say that the introduction of the chart
on a set of rules, that is 501 to 502, is outside
of the parameters of that.

(Continued on page 82)

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GAUDRON J:

It is not only when the happening is explained but when the happening can be explained.

MR SLICER:

Right.

Can I just jump ahead a little bit.

There is a difference between evidence, for example,

-~~of intent and capacity to form intent. So a
psychiatrist, for example, could say, "I do not
believe that this person does have the capacity to form
the intent", as dist,inct from saying, "This person
had the intent to do X" or "This person did not have

the intent." Now, we say that that is similar to
what Your Honour is saying. That is the distinction

we would seek between those propositions. 3. An
expert is not entitled to speculate on a matter
directly to a fact in issue and no evidence -

sorry, I will stop there. I refer Your Honours
to STRAKER, (1977) 15 ALR 114 - I am using the
unauthorized reports, I think.
Now, I am conscious of the debate here and in

Canada and the United Kingdom about the ultimate
question, debate about insanity, and I do not wish
to take that proposition, I simply refer you to

the headnote in STRAKER. I am not going to go through

the authority in any detail. The particular
reference is at page 114, which is picked up in
the headnote at 113:
But he is not entitled to speculate on a
possibility directly relevant to the issue
or to a fact in issue when the speculation
is adverse to the accused person and
when there is no evidence which would support a
conclusion that the fact was established.

And we, of course, say that the observations about
acting and credibility and believeability which was
central to the jury question were a result 0£

speculation. My proposition which flows from
that - and Your Honours will be aware of the debate
about can an expert give evidence as to the ultimate

question and the ultimate answer - may I say that

we would put it this way. No evidence can be
received upon any question, an answer to which
involves the application of a legal standard.
I invite Your Honours to consider the comments in PALMER V REG, (1981) 1 NSWLR and at page 214
His Honour Mr Acting Justice Glass says this
between E and F:

The third ground argued was that tender of
such evidence violated a supposed rule that
no opinion evidence, whether expert or
non-expert may be directed to an ultimate
issue for determination by the jury.

We, of course, say that that happened here.
His Honour puts it, we would say - and we would urge you to perhaps apply - he says this:

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The true rule, in my opinion, is that no
evidence can be-received upon any question,
the answer to which involves the application
of a legal standard.

(Continued on page 84)

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MR SLICER (continuing):

We would say that, in relation to

this case, that is precisely what the substance and
tenor of the Crown rebuttal evidence here was trying
to do. It was going directly to an issue of,
"Are you satisfied beyond reasonable doubt that
this man was guilty of the crime of murder? Has
--he established the onus, on the balance of probabilities?", and as crucial to that was a question of believability
and credibility.
Your Honour Justice Dawson raised the question

as to whether having formed an opinion that there
was no existence of insanity could not the doctor go
on and collect all of the reasons that were around in
order to support that. We would say this - - -

DAWSON J:	No, I meant the reasons on which he based his opinion.
MR SLICER:	I am sorry - but which you would take from the

trial process itself. We would say that a lot of
the evidence that was given comes to this

proposition. The Crown ought not use its cross-
examination of the defence in order to set up
fanciful theories in order to use its rebutting
evidence. In other words, it is one thing to
say - and I will come to KILLICK - it is one
thing to say, "I don't believe this", or, "These
are the opinions", and so on; it is another
thing to go and pick up from isolated pieces
of cross-examination of a defence witness theories

or propositions in order to rebut them. I do
not put it any higher than that.
My next proposition, speculation as to premeditation, coolness and anger went to the
very issue to be decided by the jury, and I refer
Your Honours, first of all, to TURNER, an English
case, (1975) QBD 834, and I was referring to a
passage on page 838, they talk about credit, but
I will come to page 840:

The evidence was tendered on the issues
or provocation and credibility.

And, of course, provocation was an issue here for
the jury, of course, but TURNER at page 841,
line E:
In such a case if it is given dressed up
in scientific jargon it may make judgment

more difficult. The fact that an expert
witness has impressive scientific
qualifications does not by that fact alone
make his opinion on matters of human nature
and behaviour within the limits of normality.

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In that case the defendant was not claiming, of
course, insanity, and I do not say TURNER is on all
fours here, but once Dr Bell has given his opinion
that there be not an existence of a mental disorder,
which he has done before we come to the plan, he
cannot then, we say, proceed further - once he has

.:~- that opinion - proceed to go further and argue

coolness, premeditation, planning and lying. But
the first part of his opinion was within his
expert province, and outside the experience of the

jury it was no relevance. I go then to page 842:
The same reasoning applies to its suggested admissibility on the issue of credibility.
The jury had to decide what reliance they
could put upon the defendant's evidence.
He had to be judged as someone who was

not mentally disordered. This is what

juries are errpanelled to do. The law
assumes they can perform their duties

properly. The jury in this case did not
need, and should not have been offered,
the evidence of a psychiatrist to help
them decide whether the defendant's
evidence was truthful.

(Continued on page 86)

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MR SLICER (continuing):

Why do we say that that has an effect

out of this evidence out of proportion? We would
refer Your Honours to the case of GILMORE V REG,
(1977) 2 NSWLR 239 as to the effect of this particular
form of evidence.

DAWSON J:

But in that case, the evidence, the opinion evidence

-- ~as as to the truth or the credibility of the witnesses.

MR SLICER:

Yes.

DAWSON J: Well, that is different, of course, to this case,

because as it is pointed out in that case, of course,
you must be able to prove the facts upon which the

opinion which is relevant-if an opinion is
relevant - is based.

MR SLICER:	Yes.
DAWSON J:	And there is no doubt in this case that the opinion

was relevant and went to the issue of insanity, for
which purpose it was permissible.

MR SLICER:

The evidence as to the existence or otherwise of a

mental disorder, yes.

DAWSON J: Yes.

MR SLICER:

The existence or otherwise of the statements, yes.

It was the interpretation of the meaning of the statements which then was used to go to the issue of
credibility that we say is outside of that question.

DAWSON J:

You see, there is a passage at about Fon page 840

which is relevant:
Before a court can assess the value of an
opinion it must know the facts upon which
it is based. If the expert has been
misinformed about the facts or has taken
irrelevant facts into consideration or has

omitted to consider relevant ones, the
opinion is likely to be valueless.

And then it goes on. Bur t:hP.n. of course, it points
out that the opinion :in itself here was irrelevant
because it was only called tor the purpose of
establishing that· .credibility.

MR SLICER:

Yes.

In this case, had Dr Bell said, "Given 30

blows; given a dressing up; given XYZ and so on,

I form the opinion," we could not quibble. It was
that he went to the internal meaning of differing
statements of - in other words, he applied a
linguistic test to the internal meaning of differing
statements of the accused, interpreted them and
then used his interpretation as to the issue of
credibility, not as to the issue of sanity. That

C2T54/l/VH	86	5/10/88
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is how we would say that. And that effect has undue

weight - my next proposition. Because of its apparent
objectivity an opinion that claims a scientific
basis is apt to carry undue weight. In addition, it
is difficult to rebut such an opinion. There must
be a demonstrable objective procedure for reaching
the opinion. That is GILMORE V REG,(1977) 2 NSWLR 239

--~ ·which quotes, with approval, the United States

decision in relation to that. We could not locate

the volume in the library, Your Honour. The references

are at page 239 where it quotes that. I will be
finished soon:
Where a psychiatrist rebuts the existence of
a mental disorder he cannot, in the guise of
being an expert, use the evidentiary material
to give opinion evidence as to the questions
of intent, credibility, planning and deliberation.
And I refer Your Honours first of all to the Queensland decision of ASHCROFT, (1965) Qg. R 81, and Your Honours
will find the quotation at 83 of the witness, and
the comment in relation to that by Mr Justice Gibbs
at 85.
(Continued on page 88)

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MR SLICER (continuing):

REG V NELSON, (1982)

Qd R 636, and

Your Honours will see - I should concede
at the outset that was not a case of sanity, it
was a question of intent, but nevertheless
evidence of planning and meticulous at page 639
is commented on at page 640 at the bottom:

In my opinion, to admit the
evidence of Dr Quinn, would have

amounted to an usurpation of the
function of the jury to decide a
matter which they were able to judge
for themselves.
And we say, credibility and believability in
this case were precisely the issues which they
ought to have decided. And in any event, going
to the point about the plan, psychiatry can no
more give an answer to the sort of questions that
Dr Bell was posing than any other discipline and
I refer, Your Honours, to a note 38 in the
·( 1986) · i 9 ANZJ Crim P. 20, Dr· Bartholomew says:
The fact of the matter is that modern psychology and psychiatry do not
recognize sharp lines of demarcation
between various states. For example,
no psychiatrist would recognize
consciousness as against unconsciousness
except, perhaps, at the two extremes
and a similar statement holds for
voluntariness. Intent, both general
and specific, is not a nice neat concept
of mental illnesses from all aspects and is not concerned with matters such
that either exists or is absent .....
as artificial cut-off points in relation
questions posed by the law cannot ever
to various features of mental life .....

be answered by psychiatry which sees
matters dynamically and in terms of
continua rather than being present or
absent.

And we certainly say that that so far as it relates to the plan is applicable here. Finally, I end
with FRUET and I have made the comment earlier.
There is a distinction between an expert giving
evidence of intent or believability and the
at page 82. And we say that at page 82 giving
capacity to form intent and I simply refer you to
the example of page 82 is the correct way of doing it.

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Your Honours, I wish to conclude. There had been
a discussion earlier in relation to whether the
psychiatric evidence had been let loose or was
allowed out to go and roam where it will and to do

what it will. May I just end with a quotation.
In the lush pasture of the corrrrnon law
a number of sacred cows gra·ze and
no one dares to cull them or even try

to make them healthier. One answers to
the name of expert evidence. It is a scraggy animal, despised by many, yet
its continued existence is essential
for the proper administration of
justice. Properly cared for it could
provide good progeny but the breeding
would have to be selective as some
strains may not be worth encouraging.

And that is Lord Justice Lawton who was the judge
in TURNER, the Queens Bench case I referred to,
making a quote in the limitations of expert

scientific evidence in 1981. We do not contend,
Your Honour, that section 381(4 ) ought to exclude
proper scientific rebuttal evidence, we simply
say in this case that the extent of the evidence
ought to be culled. If Your Honours please.

WILSON J:

Thank you, Mr Slicer.

The Court will retire for

a few moments to consider the course that it should
take.

AT 2.52 PM SHORT ADJOURNMENT

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UPON RESUMING AT 3.05 PM:

WILSON J: Mr Jacobs, the Court would like to hear you,
in particular with reference to the evidence
that was given by Dr Bell over the chart and
the function that that chart served in supporting
the doctor's opinion.

MR JACOBS: Thank you, Your Honours. In view of that and
in view of what Your Honour Mr Justice Wilson
said as to the scope of section 381(4), I do
not propose to read anything from the first page of my submissions which I now pass to the Court.

WILSON J: Yes, well, I have indicated the matter on which
we would like to hear you at this stage,
Mr Jacobs.

MR JACOBS: If I can turn to paragraph 6 of my submissions.
which I suggest is an essential be.ckground
of the psychiatric evidence and specifically
the evidence of this chart. It was an extensive
case, as my learned friend Mr Slicer said, over
21 days. It occupied well over 2000 pages of

evidence. The bulk of that was from six
psychiatrists, three called by each side and
a psychologist called by the defence. There was extensive reference by many witnesses to
matters that had been said in the previous trial
and as would be shown in the transcrip½ although
it is not all with Your Honours, lots of witnesses
were asked about the things they had said in
the previous trial and so forth and two of the
three defence psychiatrists, that is Dr Pargiter
and Dr Burges-Watso~ placed considerable emphasis
on the question of the accused in prison whilst dressed as a woman, after they had administered drugs to him and a video tape of which was played
in the court as part of the defence case, although
of poor quality.

The typed out version of that which appeared

in the transcript is not in the Court papers
also. I do have a copy with us. If it is necessary -
it was of poor quality and much of it did not

come out. The transcript is interspersed with
"inaudible" and words of that type but it was

heard by the jury and seen by jury. And as we
say, at the bottom of that second page in para 6,
there was a very significant amount of detail
of the accused's whole background, his life history
going back to when he was a child - his father
was killed, for example, his whole life story
going back to being a baby to the present time.

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It could, I suggest, fairly be said that
the accused was put under a microscope, things
that he had done, his various attitudes, including
for example that he liked to have ghost stories
read to him before he went to bed or when he

was in bed as a boy. One of the defence psychiatrists

-- saw something unusual in that. As my learned
friend, I think, Mr Slice~ hinted at, the Crown
psychiatrists, with the exception of Dr Lopez,
a few days before and during the second trial,
were denied an opportunity to see the accused
and their evidence was given on the basis of
the voluminous material in court both from the
witnesses and from various documents, plus what
the accused agreed he said in the first trial
and a mass of other matter.
The matters in the chart perhaps are not completely clear to the Court as to what they
all entail and I would like to go through the
left-hand column and just mention what they include.
Mr Slicer said February 28 was a date the details
of which were put in at the insistence of the
defence in cross-examination of Dr Bell. They
include, in each case, "Nothing happening".
So we have got the two parallel lines at an angle
but, in fact, there is nothing happening on that
date because that was the date - and I say it
was put in at the defence insistence, in my
terminology, but that was the date on which the
accused was spoken to by the police - undisputed
evidence about that - as one of a large number
of people who knew the deceased and questioned
as to his knowledge of the matter and he said
to the police he knew nothing absolutely whatsoever.

(Continued on page 92)

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MR JACOBS (continuing): So he gave details of his movements
that day and so forth - that is included in the
papers that are not before the Court - it is in
the evidence of Sergeant Williams and another
police officer of that day. So the date added at Mr Slicer's insistence but nothing relevant

that day. Now April 2 - and we have gone forward
now four-and-a-half weeks - there is an oral
discussion with the accused or the appellant by
police officers and again does not appear in the
papers because the evidence of those two police
officers was not repeated although I understand
it is with the Court if it needs to be referred

to. And my learned friend, Mr Slicer, will no
doubt correct me if I am wrong as to what I suggest
happened there but on that occasion the appellant
having had it put to him - as Mr Slicer said -
that he had been ·seen in fact in the street two days
later walking in that area when he denied ha~ing
ever been·to the area said, "Yes", he had been
there at the time of the killing and he had seen

a woman called Linda do it, a ~oman he had met
and had had in his hotel in Hobart, which

Mr Slicer referred to in quoting somP rif the

evidence. So that was the account, it was a
spectator and the L goes in there because there
he is saying that this person Linda, :a completely
separate person, performed the killing.
Now, if we go to the next one, April 2,

that does appear in the papers and that is the
record of interview that was conducted with the
accused that day and that appears at page 1601

of the papers. I will not stay to read that to
the Court at this stage but the full interview
is there. And I suggest that a synopsis of that

was that he - it goes on to a second account,
a different account - had bought a wig which was
a Linda-brand wig, hence the name Linda, and had
practised taking on a female voice, getting dressed
as a female et cetera and in that disguise had
g9ne to the home of the deceased to speak to him,

that the deceased had eventually recognized him
and abused him and that that led to a confrontation
during which, or after which, he, the appellant,

killed the deceased with this large number of

blows that Mr Slicer pointed out. So there we
see a reference that H for Huish doing everything
except in the first column where the evidence

had been that he had created Linda,=the:fictitious
Linda, the character he wore the disguise for.

Then April 2 again -

WILSON J:

Well why does not the first April 2 have all

L's because it was Linda who gained entry, it
was Linda who did the killing, at least in those columns?

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MR JACOBS: Well the evidence of the witness was, Your Honour,
that the L there shows that he created a disguise
for himself as Linda and he, in fact, went on to say that he practised some half-a7dozen or
so modes of introduction such as: that his boyfriend
was chasing him; such that he,as a woman,had come

---to do a survey and things like that.

WILSON J:

But I thought the Land the H were intended to show the manner in which the accused identified the actor, either as himself or as Linda?

MR JACOBS: Yes. I agree with that except that the creation
of Linda on that day,his evidence was that when
he went - his evidence in the interview was that
when he went into the home he, .at that stage,
had fooled the deceased and was invited in as
a lady walking down the street who was in trouble,
I think, escaping from her boyfriend, and was
given refuge inside the house and to illustrate
that point of the interview I will perhaps refer
to the specific passage, Your Honour. It is at
page 1602 at the very bottom of that page when
the answer is:
Yes, but when I told you before that I went
up to Leigh's place with a girl called Linda
I went up there as a girl called Linda.
I went there playing the character of Linda.

Q. Are you saying then that you went to
Leigh's place dressed as a woman?

A. And then it goes on to other things. It says

Yes.
at the bottom of page 1603:
I was wearing a blue skirt, white blouse, white shoes, and an ash blonde wig, and

a white handbag.

He details where the things were purchased. So
the L was there, Your Honour because the account
was that for all intents and purposes to the
deceased he was received in as a female.

(Continued on page 94)

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MR JACOBS (continuing):

Then we go to oral evidence only

from those two police officers, Sergeant Williams
being the leader of the two, that the accused
accompanied them back to the scene that day and

showed them where he had done things. Now,
-- ~ photographs were taken of that - Your Honours have those photographs - and towards the end of
the photographs, the last photographs - there are
about a dozen in number - show the accused pointing
out different things to the police officers: - where
he had done the stabbing, where he went upstairs

and changed his clothes, taking clothes from
inside the flat, that is, clothes of the deceased,
clothes of the deceased's fiancee,to change his
clothing when he left the flat.

WILSON J:

Well, what has all this got to do with Dr Bell's

opinion?

MR JACOBS:

I suppose it is a ma.tter for Your Honours, but I was

trying to set out a background of the matters
that are covered there because it did not seem to
me that they were completely clear from either
the papers in front of Your Honours or what has
been said, what the different chronology dates
refer to. Your Honours may find them of no
assistance but I suggest, with respect, that the
background of the matter leading to Dr Bell's

evidence is important. I was going to go on
shortly to say that the two lines across, after
April 3, 1.48 pm, are said by Dr Bell to be the dividing line after which the accused had been
charged, but also after which the accused, for
the first time, suggests in various documents I
wanted to briefly mention, that the character
of Linda had taken over his personality, which is
what, eventually, a large part of the defence case
was.
If I might just go back briefly to April 3,

not in the papers, it was oral transcript - and 1.40 - which relates to the time which again is
the police officers that they were at a hotel and
they were called back to the prison at the request
of the accused who told them that he wanted to
correct false information he had given the day
before. At 1.48 pm, which is in the papers,
Your Honours - it is typed out at page 1616 -
the accused's statement appears - if I might read it:
On the 24th February at 6.35 pm I arrived at
the flat dressed ..... as a woman because I knew
Leigh would not let me in as myself and to
disguise my entry to and exit from the flat.
My statement last night -

that is, the interview -

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was not totally true as I had purchased the
clothing with the sole intention of killing Leigh.
I had convinced myself that I had to, in order to
have Julia, as I found life unbearably lonely
and depressing without her. When I said that
Leigh attacked me that was not true, I stabbed

him first. I am sorry for all the lies I
told last night but I have reconsidered my
position and realise that the only course open

to me is the whole truth. I had been
casually considering the possibility of killing
Leigh for some time, and I started to plan
to kill Leigh when I started to buy the
clothing. This was because I love Julia
and she chose Leigh to the exclusion of me
saying we could not even be friends any
longer.
The garbage bag containing the clothing was not deposited in town as I told you but was
disposed of at Franklin on the Huon River on
the Monday night.
I interpose there to say that Franklin is a township
about 40 kilometres south of Hobart. There was a
lot of evidence from the accused about that that
is in the papers, a lot of cross-examination about
it and there are two photographs showing him at
night in the city of Hobart pointing out to the
police officers, wrongly as this statement says,
where he had put the women's clothing and so forth.
They go back two pages, page 1614, at the bottom
of the interview completed the day previously
he has written:
Some of the events described in this

interview are fictitious. I have since made
a statement telling the truth about how I
killed Leigh~

(Continued on page 96)

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MR JACOBS (continuing):	Your Honours, it is my submission

that this part was an aide-memoire. Certainly
on a complicated matter, the completely admissible
evidence of Dr Bell that what the accused said
about Linda taking over his body only took shape
some time after he was in prison, having been

arrested. And if I may briefly refer to the
matters down the left-hand again, they were all
put in evidence by the appellant, if my memory
is correct; certainly they were at the first

trial. We have got what is called "Instruction"

11 1-3 11 and then "4" and then "5-7" are instructions
handwritten to the defence solicitor while the
accused was in prison, they are over a number
of days and they were tendered by the defence
and used by the defence psychiatrists and they
contain, as shown on Dr Bell's chart, details
of Linda taking control of him.
The other matters, the next four matters,

"May 1st to 3rd", "May 5", May 14-15" and May 28",
consist of writings by the accused in a notebook
he had - that was a notebook that had "Nature
Study Book" written on the front and
Mr Slicer referred to it as a "Nature Study Book",
that is what it was referred to in the trial,
and that was further passed on to the defence
psychiatrist. They used it to refer to as a
basis of some of their opinion and that also
was tendered.
The other matters, I think, are fairly clear

cut, the trial, what was said in 11 Trial11 and
what was said in what is called there the
"Abreaction" but I prefer to call "the interview"
because it was certainly clear the evidence of
the Crown psychiatrist, specifically Dr Bell,
that it was not an abreaction at all, and he
detailed, at length, his reasons for saying that.
My learned friend - I am perhaps slightly digressing here but my learned friend, in his submissions,

at the bottom of his first page and in part of
his argument criticized matters said there at
pages 1234 to 1236, 1241 to 1245 and a few other
pages mentioned.
I make the point, very briefly, and I suggest

it is all interwoven with the chart, in fact
reference to the abreaction is on the chart, that the psychiatrist for the defence placed considerable emphasis on what happened in that
interview that was video taped as the basis for

their opinions. And the Crown psychiatrist's
attack on it, their rebuttal of it which is set
out in the papers we have got, was that it was
not an abreaction test at all, that it had certain
faults, one of which was that there were frequently

C2T59/l/ND	96	5/10/88
Huish

leading questions which should not be present
in a test of this type; that there was a change
in the tone of the questions; there is a tone
of approval, a tone of disapproval; that there
should not be that; that there was touching of
the accused to give him - dressed as he was as
~~·a female, to give him encouragement, or it could
have had the effect of giving him encouragement.
And that the fact of having him dressed as a
woman, complete with wig and so forth, in the
circumstances, was itself very suggestive.
One particular matter of attack in it was

the reference to the number of different voices
that Dr Bell said he believed, or he interpreted,

he heard, in the inteview. And his evidence
on that was that in an abreaction, if there is
an abreaction, and I will refer to the process
of that later, a person does not take on anybody
else's voice, that he speaks as himself and that
here there was some seven or more different

characters that were taken off. And he referred
to the fact that Dr Burges-Watson, for one, had

distinguished several voices there. So his point
as to that was that it was not an abreaction.
In an abreaction the subject would not take on
any other voices.

(Continued on page 98)

C2T59/2/ND 97 5/10/88
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MR JACOBS (continuing):

If I could quickly refer to those

passages. They are all in book V, including
at 1247 at about line 13:
I avoid the use of the word abreaction
because in fact it was not an abreaction.
The events we witnessed are not those which
in my experience occur when a genuine
abreaction takes place.

And he said at 1245 at line 17:
The point I wish to make to you is this,
that if it is an abreaction, the individual
is gripped in the strong emotion and the
individual doesn't switch, doesn't change,
doesn't use somebody else's voices, an actor
does, it's more in the skill of the story-
teller such as the skill of the person who is -
who switches quickly from part to part in
dramatising books for the blind, but it is
acting and it is certainly not what is seen
in the genuine abreaction.

Now, a lot of my learned friend's - - -

DAWSON J:	I am not suggesting it was not evident but why was Dr Bell able to give evidence or why was his
evidence admissible on the question of the reliability of the abreaction test when he did
not base his opinion on it at all?
MR JACOBS:	Well, on the basis, Your Honour, that the defence

psychiatrist had, for reasons they went into, used
the abreaction test to strengthen and/or as a basis
for their opinions. Now, it was in front of
everybody in the court, Dr Bell saw it along

with everybody else. I suggest, clearly, he was
entitled to say, "Well, as a psychiatrist they are completely wrong in replacing any reliance

on it, it was not an abreaction."

DAWSON J:	So the evidence in rebuttal, the expert evidence in rebuttal,went beyond just expressing an opinion
on the fact in issue, which is sanity or insanity,
and went to denying the evidence to support
insanity in the defence case? There is a matter
of expertise.

MR JACOBS:

If I heard that correctly I would say no.

Mr Slicer said the defence psychiatrist did not claim that the factual matter that came out of
the abreaction was the basis for anything so that
any answers given were not taken - it was not, at Mr Slicer said, a truth drug. But they relied on
his reactions, tensions, movements, that sort of
thing, and emotions - if I can use that term - to
show things.

C2T60/l/MB	98	5/10/88
Huish

DAWSON J:

Yes, but I was just trying to investigate what was

the legitimate extent of Dr Bell's evidence in
rebuttal? It went beyond, did it, just merely
expressing his own opinion that the accused was
sane at the relevant time and went to what other
_matters?

MR JACOBS:

Well, it was this, Your Honour:

I would submit

that an abreaction may be appropriate in a case
like this to - - -

DAWSON J:

Forget about abreaction, just talking in

generalities first of all.

MR JACOBS:

Well, with respect, I am not sure that we can

talk in generalities because we were talking about
something that they defined as being a useful
tool in hindsight after the event that judged his

mental state at an earlier event. Dr Bell said,
in essence, if an abreaction had been done it might
have been of some use but this was not an abreaction
because it had not fulfilled - - -

DAWSON J:

Let me ask you, is he able to give his expert

opinion of the basis upon which the Crown
psychiatrists expressed their opinion of insanity?

MR JACOBS:	Well, have we moved on from the abreaction test?
DAWSON J:	I am not worried about the abreaction test, that

may be part and parcel of it, may it not?

MR JACOBS:

Well, I think perhaps I have missed Your Honour's

point.

DAWSON J:

To what extent could Dr Bell legitimately go beyond giving the simple opinion that he did,

that the accused was sane at the relevant times?

To what extent could he express an expert opinion

as to the basis on which the Crowri psychiatrists

expressed their opinion in rebuttal?

(Continued on page 100)

C2T60/2/MB	99	5/10/88
Huish

MR JACOBS: Well, as I have said, the appellant was looked

at under a microscope. So we had, for example,
the question that came out in judging personality
disorder which was gone into in huge detail with, I
think,some 30 or so personal traits examined.

DAWSON~:_ Well, you say, he could go - as I understand you -

-- ·he could go to any matter on which they expressed an
expert opinion, whether it be their final conclusion
or not, and express his.

MR JACOBS: Yes, I do say that.

DAWSON J:

Yes, all right, .....

MR JACOBS:

And he was entitled to attack their building blocks. Their building blocks, for example, that there had been

a personality disorder and with a background of a

personality disorder that that, under pressure, could

lead to psychosis.

So he certainly disputed that

there was a personality disorder and that involved

inter alia in a small part - - -

DAWSON J:

Or their conclusions that the man was acting or

feigning, or was not feigning, and so on and so on.

MR JACOBS:

Yes, I was going to particularly mention the matter of grandiosity or the accused's appearance in court,

behaviour in court, because that had been relied on

by Dr Burges-Watson as supporting grandiosity. You

can see him there yourself, or you have seen himthere

yourself beinggrandiose in court. Whereas Dr Bell was saying, well, perhaps he was but that does not

show a personality disorder.

But in this case, I

would suggest, because of the factual background
as perhaps illustrated in the chart it was a matter
of the accused having, as he claimed at the trial,

had his mind taken over by Linda, a Jekyll and Hyde

situation - - -

GAUDRON J:

Mr Jacobs, could I take you back to some matters

raised by Justice Dawson? Would it be fair to say

that expert rebuttal evidence on the issue of insanity
is confined to the statement of the opinion, the
identification of the matters upon which that
opinion is based and the explanation as to why other
matters were not taken into account?

MR JACOBS:	Yes, I would agree with that, Your Honour.
GAUDRON J:	And is it possible that the evidence, in any

situation, can go further than that?

MR JACOBS: Well, I cannot imagine an example offhand that I

want to quote that it should or that it can.

GAUDRON J: Well now, can we come back to the evidence given

in relation to the chart? Was it the statement of
an opinion about insanity?

C2T61/l/VH	100	5/10/88
Huish

MR JACOBS: I suggest that the evidence was - if I might go back
one step - the crux of the case was that Linda had
taken over the accused's personality or that it was
something he had made up later, that he was lying.
And the fact that he had not made reference to Linda
7 taking over his body consistently and, in fact, had

-- ·not said it until after he was in gaol for some time
charged with murder was, I suggest, a core matter
going to that. Now it, of necessity, involved -
if the jury found that he had made it up later, that

he was being dishonest about it. But that, I suggest,
was the simply crux of the psychiatric nature of the

case. Now, the defence psychiatrists looked at the
question of a - - -

GAUDRON J:

But is that not a matter for argument and persuasion ultimately? Presumably, Dr Bell could have said, "I
have failed to take into account the varying accounts
given by the applicant as evidence of insanity, as
evidence suggesting insanity." He could say that,
could he not? "These are not matters which I have
taken into account in forming my opinion" or, "they
are matters which I have taken into account in
forming my opinion."
(Continued on page 102)

C2T61/2/VH 101 5/10/88
Huish

MR JACOBS:

I suppose you could. One matter of debate, an

opinion by the defence psychiatrists, was the
issue of whether if there has been a psychosis,

which was essential to their argument, there could
be a full recall of events afterwards as the
accused's evidence eventually was that there was

---_ - in this case. They were asked as to that and
as to the different accounts that had been given,

many of which contradicted each other. The defence
psychiatrist had said as to that, "If he does
not remember he is either intellectualizing, and
each account is a fresh attempt to recall it".
Dr Bell's evidence was and I would quote,

for example, page 1409 at line 9:
looking at that as a psychiatrist, I looked
at these various events to see whether they
can be explained or should be explained
in terms of a psychiatric illness and I
found no reason to do so. I have an opinion
about what it means but in my opinion, as
a psychiatrist, it is not explained by
psychiatric illness.

This, I repeat, is the question of the varying
accounts; the late recitation ,of Linda. And
again at 1414 on the same point - at line 5:
it falls outside the realm of psychiatry.

And looking at these different accounts -
But what I do see is a consistent pattern.

And he details the consistent pattern of firstly,
no reference to - - -

GAUDRON J:

The question I would wish to put to you is, why

he may thereafter go on to say it falls into a
consistent pattern which is explicable on grounds

other than those explicable by learning and
psychiatrty?

MR JACOBS: Well, I would suggest that it was common ground

amongst the psychiatrists , and certainly
the evidence of Dr Bell, that unless there is
organic brain disease one does not attempt to
fill in the gaps later; that if there had been
a psychosis there would be gaps there; there would
not be full recall, there would not, perhaps,
be any recall and I cannot take it any further
than to say that it was put in that psychiatric
context. That the, fact.that chronologically there
is no reference to Linda taking over his body
until he is in custody -

C2T62/2/AC	102	5/10/88
Huish

DAWSON J: Well is he entitled to explain the reasons why
he came to his conclusions?

MR JACOBS: The reason as in looking at what was said on
various dates?

DAWSON j~- No. The reasoning for the conclusion'.which he
reached which was that there was no psychiatric
evidence of an abnormality or a psychosis or
whatever it might be.

MR JACOBS: Well, I submit he was, Your Honour, and that
what he was doing was simply saying that in a
situation like this psychiatry tells us that there
would not be a complete recall. Here there is
a complete recall and I refer to the following
evidence to show that there is a complete recall -
where there is a complete recall there is not
a psychiatric explanation and that, I suggest,
is all the chart does. It is an aide-memoire.
It could have been done orally by reciting things
said on various dates but it is simply - - -

GAUDRON J: But Dr Bell goes further than that, does he
not in terms of the evidence given by reference
to the chart. He goes further and says, "There
is a pattern of. consistency which is capable of
explanation not in terms of psychiatry" :and if
he does not put it in words as such he certainly
goes very close to saying, "It is explicable by
the accused having embarked on a deliberate
invention of conflicting stories to confuse
everybody associated with this case".

MR SLICER: I think Your Honour is referring to the passage

at the bottom of page 1414 which at line 25:

I suppose it would be best if I stated that
as far as I can see it, there is a pattern
of an evolution of an idea and this does
not have a psychiatric explanation that

I can see, but can be explained in other
ways.
I must admit, yes, that he could say that because - - -

(Continued on page 104)

C2T62/2/AC 103 5/10/88
Huish

GAUDRON J: What relationship does the saying of that have
to his opinion?

MR JACOBS:

Because he said that if - - -

GAUDRON_J:

It may be a conclusion from his op1n1on.

may be the only other available explanation, if
you accept his opinion, but what relationship does

it bear to the formation of the opinion?

MR JACOBS:	Well, his evidence was that if there there had been a psychosis there would not be a recall, so he
is saying that here there is a recall - and I
refer to~ese various documents and the evidence -
there is a recall, therefore that psychiatrically
rules out the possibility of a psychosis in this
case.
DAWSON J:	Well it is the reason, right or wrong, for his

forming the opinion which he did. Is that not so?

MR JACOBS:

You say that is the reason.

DAWSON J:

Yes. Right or wrong, that is the reason that he gave for forming his opinion.

MR JACOBS:

Yes, and I suggest that he has done that in a purely expert psychiatric way saying that something does not

measure up.

If there is a psychiatric explanation

these features have got to be present, or those

cannot be present here.

Here there is a recall that

just does not match up with psychiatry.

There is

another non-psychiatric explanation.

I hope that

has answered Your Honour's point.

You seem

to indicate that it has not.

DAWSON J:

No, no.

MR JACOBS:

It is not conceded at all that there was a need, or that Dr Bell was forced to add other matters later

on, as my learned friend has suggested.

I think

perhaps the example of February 28 is a good one in

that regard.

The date was put in but there was

nothing relevant that happened on that date.

I think perhaps, Your Honours, that is all I wanted

to say on the chart.

I think I have made fairly

clear the point I wanted to make as to the huge
mass of evidence and contradicting evidence in

this matter and I think that the chart fills in there.

WILSON J:

Thank you, Mr Jacobs.

Mr Slicer, is there anything

you would like to say in reply on the matters that
Mr Jacobs has touched on?

MR SLICER:

Yes, just to give one example, Your Honour, if

one takes April 2, the second, and takes that line

across, L for H, Linda, is L. In the record of

C2T63 / l /HS .	104	JACOBS	5/10/88
Huish .

interview H ought to be in Land entry ought to
be in L because the emergence of the real Huish
begins at Killing. It just depends ,how you analyse
the evidence whether you get an Lor an H, and, of
course, if Dresses becomes an L, if one goes to
page 222 of the transcript, trial two becomes an L
-- - as well, so then you have a consistent pattern of L
for Dressing for April 2, and trial two -
you can make those Ls and Hs - that is all I
want to say in reply, Your Honour.

WILSON J: I think your cross-examination of Dr Bell
rather demonstrated that, did it not, Mr Slicer?

MR SLICER: It was "as you choose you wi 11 cece i ve ~'
Your Honour, I have nothing in which to reply,
except we had prepared- my learned junior had
prepared a chart with numbers on it with a word
processor which had printed out the pages in the
transcript to which there is reference made to the

various Ls and Hs. Now we could grrange - - -

WILSON J: Perhaps leave it for the moment, Mr Slicer, and

if we think it would be helpful - - -

MR SLICER: It was just an aid to help you say which page
the Land the H, and so on, appeared on the evidence.

WILSON J:

I think the Court will retire again for a few moments to consider its course.
AT 3.45 PM SHORT ADJOURNMENT

C2T63/2/HS 105 5/10/88
Huish

UPON RESUMING AT 3.59 PM:

WILSON J: What I am about to say is the decision of a

majority of the Court.

This was a lengthy trial, focused almost

exclusively on a complex medical issue with
evidence being given by three psychiatrists and
one psychologist in support of a defence of
insanity and three psychiatrists on behalf of
the Crown in rebuttal of that defence.
The applicant's complaint as developed in

argument is confined to the evidence given by
one of the psychiatrists called on behalf of
the Crown. Although we have not heard counsel
for the Crown fully on this point, we are prepared
to assume that the manner in which that evidence
was given was objectionable in that at times
it took the form of advocacy rather than the
expression of an expert opinion based on stated
assumptions and at times it strayed beyond the
area of the witness' expertise.
However, the fact that the evidence went beyond matters within the psychiatrist.' s expertise was
canvassed in cross-examination and the trial
judge in his summing up made it clear that the
determination of all matters of fact was for

them and for them alone. No criticism has been
levelled at the summing up.
In all the circumstances, we are not persuaded

that the manner in which the rebuttal evidence
was led for the Crown gave rise to any miscarriage

of justice. Nor does the case involve any principle
of general importance that would warrant the
grant of special leave to appeal.

Special leave is therefore refused.
The Court will now adjourn.

AT 4.01 PM THE MATTER WAS ADJOURNED SINE DIE

C2T64/l/ND	106	5/10/88
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[1988] HCATrans 222

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Expert Evidence

Intention

Procedural Fairness

Sentencing

who had done the killing in an act of frenzy.	That was
the central thrust of the accused's story.

those propositions themselves are wrong.	I apologize
for that.	The first proposition is contained on

entirely fresh case on	sanity goes beyond what
section 381(4) says.	So that is the second
proposition.

'X"'	_ had· been passages put to the accused on
the second trial by the Crown.	So not too much

insanity.	That meant that they could call psychiatrists
to express their opinion that this man was sane.

MR SLICER:	Yes,	we are not troubled by that.
DAWSON J:	- - -	and you ..... criticize that.

MR SLICER:	They were told - no, no problems with that.
DAWSON J:	And the mere fact that a witness said, "I didn't

there is not a disorder".	We do not quibble with
that process.

WILSON J:	We had better let you get on with it.
MR SLICER:	But in any event, central is the credibility

what the doctor was doing.	He was interpreting
the answers.	He was interpreting what the accused
meant when he said "X, Y and Z".	He was interpreting

WILSON J:	I am sorry, which number?
MR SLICER:	1235 would be preferable.

WILSON J:	1235, thank you.
MR SLICER:	I will start there.	One of the central debates

the person being pursued.	And that was 1n issue
and the doctor says this:

So he starts off describing that.	He then goes
to 1236, line 12:

of a sexually aroused person".	I do not think that
is within the province of psych~~try.	You cannot

Dr Burges-Watson had used it. But that seemed	to emerge clearly enough in the discussion and
was going to be resolved?

opinionr', he is entitled to do that.	But he then
goes into 1241:

DEANE J:	But what if one then takes the further step and
reads his evidence as saying, "I think this person
is sane because, one, from my expert knowledge
that is not the way insane people speak. Two,
from my experience as an ordinary individual I
think that is the way sane people speak when they
are pretending to be insane''. Now you come back
to what has been put to you earlier and that is, cannot an expert supplement his expert knowledge
with non-expert practical experience for the purpose of reaching an expert result?

make that evaluation.	The tendency of that form
of expert evidence would be that the jury would

an edifice which says, "I don't believe X.	I
saw what you saw and I say that is acting.	I

GAUDRON J:	Yes, but on the earlier proposition which he has made that confabulation - surely he could give as
an expert that confabulation is a process which is
only engaged in by persons having organic brain
damage.
MR SLICER:	I do not think one would take it that far.

GAUDRON J:	Did this doctor not limit it, Dr Bell?
MR SLICER:	Dr Bell, at one stage - it is another part of the

guise and he addresses that.	He goes beyond
that on page 1416:

The doctor does not leave it there.	It was not just
a, shall I say, --one .....

in the heat of battle, shall we say.	But at 1273,
line 15, that:

reveals he had bad dreams.	It is not material, we
would say, which a psychiatrist -	·
_and besides	it could be factually wrong - he is

I was looking over here for book IV - book VI.	We
start the objection 1364.

the course of the trial the proof was given.	It
is not part of the appeal books.	I do not think

HIS HONOUR:	About whether who's lying or
not?
MR SLICER:	Huish. If the jury believes

WILSON J:	And the trial judge upheld your objection to
it going in as an exhibit?