J H S v The Queen - [1991] TASSC 110

108/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: J H S v R [1991] TASSC 110; A108/1991

PARTIES:  S, J H
  v
  R

FILE NO/S:  CCA 55/1991
DELIVERED ON:  19 December 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Crawford and Zeeman JJ

Judgment Number: A108/1991
Number of paragraphs: 102

Serial No 108/1991
List "A"
File No CCA 55/1991

J H S v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
CRAWFORD J
ZEEMAN J (Dissenting)
19 December 1991

Order of the Court

Appeal dismissed.

Serial No 108/1991
List "A"
File No CCA 55/1991

J H S v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
19 December 1991

This is an appeal against the appellant's conviction for murder.

Ground 2 of the notice of appeal was abandoned. The remaining grounds of appeal are as follows:

"(1)THAT the verdict of Guilty of Murder is unjust, unreasonable, unsafe and unsatisfactory, particularly having regard to
(a)the uncontradicted expert opinion evidence of Dr Ian Patrick Burges Watson MRC Psych, FRANZCP, that the Appellant suffered from a mental disorder, namely Organic Delusional Syndrome secondary to a temporal lobe dysrhythmia; that he was mentally disordered at the time he killed his mother; and that he was, on the 28th July 1990, under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist;
(b)the uncontradicted expert opinion evidence of Dr Ian Michael Sale, that the Appellant was Psychotic now; that he suffered from Schizophrenia; that he was Schizophrenic when he killed his mother; and that he was, on the 28th day of July 1990 afflicted with mental disease to such an extent to render him incapable of knowing that (the act) was one which he ought not do;
(c)the uncontradicted expert opinion evidence of Dr Christopher L. Williams BA (Hons), MPsych, PhD, MAPsS, Clinical Psychologist and Senior Lecturer in Clinical Psychology at the University of Tasmania that the Appellant suffered from a severe personality disorder; a Schizotypal personality disorder, a Schizoid personality disorder, borderline mental retardation; significant variation between verbal IQ and performance IQ; and that his findings were consistent with the Appellant suffering from Schizophrenia.
(d)the uncontradicted evidence of Mr Stephen Pinkus, Registered Psychologist of 15 years standing, and 10 years experience with the Child and Adolescent Service of the Mental Health Unit, State Department of Health, Clare House; that at 12½ years the Appellant was abnormal, and suffered from an uncontrollable temper;
(e)the uncontradicted evidence of [Miss R], Teacher, Registered Psychologist and Guidance Officer with the Education Department, that in 1989 she had occasion to Counsel the Appellant on 10 occasions, the Appellant's mother (the deceased) on two occasions, and that she had recommended further urgent treatment of the Appellant at the Mental Health Unit, Clare House, which said treatment was never undertaken; and,
(f)the fact that the Crown called no evidence in rebuttal of any of the Defence psychiatric and psychological expert evidence, nor did the Crown call its expert witness Dr Wilfred Lopes, Senior Forensic Psychiatrist, Department of Corrective Services, who had been in Court for virtually the entire Trial;

and that in view of the foregoing, a miscarriage of justice has occurred.
(3)THAT the Learned Trial Judge erred in Law by not permitting evidence to be led from the witness [Miss R] that in 1989 she held the opinion that the Appellant was at risk of losing control and causing grievous personal harm to some person in the future.
(4)THAT the Learned Trial Judge erred in Law by not permitting the Defence of provocation to be put to the Jury, having regard to the age of the Appellant.
(5)That the conduct and comments of the Learned Director of Public Prosecutions as particularised in paragraph 19 of the written submissions of the appellant dated 22 August 1991 occasioned a miscarriage of justice and the appellant's conviction for murder should be quashed."

There was little dispute about the essential facts. The appellant who was aged 17 years lived with his parents. On Saturday, 28 July 1990 the appellant's father was at [at work] and the appellant and his mother were alone in the house. The appellant opened a cupboard in the kitchen and the door fell on his head. The appellant went into the lounge room and according to a statement the appellant made to the police swore and "went crook" at his mother who "went crook" back at him and said that the appellant must have broken the cupboard on purpose. In an unsworn statement the appellant added a claim that his mother had "bugged the door so that it would fall on me on purpose". The appellant slammed or kicked the lounge room door whereupon the appellant's mother went to [the appellant's father's place of work] and asked the appellant's father to come to the house. The appellant's father told the appellant to have a bath and go to bed and behave himself and after staying a few minutes returned to [work]. The appellant had tea. In a handwritten statement made by the appellant at the invitation of the police the appellant described what then happened in these terms:

"I went out to the lounge room and said to my mother – you always gang up on me But you fight and hate each other Then she said why dont you kill me like She always did I Then said Shut up She slamed her book on The table and started shouting I shouted to She Then went to get up I pulled out The hunting knife and stabbed her in the stomich area I just went into a rage I went black for a few seconds I stabbed her repetibly She moved and struggled into The hall She scremed I cut into her thrat and stabed her again in The stomich area Then I stoped ran outside very frightend I ran up Then The Bush went up a few hills and gullies and stoped and had a rest once I got to [S] Place I didnt no what to do surrender to Police let Them shoot me or keep killing I was cold so I put my gloves on and walked down The lane to [S] and [M] Place I went to The door They came over I said you had Better call The Police I just stabed my mother [S] did Then [M] sat down and talked to me Then [S] did to Then rang ............ Then The Police came."

In an unsworn statement made at the trial the appellant described the same events in these terms:
"The Grim Reaper arrived about this time. He said 'I should kill her. You know she's Satan's daughter.' He said 'The Evil Spirits' – or said 'If you don't kill her we'll kill you.' I went back into the lounge–room. The Grim Reaper and the Evil Spirits came too. I started shouting at my mother. She shouted back. The Grim Reaper got around behind the chair she was sitting in and the Evil Spirits over to the side. They all kept saying to kill her. She said 'Well why don't you kill me then?' The argument got worse and the Grim Reaper said 'Go on, do it.' The Evil Spirits said 'Or we'll kill you.' So I pulled out the hunting knife and stabbed her. I got dizzy and went black for a few seconds. I went into a rage. I kept stabbing her and cut her throat. Then I moved into the hallway, struggled. I kept stabbing. The Grim Reaper came around behind and said to me 'Finish her off.' The Evil Spirits said 'Do it or we'll kill you.' I kept stabbing. Then I came out of my frenzy. The Grim Reaper said to me 'Remove the heart and stick the knife in it.' but I couldn't.
I went outside in panic. I went up hills and gullies. The Grim Reaper guided me. I had a short rest. I put my gloves on because my hands were cold. The Grim Reaper said 'You done a good job. I'll give you immortality, life after death, and telepathy powers to enable you to read people's minds.
I then went to [S's] place and told him and [M] what I did. I was careful not to mention the Grim Reaper or Evil Spirits because the Grim Reaper said not to, or to the police. The police are all evil agents of Satan and would kill me off. I told them I tried to kill their master's daughter. I told [S] and [M] I wasn't going to hurt anybody else. I told them about my parents arguing all the time and that they're always picking on me. They rang the police."

The persons referred to as [S] and [M] were Mr and Mrs [L] who lived about 2 kilometres away from the appellant's house. Mrs [L] gave evidence that early in the evening on 28 July 1990 the appellant came to the door of the house and said "you'd better call the police I've just murdered my mother." After some further conversation during which the appellant referred to the argument with his mother and said that his parents had been "picking on" him the appellant produced a knife in a sheath from under his jacket saying "Don't worry I'm not going to kill anybody else". Mrs [L's] evidence continued:

"I said to him 'Do you realise this is serious?' and he said to me 'I'll probably get the electric chair or they'll hang me' and I said to him that that wasn't the case in Australia, that's not the way you're treated if you're involved in this sort of a thing and I said, you know, that 'somebody will help you'
Yes. And did he then make any comment about his pastime, what he did with his spare time viewing videos? ... Yes, he did, he said to me 'People will think I murdered my mother because I watch violent videos. I did it because my parents were always bashing their heads against the wall.'"

Mrs [L] said that the appellant spoke calmly and did not express remorse or show anger. A pathologist examined the body of the deceased and found 38 stab or laceration wounds of which any one of at least seven could have caused the death.

Ground 1

Counsel for the appellant at the trial opened the defence case and informed the jury that the defence was insanity and that it would be put to the jury that the appellant "was not criminally responsible for his actions on 28 July 1990". The evidence called by the appellant in support of that defence comprised that of two psychiatrists, Dr Burges–Watson and Dr Sale, two clinical psychologists, Dr Williams and Dr Pinkus and a guidance officer and psychologist, Miss Raynor.

Dr Burges–Watson expressed the opinion about which he had "absolutely no doubt at all" that at the material time by reason of mental disorder – which expression he did not distinguish from "mental disease" – the appellant was acting on an impulse which he was in substance deprived of the power to resist. The mental disease from which he thought the appellant was suffering was a severe personality disorder and possibly an organic delusional syndrome arising out of temporal lobe epilepsy. Dr Burges–Watson did not think that the appellant was suffering from schizophrenia or that the appellant "did not know what he was doing at the time" or that he "did not know that what he was doing was wrong".

Dr Sale was also of the opinion that the appellant knew and understood the nature of the act which caused the death but he thought that the appellant was by reason of mental disease incapable of knowing that the act of killing was wrong on the ground of his opinion that the appellant was suffering from schizophrenia which induced in him the belief that his mother was the daughter of Satan or some evil entity. Dr Sale did not feel able to express an opinion about whether the appellant was acting under an impulse he was in substance deprived of the power to resist. Dr Sale thought it unlikely that the appellant was suffering from temporal lobe epilepsy.

Dr Williams gave evidence that on the basis of tests he administered and other materials he formed the view that the appellant was suffering from a schizotypal personality disorder.

There was no evidence sufficient to satisfy the requirements of s16(1)(a)(i) of the Criminal Code. Thus in order to uphold this ground this court would have to be satisfied that it was not reasonably open to the jury to conclude that they were not satisfied on the balance of probabilities that the act of killing the deceased was done by the appellant when he was suffering from a mental disease to such an extent as to render him incapable of knowing that that act was one which he ought not to do or that that act was done under an impulse which by reason of mental disease he was in substance deprived of any power to resist.

The Crown did not call any evidence to rebut the evidence called by the appellant upon this issue but of course that did not have the effect of adding any weight to the evidence called by the appellant or of reducing the extent of the burden of proof which the appellant carried.

Although the evidence of Dr Williams and the other supporting witnesses provided some support for the appellant's case it is clear that it would not have been open to the jury to acquit the appellant on the ground of insanity unless they accepted in substance the opinion evidence given by Dr Sale or Dr Burges–Watson or both.

For the following reasons I have reached the conclusion that it was reasonably open to the jury to conclude that they were not satisfied that all the ingredients of either form of the defence had been established on the balance of probabilities.

1Dr Burges–Watson's opinion that the appellant was suffering from temporal lobe epilepsy was based in part upon the results of an electroencephalogram test which was administered to the appellant. Although Dr Burges–Watson said that in some cases a diagnosis of temporal lobe epilepsy can be based solely on the results of such tests he acknowledged that in this case a significant factor in the formation of that opinion was also his understanding that the appellant had suffered from blackouts and dizzy spells. However there was no evidence upon which it would have been open to the jury to find that the appellant had suffered from blackouts or dizzy spells. Further in assessing Dr Burges–Watson's opinion the jury would have been entitled to give weight to Dr Sale's opinion that the result of the electroencephalogram test was not "really indicative" of temporal lobe epilepsy.
2Dr Burges–Watson's opinion in the alternative that the appellant was deprived of the power to resist the impulse to kill because of his severe personality disorder depended in part upon his appreciation of the impact which the events of the afternoon and evening leading up to the killing had had upon the appellant. It would have been reasonably open to the jury to conclude that even if the appellant was suffering from a severe personality disorder the events of the afternoon and evening did not affect the appellant to the extent that or in the way in which Dr Burges–Watson thought they had.
3Dr Sale accepted that a finding that at the time of the killing the appellant genuinely believed that the deceased was the daughter of Satan or was an evil entity was critical to his opinion that the appellant was suffering from schizophrenia to such an extent that he was rendered incapable of knowing that the act which resulted in the death of the deceased was one which he ought not to do. It was clearly open to the jury to find that the appellant did not have such a belief.
4In assessing Dr Sale's opinion the jury were entitled to give weight to Dr Burges–Watson's opinion that the appellant was not suffering from schizophrenia at the time of the killing.

I would reject this ground.

Ground 3

Miss Raynor was a registered psychologist who was employed by the Education Department as a guidance officer. In 1988 and 1989 Miss Raynor saw the appellant on about ten occasions after he had initially been referred to her by the principal of the school at which he was then a student. She gave evidence on a voir dire in these terms:

"You saw him on ten occasions? ... Roughly ten.
Yes. At any stage did you form any opinion concerning his attitude to violence?
WITNESS:      Yes.
What was – when did you form that opinion? ... Very early in the sessions that I had with him, probably in the first either one or two.
Did your review your opinion over the period of approximately 10 times that you saw him? ... No, I didn't change it.
Did you continue to consider your opinion? ... Yes.
And you didn't change that opinion? ... No.
What was your opinion as to his attitude to violence or matters relating to violence? ... I felt that there was concern that he may harm somebody at some time.
HIS HONOUR: Could you just say that again, I am sorry.
WITNESS:      I thought there was concern that he may at some time harm somebody.
MR CHOPPING (Resuming):   Did you in respect of the accused complete a guidance report? ... I did.
When did you complete that report? ... In May, 1989.
What was your conclusion in that report? ... I felt that he may harm somebody at some future time.
What were the words which you used at the conclusion of your report? ... My concluding paragraph was that 'It is difficult to determine how much of [J's] attitude is engineered so as to evoke a response from others. However, I do feel concerned that some time in the future [J] may lose control and inflict real harm on another person'."

The evidence which counsel for the appellant indicated to the trial judge that he sought to lead on the trial was that she "was concerned that he may in the future lose control and inflict real harm on another person" and that that statement should be regarded as the equivalent of an expression of her opinion that at some time in the future the appellant may lose control and inflict real harm on another person.

I agree with the view tentatively advanced by the learned trial judge that the witness was not shown to be qualified to express an opinion about the likelihood that the accused might lose control and cause harm to others. I also agree with respect with the view expressed by the learned trial judge that in any event a fair reading of the witness's evidence leads to the conclusion that she was not purporting to express any expert opinion at all but was merely "expressing her personal non expert" concern that the appellant might be provoked into hurting someone in the future. Indeed the witness herself expressly disclaimed the suggestion that she was expressing any expert opinion as to the existence or otherwise of a personality disorder or as to the appellant's future behaviour.

I would reject this ground.

Ground 4

The issue of provocation was not raised by counsel for the appellant in the course of his opening address to the jury but was made the subject of a submission made at the conclusion of the evidence. The matters which were advanced as constituting the provocation relied upon were as follows:

1The deceased "falsely and maliciously" accused the appellant of deliberately breaking the kitchen cupboard door and informed the accused's father that the appellant had deliberately broken the door with the "clear intention" that the appellant should be punished for something which he had not done and that he was in fact punished.
2The deceased called the appellant a little bastard.
3The deceased slammed a book on the table whilst shouting at the appellant.
4The deceased "incited or instigated" the appellant to kill her.

There was no evidence upon which it would have been open to the jury to find that the deceased had or that the appellant believed that the deceased had the states of mind or intention alleged in paragraph 1. There was no evidence that the appellant knew or thought that he was illegitimate. There was no evidence to show that the use of the word "bastard" which in the Australian idiom is often not regarded as offensive at all would have been peculiarly offensive or insulting to the appellant. Although presumably the deceased's invitation to the appellant to kill her was in a technical objective sense a wrongful act it could only remotely be regarded as a wrong directed to the appellant.

In my opinion even if some of the conduct relied upon could be characterised as a wrongful act or insult it was not capable of depriving an ordinary 17 year old in the appellant's situation of the power of self control and cause him to kill his mother.

I would reject this ground.

Ground 5

The matters relied upon were made the subject of three applications to the learned trial judge to discharge the jury. Of the three main matters relied upon the allegation that counsel for the Crown employed inflammatory and intemperate language and made improper or unfair observations about the contents of the appellant's unsworn statement in my view have no substance. The third matter arose as follows.

In the course of the examination in chief of Dr Burges–Watson the following questions were asked and answers were given:

"In his unsworn statement the accused said 'the grim reaper got around behind the chair she was sitting in and the evil spirits over to the side and they all kept saying "kill her". She said "well, why don't you kill me then". The argument got worse and the grim reaper said "go on, do it". The evil spirits said "or we'll kill you" so I pulled out the hunting knife and stabbed her. I got dizzy and went black for a few seconds. I went into a rage and then shortly afterwards, I said – after the repeated stabbing I then came out of my frenzy'. Does that give you any indication of the existence of a temporal lobe epilepsy at the time? ... Well, it raises a number of possibilities. It raises the possibility that he was deluded at the time. It also raises the possibility that he had a temporal lobe partial seizure at the time. It also leads onto the fact that after such an event, peoples memory of it is very seldom totally accurate and also that somebody in his position tries to make sense of what has happened and I suspect that is one of the things that has happened while he's been in the prison. He's been in the company, I understand, of one who I only know as [St] who is, I understand, a diagnosed schizophrenic who has also killed his mother and they obviously have a certain amount in common and some of the ideas he is now expressing are quite clearly picked up, in my opinion from his involvement with [St]. In other words, ideation by which I mean his thoughts and ideas has been contaminated by the company he's been keeping.
But you indicate there was – that indicates the possibility of a temporal lobe epilepsy episode on the 28th of July at the time of the killing of his mother? ... It certainly is a possibility.
And if there was a partial seizure at that time, your opinion is that he wouldn't know precisely what he was doing? ... Yes."

During cross examination Dr Burges–Watson also made another passing reference to his opinion that it was highly unlikely that at the time of the killing the appellant believed that his mother was Isis the daughter of Satan and that he thought that his statement or subsequent belief to that effect were "part of the contamination which has occurred".

During the cross examination of Dr Sale by counsel for the Crown the following exchanges took place:

"Now you acknowledge the fact that concern has been expressed by Dr Burges–Watson that there may have been contamination of the accused through contact with other prisoners in the hospital system at Risdon Prison? ... Yes, I'm aware of that.
And that that contamination would have occurred before you saw the accused in April of this year? ... Yes, I'm aware of that.
So that you run the risk of what you're seeing as a muddy pond rather than a settled pond? ... Yes.
And you said that your belief, your opinion I'm sorry is that the second limb of Section 16, that is that he couldn't understand – by reason of disease of the mind he was unable to understand – distinguish right from wrong when he killed his mother ... Yes.
Because he saw her as the daughter of Satan ... Yes.
The product of a union between Isas and Satan? ... Yes.
Now do you have any indication of when the accused first, as far as your expression of an opinion is concerned, said that he regarded his mother as the Daughter of Satan, the offspring of Isas? ... I suspect that his first mention of Isas may well have been to me.
Yes. Some eight and a half months after the – ... Yes.
Fatal stabbing of his mother.
HIS HONOUR: You're not directing question to the appellation are you?
MR BUGG:     I am. It's the first time that he had expressed his belief that his mother was the daughter of Satan.
HIS HONOUR: Right, not the appellation, you understand? When did you understand, by whatever name, he first referred to his mother as the daughter of Satan?
WITNESS:      I believe he referred to his mother as the daughter of Satan prior to seeing me but the first mention of the word Isas was in my assessment and I believe I know where that word might come from.
MR BUGG:     Yes, well in 1987 you examined [R G D] didn't you? ... That's correct.
And Mr [D] was on trial for the killing of his mother when he jumped on her a number of times and inflicted such injuries on her that she died from those injuries? ... That's right Mr [D] was found to be not guilty by reason of insanity because of very severe mental illness at the time.
A schizophrenic disorder? ... Probably schizophrenic, although at the time he was so acute it was impossible to make a specific diagnosis other than he was very psychotic.
You examined him? ... Yes, I did.
And you know that he expressed the firmly held belief that he was the Son of God? ... Well at one stage he believed that he was God.
MR BUGG:     Yes. But he expressed the belief that he was the son of God? ... Yes.
That he regarded his mother as the daughter of the Satanic princess, Isis? ... No, my recall––"

Counsel for the appellant then objected to this line of questioning on the ground that it was not relevant. The learned trial judge asked counsel for the Crown whether he was going to make the cross examination relevant and pointed out that for all the court knew [D] might be dead whereupon counsel continued the cross examination as follows:

"Mr [D] is still alive, is he not? ... Mr [D] is currently a patient, resident, I'm not sure of the correct word, at the prison hospital."

Exchanges then took place between counsel and the trial judge in the presence of the jury which included the following:
"I ask my friend in open court, does he claim to have evidence that Mr [D] has ever spoken to the accused in his life?
HIS HONOUR: Oh, well, just a moment. I'm not –
MR BUGG: I'm not going to make that claim here, Your Honour. Your Honour, what I will indicate to the court is, that I propose to now make the line of questioning of this witness, relevant, by showing this document to the witness, a copy of which was shown to the Defence last week: could the witness be shown that?"

Counsel for the Crown was then interrupted by the trial judge and the jury left the court room. Eventually counsel for the Crown indicated that he no longer proposed putting the document to the witness or proving it in any other way. Although at one stage counsel for the Crown indicated that he would be calling evidence to establish that the appellant and [D] may have come into contact in the end he abandoned any attempt to make the line of questioning relevant. The trial judge refused an application to discharge the jury on the ground that he could not at that stage determine whether or not the evidence which had been given was inadmissible and that in any event if it was inadmissible he could see no reason why justice could not be done by a direction from him. A further application to discharge the jury on the same grounds was made at the end of the case for the defence after it had become clear that the Crown would not be applying for leave to call evidence in rebuttal. The trial judge held that the evidence was inadmissible but refused the application on the ground that a careful direction would prevent a miscarriage of justice.

During his address to the jury counsel for the Crown in the course of "correcting some errors" which he submitted counsel for the appellant had made in the course of his address to the jury quoted counsel for the appellant as saying "there is no evidence of contamination at the prison hospital" and then commented:

"Rubbish. Their own witness, their expert, whose opinion they want you to rely upon, says 'In my opinion he's contaminated.' So forget that bit of his opinion because that's unreliable but take this piece of opinion because that's reliable. You can't have it both ways. They call someone into the box who sees him on a regular basis shortly after this incident, then sees him a couple of days before he gives evidence and says I've seen him. I've read that unsworn statement. In my opinion that's evidence of contamination. His thoughts have been contaminated. Now that's their own expert. We don't have to call evidence of contamination because their own expert has told you that. How long do you want to sit here and have witnesses brought in? Because that is the plain fact."

In the course of his summing up the learned trial judge said:

"With respect to the unsworn statement, it seemed to me that Doctor Burges–Watson didn't place much veracity on that unsworn statement and you will remember that he told you that he thought that the document was largely due to contamination with other prisoners in the prison hospital since his incarceration there in July last year and you will have to think about this. But while you are thinking about it I want to tell you one thing about that. Now, Doctor Sale also conceded the possibility that there had been contamination of the accused's mind and it is a matter that you will have to consider. It is not a matter about which there can be any direct evidence because you can't have direct evidence of what is in somebody's mind. You have Doctor Burges–Watson's opinion, who saw him on a number of occasions, that there had been contamination. But I expressly want to mention to you a piece of cross examination of Doctor Sale on this issue. You remember there was talk about a man, I think his name was [D], who had odd delusional beliefs, and Mr Hodgman quite properly took objection to that, saying 'well look, how do we know that he has ever spoken to the accused?' and indeed that is a perfectly proper thing to say. For all we know, [D] might be up at Royal Derwent Hospital and never seen the accused, for all we know he might be dead. I think actually Doctor Sale said he wasn't. But anyway, there's certainly no evidence that he spoke to the accused at all so you must put that right out of your mind, it's another good example of the evidence not being there, and that's why we stopped it, and that's why Mr Bugg said the next morning he wasn't going to pursue it. But I feel I should draw your attention specifically to it and when you are considering Doctor Burges–Watson's opinion as to whether there has been contamination, you mustn't take into account any of that evidence about this chap [D] because there is just no evidence of contact between the two."

However the learned trial judge did not expressly give a direction in similar terms about Dr Burges–Watson's evidence relating to [St].

In the course of making submissions to the court in the absence of the jury counsel for the Crown said that [D]'s nickname was ["St"] but no evidence to that effect was ever given to the jury.

In my opinion Dr Burges–Watson's evidence to the effect that someone in the position of the appellant is liable to attempt to make sense of what has happened by ideas he picks up from others was admissible as opinion evidence of the characteristics of mentally disturbed people. However his evidence about the appellant having had contact with [St] was inadmissible as hearsay although his opinion evidence about the effect which such a contact might have had upon the appellant was not. In the ordinary case that conclusion would lead to the further conclusion that prima facie the appellant has not had a trial according to law and therefore the appeal ought to be allowed unless the court considers that no substantial miscarriage of justice has actually occurred. However s113 of the Evidence Act 1910 provides that a conviction cannot be set aside on the ground of the improper admission of evidence adduced for the defence. Thus the question in this case is whether the appellant has affirmatively demonstrated that there was a miscarriage of justice on some ground other than that Dr Burges–Watson's evidence about the appellant having contact with [St] was not excluded.

In considering whether I am so satisfied I take into account in particular the following considerations:

1When commenting upon the bases of the psychiatric opinion the learned trial judge said in his summing up:
"As I am sure you have all become well aware now during the course of this trial, what was said out of court to a doctor, or anyone else, does not prove the truth of the fact stated. Someone has got to come here to this court and tell you that they personally saw or heard a certain thing and if you, having heard that evidence, are prepared to accept the witness and what they say, then the fact is established. So all these witnesses were called to tell you first hand, as it were, what they saw or heard so that you could compare it to what the experts say they relied upon in the formation of their opinions and if you think their reliance was well placed, that is that the evidence you've heard proves what the doctors were told were true, then it helps obviously to assess the weight you give that opinion. And conversely, if the psychiatric expert opinion relies upon facts which you are not satisfied existed, then that also affects the weight that you would give that psychiatric opinion."
On a number of occasions during the course of the examinations of Dr Burges–Watson and Dr Sale the trial judge in the presence of the jury raised with counsel the question of whether a particular fact referred to by the witness had been or was going to be proved. Those exchanges by themselves would have conveyed to the jury that facts referred to in statements made by an expert witness were not proved by that witness but had to be proved by the evidence of other witnesses and on at least three occasions during the course of Dr Burges–Watson's evidence the learned trial judge gave an express direction to that effect. As well during the course of the examination of another psychiatrist Dr Pargiter, who gave evidence about the deceased, the trial judge reminded the jury that he had previously told them that:
"witnesses can only give you direct evidence of what they see or hear or perceive by one of their senses, and as you know, we've stumbled across a problem arising out of that, from time to time."
It is also relevant to note that during the cross examination of Dr Burges–Watson the trial judge intervened and directed the jury that "just because Mr Bugg asks a question that's not evidence. The question is never evidence it's the answer from the witness box which is evidence".
In my view the jury would have been left in no doubt that they were only entitled to act upon assertions of fact made by expert witnesses when they were satisfied that those facts had been proved by direct evidence.
2Even had the trial judge specifically directed the jury that they should ignore Dr Burges–Watson's evidence about [St] the jury would still have had before them Dr Burges–Watson's opinion that the appellant's thinking or statements had been contaminated and Dr Sale's concession that such contamination might have occurred.
3Counsel for the appellant at the trial said that he had no objection to Dr Sale being cross examined about his opinion as to the possibility of contamination his objection being confined to the leading of evidence about the appellant's association with [D]. At no stage did counsel object to the admissibility of Dr Burges–Watson's evidence about [St] or about the possibility of contamination nor did he submit to the trial judge that he should direct the jury to ignore that evidence. At the conclusion of the summing up counsel for the appellant made no submissions to the effect that the trial judge should give the jury a direction about Dr Burges–Watson's reference to [St] similar to that which he had given about Dr Sale's reference to [D] notwithstanding that at that stage counsel did make submissions about other aspects of the evidence of Dr Burges–Watson and Dr Sale.

I am not affirmatively persuaded that the appellant has shown that a miscarriage of justice occurred on any ground other than a ground upon which the appellant is precluded from relying by virtue of s113 of the Evidence Act 1910.

In my opinion the appeal should be dismissed.
File No CCA 55/1991

J H S v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
19 December 1991

The appellant was convicted of murder having unsuccessfully raised the defence of insanity. There was no doubt whatever that he killed his mother on the afternoon of 28 July 1990. He stabbed her at least thirty–eight times with a knife and cut her throat.

Ground 1

"(1)THAT the verdict of Guilty of Murder is unjust, unreasonable, unsafe and unsatisfactory, particularly having regard to
(a)the uncontradicted expert opinion evidence of Dr Ian Patrick Burges Watson MRC Psych, FRANZCP, that the Appellant suffered from a mental disorder, namely Organic Delusional Syndrome secondary to a temporal lobe dysrhythmia; that he was mentally disordered at the time he killed his mother; and that he was, on the 28th July 1990, under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist;
(b)the uncontradicted expert opinion evidence of Dr Ian Michael Sale, that the Appellant was Psychotic now; that he suffered from Schizophrenia; that he was Schizophrenic when he killed his mother; and that he was, on the 28th of July 1990 afflicted with mental disease to such an extent to render him incapable of knowing that (the act) was one which he ought not do;
(c)the uncontradicted expert opinion evidence of Dr Christopher L. Williams BA(Hons), MPsych, PhD, MAPsS, Clinical Psychologist and Senior Lecturer in Clinical Psychology at the University of Tasmania that the Appellant suffered from a severe personality disorder; a Schizotypal personality disorder; a Schizoid personality disorder; borderline mental retardation; significant variation between verbal IQ and performance IQ; and that his findings were consistent with the Appellant suffering from Schizophrenia.
(d)the uncontradicted evidence of Mr Stephen Pinkus, Registered Psychologist of 15 years standing, and 10 years experience with the Child and Adolescent Service of the Mental Health Unit, State Department of Health, Clare House; that at 12½ years the Appellant was abnormal, and suffered from an uncontrollable temper;
(e)the uncontradicted evidence of [Miss R], Teacher, Registered Psychologist and Guidance Officer with the Education Department, that in 1989 she had occasion to Counsel the Appellant on 10 occasions, the appellant's mother (the deceased) on two occasions, and that she had recommended further urgent treatment of the Appellant at the Mental Health Unit, Clare House, which said treatment was never undertaken; and,
(f)the fact that the Crown called no evidence in rebuttal of any of the Defence psychiatric and psychological expert evidence, nor did the Crown call its expert witness Dr Wilfred Lopes, Senior Forensic Psychiatrist, Department of Corrective Services, who had been in Court for virtually the entire Trial:

and that in view of the foregoing, a miscarriage of justice has occurred."

By this ground the appellant has sought to persuade this Court that the verdict is unsustainable on the evidence and that the jury should have found him not guilty on the ground that he was insane at the time of his attack on his mother. He carried the onus of proving that this was so on the balance of probabilities. If he failed to so prove it his conviction for murder was inevitable. Usually the ground of appeal that a verdict was unsafe and unsatisfactory is directed against a verdict of guilty and its basis is that a reasonable jury should have entertained a reasonable doubt as to the guilt of the accused. Chamberlain v The Queen (1984) 153 CLR 521; Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432. But in this case the appellant can only succeed with the ground if he is able to persuade this Court that a reasonable jury should have found the him not guilty on the ground of insanity. To put it another way, it is for the Court to decide whether, on the evidence, it was open to a reasonable jury to conclude that it was not satisfied on the balance of probabilities that he was not guilty on the ground of insanity. Chidiac v The Queen (supra). He therefore carries a much heavier burden before this Court than he did before the jury.

It is immediately apparent from paras(a) and (b) of this ground of appeal that in fact the evidence of Dr Burges–Watson was not uncontradicted and the evidence of Dr Sale was not uncontradicted. They contradicted one another, for they did not agree on the nature of the mental disease with which the appellant may have been afflicted nor on its effect on his state of mind. If the evidence of Dr Burges–Watson established what is contained in para(a) then the defence which would have been proven was, pursuant to the Criminal Code, s16(1)(b), that the appellant's acts were "done ... under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist". If on the other hand the evidence of Dr Sale established what is contained in para(b) then the defence which would have been proven was, pursuant to s16(1)(a)(ii), that his acts were done by him "when afflicted with mental disease to such an extent as to render him incapable of ... knowing that such act was one which he ought not to do", and the mental disease was different than that favoured by Dr Burges–Watson. It is of course conceivable that in a particular case a jury might be satisfied that the defence of insanity has been established upon the combined basis of two contradictory expert opinions. The jury might reject one or be persuaded that one or other opinion must be correct without deciding which. Alternatively some jurors might accept one of the opinions and the other jurors might accept the contradictory opinion and all agree that the defence of insanity has been established, but not unanimously for the same reason. That such different routes to the establishment of the defence could be followed by a jury is possible and might be proper in an appropriate case. But it is a difficult road for the appellant to travel when he seeks to persuade an appellate court that it should determine that the members of the hypothetical reasonable jury must have followed one of those routes and accepted that the defence had been made out despite the contradictory opinions of the two principal expert witnesses. Neither of those two witnesses expressed the view that if his opinion was wrong then the opinion of the other was likely to be correct. Put simply, the view each expressed was that his own opinion was right and the opinion of the other was wrong. If the jury found no reason to accept the opinion of one of those witnesses in preference to the other, and it was a matter entirely for the jury, one of the obvious answers open to the jury was that neither of the opinions had been proved correct on the balance of probabilities and the defence had accordingly failed.

The opinion of Dr Burges–Watson was that at the time of the killing the appellant suffered from a mental disorder which could be labelled as organic delusional syndrome secondary to a temporal lobe dysrhythmia. The label organic delusional syndrome describes any delusional disability where there is an organic cause due to some brain pathology. The temporal lobe dysrhythmia was consistent with temporal lobe epilepsy. Dr Burges–Watson at one stage in his evidence expressed his diagnosis as having a high degree of probability but later said that it was "my best guess if you like". His opinion was primarily based on information he had been given, much of it by the appellant, which suggested to him that prior to and at the time of the events of 28 July 1990 the appellant suffered from temporal lobe epilepsy. That information indicated characteristic symptoms such as rage reactions, flash–backs (scenic experiences of previous events in the person's life), dizzy spells, periods of shaky vision and periods of a few seconds of everything going "black and blurry". Dr Burges–Watson also found support in the result of an electro–encephalogram performed in March 1991 which revealed continuous theta delta activity over the left temporal region during hyperventilation and which was reported by a neurophysiologist as a left temporal focal disturbance. He conceded that the electro–encephalogram result however was not by itself diagnostic. He could put it no higher than that it was consistent with temporal lobe epilepsy.

There was no evidence before the jury establishing some of the factual assumptions upon which Dr Burges–Watson's opinion was based. In particular, he said that the information he had revealed that the appellant had a past history of blackouts. If the evidence had established this it would have been evidence of some weight suggestive of temporal lobe epilepsy. But there was in fact no evidence before the jury which should have persuaded them that there was in fact such a history and they were entitled to have considerable reservations that the validity of the doctor's opinion had been made out.

Without the opinion of Dr Sale, it was clearly open to the jury to reject the opinion of Dr Burges–Watson. There was more reason to do so once Dr Sale had given evidence for the appellant because he regarded temporal lobe epilepsy "as only an outside chance". He said that "to make that diagnosis of temporal lobe epilepsy, one would want other clinical features such as for example that he has had known fits. I'm aware that there is a history suggestive of blackouts but to my knowledge of those, they're not consistent with actual fits, so I would regard epilepsy as very much long odds."

Dr Sale's opinion was that the appellant was probably suffering from schizophrenia when he killed his mother. He based that opinion on information provided to him by the appellant in one 45 – 50 minute consultation over eight months after the events and upon information to him from other sources. He concluded that as a result of the schizophrenia, the appellant had acted under the influence of firmly held delusional beliefs such as that his mother was the daughter of Satan, that the Grim Reaper was his protective being and that he was instructed by the Grim Reaper to kill the daughter of Satan. In such a state of delusion the appellant would not have known that killing his mother was not an act which he ought not to do. Dr Sale accepted that Dr Burges–Watson should have been in a better position to assess whether the appellant was suffering from schizophrenia, taking into account that Dr Burges–Watson first saw the appellant ten days after the events (and on several other dates prior to Dr Sale first seeing him). Dr Burges–Watson, of course, was of the opinion that the appellant was not showing signs of schizophrenia when he first saw him and in that regard he was influenced also by what the appellant had told Mr and Mrs [L], who were the first people to whom the appellant spoke shortly after the homicide. He told them nothing which indicated delusions of the kind claimed at the trial. Although the appellant's explanation for this was that he had been instructed by the Grim Reaper not to mention him, and Dr Sale had some favour for such an explanation, the jury was entitled to be sceptical.

I have no hesitation in concluding that a reasonable jury had every reason to consider that the evidence did not establish sufficient facts to support either doctor's opinion. Further and in any event, their conflicting opinions would also have entitled a reasonable jury to reject both upon the basis that neither was accepted.

The evidence of Dr Williams, Mr Pinkus and [Miss R] could at best only be used to support the evidence of the psychiatrists. But none of it had sufficient content or weight to bolster the psychiatrists' opinions to the extent that it can be said that a reasonable jury must have accepted one or other of those opinions.

The decision by the Crown not to call psychiatric or psychological evidence in rebuttal cannot help the appellant. The onus was on him to establish his defence and not on the Crown to disprove it. Failure by a party to call a witness may in some cases, in accordance with the so–called rule in Jones v Dunkel (1959) 101 CLR 298, lead to an inference that the uncalled evidence would not have assisted his case and it may allow the jury to more readily accept the witnesses called by the other party. But it does not follow that the jury is obliged to accept those witnesses. I have considerable doubts that the rule can be applied to a case such as this in any event. Further, the inherent conflict between the opinions of the appellant's psychiatrists is so significant that the jury was entitled to conclude that because of it the defence case had not been made out, regardless of the failure of the Crown to call rebuttal evidence.

Ground 2

This was abandoned.

Ground 3

"That the Learned Trial Judge erred in Law by not permitting evidence to be led from the witness [Miss R] that in 1989 she held the opinion that the Appellant was at risk of losing control and causing grievous personal harm to some person in the future."

[Miss R] was a guidance officer with the Education Department. She was a registered psychologist and had worked as a teacher. Objection was taken by the Crown to some evidence it was proposed to call from her and so evidence was received on the voire dire. [Miss R] said that the appellant attended the [school] and the principal had referred him to her. She saw him on about ten occasions over a period of about twelve months in 1988 and 1989. She was aware of the concerns of staff about his interest in violence. She also read some of his school work which included essays containing passages of considerable and shocking violence. Very early in her sessions she formed the opinion "that there was concern that he may harm somebody at some time". In May 1989 she completed a guidance report in the concluding paragraph of which she expressed her opinion as follows:

"It is difficult to determine how much of [J's] attitude is engineered so as to evoke a response from others. However, I do feel concerned that sometime in the future [J] may lose control and inflict real harm on another person."

Counsel for the appellant wished to tender the report on the trial. In cross–examination on the voire dire [Miss R] stated that she was not expressing an opinion that the appellant had some psychiatric disorder, a personality disorder or a mental disorder. Her opinion was an expression of concern. The learned trial judge was correct in ruling that the evidence of [Miss R]'s opinion was inadmissible. I do not deal with his view that she lacked sufficient expertise to express it, but I agree with him that she was not expressing any expert opinion at all, but instead her personal, non–expert opinion based on her general experience of life, and not as a result of the application of any special field of expertise. On this basis her opinion was inadmissible.

Ground 4

"That the Learned Trial Judge erred in Law by not permitting the Defence of provocation to be put to the Jury, having regard to the age of the Appellant."

The Criminal Code s160(1) provides that culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation. There was ample evidence that the appellant acted in the heat of passion. In subs.(2) provocation is defined as any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self–control, if the offender acts upon it on the sudden and before there has been time for his passion to cool. By virtue of subs.(3) the question whether any matter alleged is, or is not, capable of constituting provocation is a matter of law for the determination of the trial judge. The matters so alleged on behalf of the appellant were:

1The deceased falsely and maliciously accused the appellant of deliberately breaking the cupboard door.
2The deceased falsely and maliciously informed the appellant's father that he had deliberately broken the kitchen cupboard, notwithstanding his protestations of innocence, with the clear intention that he be punished for something which he had not done and which she well knew he had not done.
3The deceased caused the appellant's father to punish him by sending him to his room and by informing him, without qualification, that he was "not going anywhere any more" and "you can't have your way I want mine."
4The deceased called the appellant "little bastard". The appellant was illegitimate when born.
5The deceased slammed a book on the table and shouted at the appellant.
6The deceased said to the appellant "Why don't you kill me?" and "Well, why don't you kill me then?"

The learned trial judge refused to leave the issue of provocation to the jury. I comment that there was insufficient evidence capable of establishing all of the matters relied upon by the appellant's counsel. But notwithstanding, the alleged wrongful acts or insults were not as a matter of law capable of constituting provocation. The only characteristic or attribute of an accused which may be attributed to the "ordinary person" for the purposes of the objective test of s160(2) is that of age. In Stingel v The Queen (1990) 171 CLR 312 at 331–332 the High Court stated the objective test:
"In the light of what has been written above, the effect of the threshold objective test of s160(2) can be stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self–control within the limits of what is ordinary (for a person of that age), to do what the accused did. A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person of s160(2) into the position of the accused at the time of the killing. There is nothing objectionable about that so long as it is remembered that the reference to the ordinary person of s160 is not a reference to a person of precisely identifiable powers of self–control but a reference to a person with powers of self–control within the range or limits of what is 'ordinary' for a person of the relevant age. In that regard, it must be borne in mind that s160(2) refers to 'an ordinary person' and not to 'the average person'.
A projection of the 'ordinary person' of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty in a case where the existence of some attribute or characteristic of the accused is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self–control of any person possessed of it. As Cosgrove J pointed out in Jeffrey v The Queen [1982] Tas R 199 at p233, self–control tends to reflect many characteristics and 'the degree of self–control possessed by a person may vary according to the specific qualities of his character'. If, for example, a person is obsessively jealous or extraordinarily excitable and pugnacious, his powers of self–control are hardly likely to be within the range which might properly be rewarded as 'ordinary' (cf Reg v Fricker (1986) 42 SASR at p445). In a case where it is necessary to take some such characteristic or attribute into account for the purpose of identifying the content or gravity of the wrongful act or insult (eg a case of a grave insult centred upon that characteristic or attribute), the objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of self–control of a hypothetical 'ordinary person' who is unaffected by that extraordinary attribute or characteristic. In other words, the fact that the particular accused lacks the power of self–control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self–control of a hypothetical 'ordinary person'."
The alleged conduct on the part of the appellant's mother was not capable of depriving an ordinary seventeen year old person to do what the appellant did.

Ground 5

"That the conduct and comments of the Learned Director of Public Prosecutions as particularized in paragraph 19 of the written submissions of the Appellant dated 22 August 1991 occasioned a miscarriage of justice and that the Appellant's conviction for Murder should be quashed."

By the end of the hearing of the appeal other issues had been raised and argued, with the concurrence of the respondent, which had the effect of considerably expanding the grounds of appeal without appropriate amendment of the notice of appeal. It is regrettable that this occurred and it should not usually be countenanced by this Court.

The ground particularly relates to the opinion of Dr Sale. The appellant read his unsworn statement to the court in the following terms:
"I came home, went into the kitchen to get tea. I went to the cupboard to get some sauce. When I went to open it it fell down and hit me on the head. I went and swore at my mother, she bugged the door so it would fall on me on purpose. She said 'You must have done it on purpose.' I kicked the loungeroom door. My head was sore. She got up and went over to the pub to get Dad. I followed. He came over and looked up at the door. My mother told him about my slamming the door and my behaviour. He got angry and told me to go and have a bath and go to bed. Then he said to come and eat tea.
The Grim Reaper arrived about this time. He said 'I should kill her. You know she's Satan's daughter'. He said 'The Evil Spirits' – or said 'If you don't kill her we'll kill you.' I went back into the loungeroom. The Grim Reaper and the Evil Spirits came too. I started shouting at my mother. She shouted back. The Grim Reaper got around behind the chair she was sitting in and the Evil Spirits over to the side. They all kept saying to kill her. She said 'Well why don't you kill me then?' The argument got worse and the Grim Reaper said 'Go on, do it.' The Evil Spirits said 'Or we'll kill you.' So I pulled out the hunting knife and stabbed her. I got dizzy and went black for a few seconds. I went into a rage. I kept stabbing her and cut her throat. Then I moved into the hallway, struggled. I kept stabbing. The Grim Reaper came around behind and said to me 'Finish her off.' The Evil Spirits said 'Do it or we'll kill you.' I kept stabbing. Then I came out of my frenzy. The Grim Reaper said to me 'Remove the heart and stick the knife in it' but I couldn't.
I went outside in a panic. I went up hills and gullies. The Grim Reaper guided me. I had a short rest. I put my gloves on because my hands were cold. The Grim Reaper said 'You done a good job. I'll give you immortality, life after death, and telepathy powers to enable you to read people's minds.'
I then went to [S's] place and told him and [M] what I did. I was careful not to mention the Grim Reaper or Evil Spirits because the Grim Reaper said not to, or to the police. The police are all evil agents of Satan and would kill me off. I told them I tried to kill their master's daughter. I told [S] and [M] I wasn't going to hurt anybody else. I told them about my parents arguing all the time and that they're always picking on me: They rang the police.
They came and took me away to the Hilltop. They took me then to the police station. I was very careful what I said. The Grim Reaper told me not to mention him so that I didn't give – so then I give them a short statement on what happened. I co–operated with police best I could. I didn't want to jeopardize my immortality, my special powers from the Grim Reaper or be killed by the Evil Spirits. Satan was possessing me at the time and the Evil Spirits in me. I first met the Grim Reaper when I was about five or six, after a fight with my mother. She hit me and put me in my room. The Grim Reaper came in then. As I got older he explained more things to me. He is very powerful as he's Satan's right hand man. The taker of body is destroyer of souls. He has also given me power to have out of the body experiences. I sleep with a girl's soul every night. The Grim Reaper is a soul. He's been dead for thousands of years. He was born in Transylvania, that's the dark country. I will be there in Armageddon with him to fight against Satan's evil beasts. The power of the full moon and lightning will bring us both back from the depths of hell. He will kill me first. He is responsible for the curse of Aids. The plague was his warning, now Aids is the beginning of the end. When there's no more room in hell, the dead will rule the earth.
I was about twelve or thirteen when the Grim Reaper first told me that my mother was Satan's daughter. Back in 1842 Satan's daughter was sentenced to death. They drowned her in black pond and put a cross in the water to crucifix her, to seal her away, but someone removed the cross and now she came back and possessed my mother. While the crucifix was on, she could not possess anybody and could only move about at night.
The Grim Reaper has introduced me to many other spirits and gods like Thunderfire and Odwin, the Viking god, and Thunderfire the Indian god. The Grim Reaper is the most powerful next to Satan and top of all god.
All the evils spirits and demons are out to get me."

It was the opinion of Dr Sale, as I stated earlier when dealing with ground 1, that the appellant had killed his mother under the influence of firmly held delusional beliefs such as that his mother was the daughter of Satan, that the Grim Reaper was his protective being and that he was instructed by the Grim Reaper to kill the daughter of Satan.

After killing his mother the appellant walked to the nearby home of friends, [S and M L]. The evidence of Mrs [L] was as follows. She said to the appellant: "What's up?" He said: "You'd better call the police. I've just murdered my mother." She got him to sit down and gave him a glass of water. She asked him for detail and he said that he had hit his head on a cupboard and had an argument with his mother. She called his father and they were picking on him. His father did not know what had happened. Mrs [L] then said that he opened his jacket and handed to her a knife in a cover saying: "Don't worry, I'm not going to kill anybody else." There was blood on the knife. She said to him: "Do you realize this is serious?" He then said to her: "I'll probably get the electric chair or they'll hang me." She said that was not the case in Australia and that: "Somebody will help you." The appellant then said: "People will think I murdered my mother because I watch violent videos. I did it because my parents were always bashing their heads against the wall." The police were called and arrived shortly afterwards.

Mrs [L] said that the appellant had been calm without much emotion on his face. He had not expressed any remorse or concern, nor anger, and did not appear to cry.

The appellant made a hand–written statement for the police in the following terms:

"I was at home and I felt hungry I went to the cupBord and went to open it it fell down and hit me fear in the head it hurt qute a bit and upset me so I went into the loungeroom and went crok at my mother she went crook back and said I must have done it on purpose I slamed the loungeroom door and my mother swor at me and went over to the puB to get my father I followed he came over and looked at the door my mother also told him about me slaming the loungeroom door, he got angry and swor at me and said have a bath and go to Bed and then said to come and eat tea. I did that he then said your not going anywere anymore and you carnt have your way I want myn he went I went out to the loungeroom and said to my mother you always gang up on me But you fight and hate each other Then she said why don't you kill me like she always did I then said shutup she slamed her book on the table and started shouting I shouted to she then went to get up I pulled out a Hunting knife and stabbed her in the stomich area I just went into a rage I went black for a few seconds I stabbed her repetibly She moved and struggled in to the hall She scremed I cut into her thrat and stabed her again in the stomich area then I stoped ran outside very frightend I ran up then Bush went up a few hills and gullies and stoped and had a rest once I got to [S's] place I didnt no what to do surrender to police let them shoot me or keep killing I was cold so I put my gloves on and walked down the lane to [S] and [M's] place I went to the door they came over I said you had Better call the police I just stabed my mother [S] did then [M] sat down and talked to me then [S] did to then rang a lawyer the police came. [J S]."

Dr Burges–Watson gave evidence of conversations he had with the appellant. He saw him on four occasions in August 1990, once in September 1990 and on other occasions in 1991. On the first three occasions the doctor did not seek from him detailed information about the circumstances of his killing his mother. On the first occasion the appellant made reference to arguments he had had with his mother and to her saying both to him and to his father during rows: "Why don't you kill me?" He said he had often felt like killing her but had always been able to keep himself from doing so. Dr Burges–Watson did not then, or later, consider that the appellant was schizophrenic or subject to delusional beliefs. However, on that first occasion the appellant had told him of fantasies he had had about school and killing people at school who pushed him around, and he said: "I got the Grim Reaper on to them, just the bad ones. I guess I was the Grim Reaper. I became the Grim Reaper, Satan's right hand man. I was immortal, I could not be killed and every full moon I would kill. The power from the moon and electricity from lightning kill and bring me back from the dead."

On the fourth interview, Dr Burges–Watson elicited from the appellant details of the killing of his mother. He related the incident with the cupboard door and the ensuing argument with his mother which involved his father. Included was: "I was angry with the cupboard door. She yelled and screamed back and she said I'd done it on purpose. I think I kicked or head–butted the door and then she got up and went over to get me father." He described the worsening argument with his mother. Dr Burges–Watson's evidence later continued:

"And I said, 'I hate you' and she said, 'Then why don't you kill me then?' I said, 'Because I can't be bothered.' She said, 'Get in there and have your bath.' And he said, 'I don't want to' all yelling and screaming at this time. I shouted and swore and banged me head on the door again, I think. That's when she slammed the book' and he demonstrated her slamming the book on the table. 'And that's when I got the hunting knife and killed her. She was going to get Dad again and bash into me and No, Sir, I was not going to take any more of this. That's when I have one of these dizzy spells and my eyes blur and vision isn't very cool' and by this stage he was white, his teeth were gnashed ..... he was a picture of horror ...... 'So I reached in my pocket, pulled out my hunting knife.' At that time I noted he sat with a clenched right fist and his left hand was holding his belt. 'And I stabbed her' and there was a pause 'in the guts, about three or four times I think, not sure, she screamed and said "Joseph, no" and I just stabbing her, and she struggled and she went on to the floor and struggled to the hallway and I was still stabbing her and she screamed out "[J]" so I cut her throat' and I then have in brackets (eyes now wild). He went on 'I cut her throat to stop her from screaming, she fell back onto the floor still moaning so I kept stabbing her in the guts, I was well out of control, somebody else had taken over. I cut her throat again.' At that stage I asked him how he was feeling and he said 'like its happening.' Then almost immediately he said 'Then I must just have stopped, I looked at the knife, blood all over the knife and me hands. Looked at her, there was a funny noise' which he demonstrated. At this stage I noted that there was a vacant look in his eyes and he was even paler than usual. He went on 'It was sort of like I returned from another world. I put the knife back in my pouch.' I asked him a question about that and he said that 'They had been there all the time, all that day.'"

The appellant then told Dr Burges–Watson about going to his friend's place. The doctor felt that he had gone far enough and he then asked the appellant some fairly mundane questions about his background and childhood to try and get things back under control, and the appellant later on in the same interview talked about his fantasies concerning the Grim Reaper. But the appellant did not directly relate the Grim Reaper to the killing of his mother.

When the jury came to consider the opinion of Dr Sale, of vital importance was the question whether or not the appellant killed his mother under a delusional belief that he did so, as claimed in his unsworn statement, on the instructions of the Grim Reaper or because of threats from evil spirits, believing at that time that his mother was the daughter of Satan. He had not claimed such things to Dr Burges–Watson. On being referred to the contents of the unsworn statement by the appellant's junior counsel in examination–in–chief, Dr Burges–Watson gave the following evidence:

"Well, it raises a number of possibilities. It raises the possibility that he was deluded at the time. It also raises the possibility that he had a temporal lobe partial seizure at the time. It also leads onto the fact that after such an event, people's memory of it is very seldom totally accurate and also that somebody in his position tries to make sense of what has happened and I suspect that is one of the things that has happened while he's been in the prison. He's been in the company, I understand, of one who I only know as [St] who is, I understand, a diagnosed schizophrenic who has also killed his mother and they obviously have a certain amount in common and some of the ideas he is now expressing are quite clearly picked up, in my opinion from his involvement with [St]. In other words, ideation by which I mean his thoughts and ideas has been contaminated by the company he's been keeping."

In cross–examination Dr Burges–Watson said that he did not believe that the appellant was showing signs of schizophrenia when he first saw him. One of his reasons for forming this opinion was the content of what the appellant had told Mr and Mrs [L] within about half an hour of killing his mother. The doctor said that it was possible that the emotional experience of killing his mother, being charged with her murder and being remanded in custody to await trial, might be enough to make him schizophrenic by the time of the trial. He added that fantasies can develop to the level of delusional intensity. He thought that he had developed a rapport with the appellant which was unusual in the case of a person suffering from schizophrenia. The doctor was also influenced by the fact that the appellant did not tell him that his hand was guided by the Grim Reaper as claimed in the unsworn statement, and he commented that the appellant was impressionable and suggestible and likely to be influenced by people with whom he had been in regular daily contact. Still later in his evidence, Dr Burges–Watson said that the diagnosis of schizophrenia was difficult because of contamination by other prisoners in the prison hospital. Later again, the doctor commented that he thought it highly unlikely that at the time of the killing the appellant did so because he believed that he was the Grim Reaper and that he thought that his mother was Isis, the daughter of Satan. Particularly, as to the latter aspect he thought that its expression by the appellant came from "the contamination that has occurred". In re–examination Dr Burges–Watson said that the accused only first mentioned Isis to him on the Friday prior to giving evidence and that the appellant had not previously indicated to him that his mother was the daughter of Satan.

I next turn to the evidence of Dr Sale. He, as I have said, examined the appellant on 8 April 1991, over eight months after the homicide, on 8 April 1991 and then only for 45–50 minutes. On that occasion the appellant told him of what Dr Sale thought were delusional beliefs concerning the Grim Reaper, the Raincoat Man and a number of un–named evil spirits. The appellant said that he could see and hear the Grim Reaper and had been in communication with him by speech and thought for many years. The Grim Reaper was largely on his side. The Raincoat Man appeared to be a hostile and largely malevolent being who occasionally appeared in the appellant's environment as through the windows of his cell. The Raincoat Man's intentions towards him were nefarious and he had been contracted by the appellant's mother to kill him. He told Dr Sale that his mother was born of a union between Satan and Isis. He told Dr Sale about occasions (there was no other evidence about them) when he tried to be a chicken and had climbed trees and at times had inserted tail feathers into his rectum so as to appear like a chicken. Dr Sale was prepared to believe what the appellant had told him and his conclusion was that he was a schizophrenic who had killed his mother under the influence of delusional beliefs that she was the daughter of Satan. Abnormal beliefs were a near essential symptom for a diagnosis of schizophrenia.

The suggestion that the appellant's mind had been contaminated by other persons was, of course, first raised by the appellant's own witness, Dr Burges–Watson, in his examination–in–chief. The Director of Public Prosecutions took the subject up with Dr Sale in his cross–examination. The following occurred:

"Now you acknowledge the fact that concern has been expressed by Dr Burges–Watson that there may have been contamination of the accused through contact with other prisoners in the hospital system at Risdon Prison? ...Yes, I'm aware of that.
And that that contamination would have occurred before you saw the accused in April this year? ... Yes, I'm aware of that.
So that you run the risk of what you're seeing as a muddy pond rather than a settled pond? ... Yes.
And you said that your beliefs, your opinion I'm sorry is that the second limb of Section 16, that is that he couldn't understand – by reason of disease of the mind he was unable to understand – distinguish right from wrong when he killed his mother? .... Yes.
Because he saw her as the daughter of Satan? ... Yes.
The product of a union between Isis and Satan? .... Yes.
Now do you have any indication of when the accused first, as far as your expression of an opinion is concerned, said that he regarded his mother as the daughter of Satan, the offspring of Isis? .... I suspect that his first mention of Isis may well have been to me.
Yes. Some eight and a half months after the – .... Yes. Fatal stabbing of his mother.
HIS HONOUR: You're not directing a question to the appellation are you?
MR BUGG:     I am. It's the first time that he had expressed his belief that his mother was the daughter of Satan.
HIS HONOUR Right, not the appellation, you understand? When did you understand, by whatever name, he first referred to his mother as the daughter of Satan.
WITNESS:      I believe he referred to his mother as the daughter of Satan prior to seeing me but the first mention of the word Isis was in my assessment and I believe I know where that word might come from.
MR BUGG:     Yes, well in 1987 you examined R G D didn't you? ... That's correct.
And Mr [D] was on trial for the killing of his mother when he jumped on her a number of times and inflicted such injuries on her that she died from those injuries? ...... That's right Mr [D] was found to be not guilty by reason of insanity because of very severe mental illness at the time.
A schizophrenic disorder? .... Probably schizophrenic, although at the time he was so acute it was impossible to make a specific diagnosis other than he was very psychotic.
You examined him? .... Yes, I did.
And you know that he expressed the firmly held belief that he was the Son of God? ..... Well at one stage he believed that he was God.
MR BUGG:     Yes. But he expressed the belief that he was the son of God? ... Yes.
That he regarded his mother as the daughter of the Satanic princess, Isis? .... No, my recall – –
MR HODGMAN:        Your Honour, I have an objection and it should be dealt with in the absence of the jury, I feel. Not that I don't want them to hear it, but just the practice of the court is – – if my friend gives an assurance in open court he's going to make this in some way relevant, I don't – –
HIS HONOUR: Yes, I think that's important, Mr Bugg, isn't it, that you – – are you going to make it relevant?
MR BUGG.     I can – I can –
HIS HONOUR: I mean, for all we know Mr [D] died two years ago, you see, for all –– just to sharpen the point.
MR BUGG:     Mr [D] is still alive, is he not? ... Mr [D] is currently a patient, resident, I'm not sure of the correct word, at the prison hospital.
That's right. And you've seen him on your visit over there, have you not? ... Yes.
That's right. When – –
HIS HONOUR: Yes, well, now, just let me intervene then to see whether the objection is to be – –
MR BUGG:     Well, I haven't finished yet.
HIS HONOUR: I am sorry.
MR BUGG:     I haven't finished yet, your Honour. And that his belief, at the time he killed his mother – –
MR HODGMAN:        No, I'm sorry, I object.
MR BUGG:     All right.
HIS HONOUR: No, well, that's – – I need to look to the question of relevance, now, Mr Bugg. Yes, Mr Hodgman?
MR HODGMAN:        My objection – I'll do it in front of the jury – is that there is nothing to link Mr [D] whoever he is, with this accused. And what my friend is about to do, prima facie is to engage in the most reckless unjust speculation. I have no instructions on the matter, but I ask my friend in open court, does he claim to have evidence that Mr [D] has ever spoken to the accused in his life?
HIS HONOUR: Oh, well, just a moment. I'm not –
MR BUGG:     I'm not going to make that claim here, your Honour. Your Honour, what I will indicate to the court is, that I propose to now make the line of questioning of this witness, relevant, by showing this document to the witness, a copy of which was shown to the Defence last week; could the witness be shown that?"

In the absence of the jury the trial judge was informed that [D] was the person referred to as [St] by Dr Burges–Watson. Following legal argument the Director of Public Prosecutions announced that he would not pursue the line of cross–examination. Senior counsel for the appellant then applied to have the jury discharged, an application which was refused by the trial judge. Later in the cross–examination of Dr Sale, the doctor, said that his understanding from all the material he had considered was that the first occasion upon which the appellant had mentioned that his mother was the daughter of Satan was in about mid–November 1990, some 3½ months after the homicide.

Although the transcript of the closing address to the jury of senior counsel for the appellant was not made available to this court, it is apparent that he told the jury that there was no evidence of contamination of the appellant's mind at the prison hospital. In the course of his closing address, the Director of Public Prosecutions made a number of attacks on submissions which have been made to the jury by the appellant's senior counsel, and included in what the Director said was the following:

"'There is no evidence of contamination at the prison hospital.' Rubbish. Their own witness, their expert, whose opinion they want you to rely upon, says 'In my opinion he's contaminated.' So forget that bit of his opinion because that's unreliable but take this piece of opinion because that's reliable. You can't have it both ways. They call someone into the box who sees him on a regular basis shortly after this incident, then sees him a couple of days before he gives evidence and says 'I've seen him. I've read that unsworn statement. In my opinion that's evidence of contamination. His thoughts have been contaminated.' Now that's their own expert. We don't have to call evidence of contamination because their own expert has told you that. How long do you want to sit here and have witnesses brought in? Because that is the plain fact."

At the end of the Director's closing address, senior counsel for the appellant, renewed an application to have the jury discharged. The application was partly based on the "improper comment" of the Director to the jury that the submission that there was no evidence of actual contamination at the prison hospital was rubbish. The application failed.

In the course of his summing up to the jury, the learned trial judge referred to the evidence of the psychologist, Dr Williams, who had been called by the defence. His Honour commented that the importance of some of the evidence of Dr Williams was that the existence of delusional beliefs was central to the question of whether the accused at the critical time was of a schizotypal or schizo personality or suffering from schizophrenia. The learned trial judge referred to the fact that Dr Williams had conceded that a delusional belief, if it existed, would have been a permanent belief although it would not need to be present in the same strength all the time. The learned trial judge also referred to the evidence which had been given by Dr Williams concerning what was said by the appellant to Mr and Mrs [L] shortly after the homicide, such evidence being that the statement to the [L]s was "probably not consistent with the existence of a delusion." The learned trial judge next dealt with the evidence of Dr Burges–Watson, and in the course of what he said the following passage occurred:

I turn to the third ground of appeal. [Miss R] was called by the appellant. She told the jury that she was a guidance officer with the Education Department, holding the degree of Bachelor of Arts, majoring in psychology. She said that she was a registered psychologist and that prior to undertaking her studies in psychology, she had qualified as a teacher and had in fact been employed as a primary school teacher for some eight years. Evidence was sought to be led from her that she prepared a guidance report in respect of the appellant in May 1989, and that in that report she expressed the following, "I do feel concerned that some time in the future [J] [the appellant] may lose control and inflict real harm on another person". Whilst it was the report containing that expression of opinion which was sought to be tendered, it is clear that what was sought to be put before the jury was that at the time that she prepared her report, the witness held the opinion that there was a danger that at some future time the appellant might lose control and inflict bodily harm on another person. In cross–examination on the voir dire she agreed that what she had said was an expression of concern and that she did not purport to express any opinion to the effect that at the relevant time the appellant suffered a personality disorder or mental disorder. She further agreed that she did not purport to express any opinion that there was a predictable behavioural outcome.

In refusing to permit the evidence to be led before the jury, the learned trial judge expressed the view that the witness was not expressing any expert opinion at all, but merely a personal, non–expert opinion based on her general experience of life, not as the result of the application of any special field of expertise. In my view, what the learned trial judge said was undoubtedly correct. It is trite law that in those circumstances evidence of the opinion of the witness was not admissible. This ground is not made out.

By the fourth ground the appellant asserts that the learned trial judge ought to have left provocation to the jury. The effect of the objective test of s160(2) of the Criminal Code was authoratively stated by the High Court in Stingel v The Queen (1990) 171 CLR 312, in the following terms, at p331:

"It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self–control within the limits of what is ordinary (for a person of that age), to do what the accused did."

It was for the trial judge to determine whether any matter alleged was capable of constituting provocation, that being a matter of law. He was required to take into account that the appellant was aged 17 years at the relevant time. At the trial, the appellant submitted that there were six matters which, standing alone or in conjunction with one or more of the other matters, were capable of constituting provocation. Those matters were stated to be the following:
1That the deceased falsely and maliciously accused the appellant of deliberately breaking a kitchen cupboard door.
2That the deceased falsely and maliciously informed the appellant's father that the appellant had deliberately broken the kitchen cupboard door, notwithstanding his protestations of innocence, intending that the appellant be punished for something which he had not done and which the deceased well knew he had not done.
3That the deceased caused the appellant's father to punish the appellant by sending him to his room and telling him that he was "not going anywhere any more", and, "You can't have your way I want mine".
4That the deceased called the appellant "Little bastard", the appellant having been illegitimate at birth.
5That the deceased slammed a book on the table and shouted at the appellant.
6That the deceased said to the appellant "Why don't you kill me?", and, "Well why don't you kill me then?"

I will assume that there was, in fact, evidence upon which the jury could have found the existence of all the facts to which I have referred and which the appellant submitted were capable of constituting provocation. As a matter of fact, not all those matters were capable of being taken to have been established by the evidence. I will also assume that each of those matters could be categorised as being either a wrongful act or an insult, although that may be doubted. Making those assumptions, it is nevertheless plain that the matters referred to by counsel for the appellant were incapable of constituting provocation of an ordinary person aged 17 years. The learned trial judge so ruled. Unquestionably he was correct in so ruling.

I turn to the final ground of appeal. The conduct and comments therein referred to and set forth in the appellant's written submissions may be summarised as follows:

(a)the course of cross–examination of Dr Sale by prosecuting counsel; and
(b)observations made by prosecuting counsel during the course of his closing address to the jury.

Before dealing with those specific matters, it is appropriate to outline some background material. As I have indicated, Dr Sale's diagnosis had, as a necessary foundation, the fact that at the time he killed his mother the appellant believed that his mother was the daughter of Satan. I have also referred to evidence of a conversation which the appellant had with Mrs [L] shortly after he had killed his mother upon the basis of which the jury might have concluded that as a matter of fact the appellant had not held such a delusional belief at the time he killed his mother. In that context, evidence that the appellant had, whilst on remand in custody awaiting trial, been in contact with a person or persons who might have suggested to the appellant that he ought to assert that he held or had held such a belief by way of assisting his defence, was relevant.

The matter was first raised in evidence by Dr Burges–Watson whilst he was giving evidence–in–chief and when the following exchanges occurred:

"QThank you. In his unsworn statement the accused said 'the grim reaper got around behind the chair she was sitting in and the evil spirits over to the side, they all kept saying kill her, she said "well, why don't you kill me than (sic)". The argument got worse and the grim reaper said "go on, do it". The evil spirits said "or we'll kill you" so I pulled out the hunting knife and stabbed her. I got dizzy and went black for a few seconds. I went into a rage and then shortly afterwards, I said – after the repeated stabbing, I then came out of my frenzy'. Does that give you any indication of the existence of a temporal lobe epilepsy at the time?
AWell, it raises a number of possibilities. It raises the possibility that he was deluded at the time. It also raises the possibility that he had a temporal lobe partial seizure at the time. It also leads onto the fact that after such an event, peoples memory of it is very seldom totally accurate and also that somebody in his position tries to make sense of what has happened and I suspect that is one of the things that has happened while he's been in the prison. He's been in the company, I understand, of one who I only know as [St] who is, I understand, a diagnosed schizophrenic who has also killed his mother and they obviously have a certain amount in common and some of the ideas he is now expressing are quite clearly picked up, in my opinion from his involvement with [St]. In other words, ideation by which I mean his thoughts and ideas has been contaminated by the company he's been keeping."

There was no admissible evidence before the jury that the appellant had ever met the person [St]. There was no admissible evidence before the jury that the person [St] was a diagnosed schizophrenic who had killed his mother. The evidence of Dr Burges–Watson to that effect constituted hearsay. Whilst Dr Burges–Watson could give such hearsay evidence as constituting part of the history upon the basis of which his opinions were expressed, it was not evidence of those facts. In the absence of those facts being proved by admissible evidence, Dr Burges–Watson's statement of them was not evidence which the jury was entitled to consider, except that insofar as any opinion expressed by any expert witness was based upon the existence of those facts, the jury was entitled to reject such an opinion by reason of the non–establishment of those facts. Indeed, if the existence of such facts was essential for the expression of the opinion, the non–establishment of those facts required the jury to reject such opinion.

The issue was taken up again during the course of the cross–examination of Dr Sale when the following exchange occurred:

"QNow you acknowledge the fact that concern has been expressed by Dr Burges–Watson that there may have been contamination of the accused through contact with other prisoners in the hospital system at Risdon Prison?
AYes, I'm aware of that.
QAnd that that contamination would have occurred before you saw the accused in April of this year?
AYes, I'm aware of that.
QSo that you run the risk of what you're seeing as a muddy pond rather than a settled pond?
AYes.
QAnd you said that your belief, your opinion I'm sorry is that the second limb of Section 16, that is that he couldn't understand – by reason of disease of the mind he was unable to understand – distinguish right from wrong when he killed his mother?
AYes.
QBecause he saw her as the daughter of Satan?
AYes.
QThe product of a union between Isis and Satan?
AYes.
QNow do you have any indication of when the accused first, as far as your expression of an opinion is concerned, said that he regarded his mother as the Daughter of Satan, the offspring of Isis?
AI suspect that his first mention of Isis may well have been to me.
QSome eight and a half months after the –
AYes.
fatal stabbing of his mother?

His Honour:     You're not directing a question to the appellation are you?
Mr Bugg:I am. It's the first time that he had expressed his belief that his mother was the daughter of Satan.
His Honour:     Right, not the appellation, you understand? When did you understand, by whatever name, he first referred to his mother as the daughter of Satan?
Witness:I believe he referred to his mother as the daughter of Satan prior to seeing me but the first mention of the word Isis was in my assessment and I believe I know where that word might come from.
Mr Bugg:Yes, well in 1987 you examined [R G D] didn't you?
AThat's correct.
QAnd Mr [D] was on trial for the killing of his mother when he jumped on her a number of times and inflicted such injuries on her that she died from those injuries?
AThat's right Mr [D] was found to be not guilty by reason of insanity because of very severe mental illness at the time.
QA schizophrenic disorder?
AProbably schizophrenic, although at the time he was so acute it was impossible to make a specific diagnosis other than he was very psychotic.
QYou examined him?
AYes, I did.
QAnd you know that he expressed the firmly held belief that he was the Son of God?
AWell at one stage he believed that he was God.
QYes. But he expressed the belief that he was the son of God?
AYes.
QThat he regarded his mother as the daughter of the Satanic princess, Isis?
ANo, my recall ––
Mr Hodgman   Your Honour, I have an objection and it should be dealt with in the absence of the jury, I feel. Not that I don't want them to hear it, but just the practice of the court is –– if my friend gives an assurance in open court he's going to make this in some way relevant, I don't ––
His Honour:     Yes, I think that's important, Mr Bugg, isn't it, that you –– are you going to make it relevant?
Mr Bugg:I can – I can –
His Honour:     I mean, for all we know Mr [D] died two years ago, you see, for all –– just to sharpen the point.
Mr Bugg:Mr [D] is still alive, is he not?
A:Mr [D] is currently a patient, resident, I'm not sure of the correct word, at the prison hospital.
QThat's right. And you've seen him on your visit over there, have you not?
AYes.
QThat's right. When ––
His Honour:     Yes, Well, now, just let me intervene then to see whether the objection is to be ––
Mr Bugg:Well, I haven't finished yet.
His Honour:     I am sorry.
Mr Bugg:I haven't finished yet, Your Honour. And that his belief, at the time he killed his mother ––
Mr Hodgman: No, I'm sorry, I object.
Mr Bugg:All right.
His Honour:     No, well, that's –– I need to look to the question of relevance, now, Mr Bugg: Yes, Mr Hodgman?"

Counsel for the appellant submitted that the line of questioning was irrelevant in that there was nothing to link the person [D] with the appellant. Counsel for the Crown indicated that he would be making it relevant. Subsequently he choose not to do so. At the end of the evidence, the situation was that the jury had heard some evidence about the person [D], but had heard no evidence that the appellant had ever met him or spoken to him, nor had they heard any evidence to the effect that [D] and [St] (to whom Dr Burges–Watson had referred) were one and the same person. The learned trial judge was informed, but in the absence of the jury, that it was the Crown case that "[St]" was [D]'s nickname.

It seems tolerably clear that if the jury took the view that the appellant had consciously or unconsciously untruthfully asserted in his unsworn statement that at the time he killed his mother he believed that she was the daughter of Satan and that he had been led to so assert as a result of matters suggested to him by a person he had met in prison, or as the psychiatrists referred to it, he had been contaminated, then that might well have led them to reject the opinion expressed by Dr Sale. That opinion proceeded upon the assumption that at the time the appellant killed his mother he believed that she was the daughter of Satan. If the jury rejected the proposition that the accused held that belief at the time he inflicted the fatal blows then a rejection of Dr Sale's opinion must have followed. In the result the jury would not have been satisfied that the appellant had established a defense under s16(1)(b).

During the course of his closing address to the jury, counsel for the Crown had this to say:

"'There is no evidence of contamination at the prison hospital.' Rubbish. Their own witness, their expert, whose opinion they want you to rely upon, says 'In my opinion he's contaminated.'"

The matter of contamination was the subject of some observations made by the learned trial judge during the course of his summing up. Those observations were as follows:

"Well, with respect to the unsworn statement, it seemed to me that Doctor Burges–Watson didn't place much veracity on that unsworn statement and you will remember that he told you that he thought that the document was largely due to contamination with other prisoners in the prison hospital since his incarceration there in July last year and you will have to think about this. But while you are thinking about it I just want to tell you one thing about that. Now, Doctor Sale also conceded the possibility that there had been contamination of the accused's mind and it is a matter that you will have to consider. It is not a matter about which there can be any direct evidence because you can't have direct evidence of what is in somebody's mind. You have Doctor Burges–Watson's opinion, who saw him on a number of occasions, that there had been contamination. But I expressly want to mention to you a piece of cross examination of Doctor Sale on this issue. You remember there was talk about a man, I think his name was [D], who had odd delusional beliefs, and Mr Hodgman quite properly took objection to that, saying 'Well look, how do we know that he has ever spoken to the accused?' and indeed that is a perfectly proper thing to say. For all we know, [D] might be up at Royal Derwent Hospital and never seen the accused, for all we know he might be dead. I think actually Doctor Sale said he wasn't. But anyway, there's certainly no evidence that he spoke to the accused at all so you must put that right out of your mind, it's another good example of the evidence not being there, and that's why we stopped it, and that's why Mr Bugg said the next morning he wasn't going to pursue it. But I feel I should draw your attention specifically to it and when you are considering Doctor Burges–Watson's opinion as to whether there has been contamination, you mustn't take into account any of that evidence about this chap [D] because there is just no evidence of contact between the two."

As argument on the final ground of appeal developed, it became plain that there were three elements to this ground:

(a)       an evaluation of counsel's conduct as a matter in itself;
(b)       the question of the admissibility of the evidence of contamination which was the subject of some of the comments made by counsel; and
(c)       the effect and/or completeness or incompleteness of the learned trial judge's directions in relation to [D] and the contamination evidence generally.

Whilst it might be thought that the amended ground did not completely raise all such issues, counsel for the respondent was content to have the matter argued upon that basis, and it is therefore appropriate that it be so considered. Notwithstanding that I am prepared to consider this ground of appeal as raising all three elements, this ought not to be taken as generally countenancing any practice of arguing matters not properly raised by a ground of appeal.

I have already said that there was no admissible evidence that the appellant had ever met or otherwise communicated with [St] or [D]. Dr Burges–Watson did not express a view that there had been contamination upon the basis of material other than the appellant's supposed contamination by [St]. He might have been able to express an opinion that there had been contamination by reference to other materials, but he did not purport to do so.

The jury were left in the situation where they had hearsay evidence of contact on the part of the appellant with the man [St], and hearsay evidence of matters relating to that person. Counsel for the Crown forcefully asserted to the jury that it was "rubbish" to assert that there was no evidence of contamination. The learned trial judge told the jury, without comment, that Dr Burges–Watson "thought that the document was largely due to contamination with other prisoners in the prison hospital", without adverting to the fact that that opinion had been expressed upon the basis of material which had not been proved by admissible evidence. The jury could only have been left with the understanding that they were entitled to treat Dr Burges–Watson's evidence of the appellant's contact with [St] and matters relating to [St] as being evidence upon the basis of which the jury was entitled to find those facts as having been established. Whilst the jury was specifically told to disregard evidence relating to the man [D], they were not told the same thing in relation to the man [St]. Whilst the learned trial judge had been told that they were one and the same person, that fact, if it was a fact, was not before the jury. The learned trial judge told the jury that it had Dr Burges–Watson's opinion that there had been contamination. Whilst that was so, the jury was not told that the facts upon the basis of which that opinion had been expressed had not been established by admissible evidence. The jury ought to have been given express directions to disregard the evidence about [St] and that there was no evidence that the appellant had been contaminated in the relevant sense.

Whilst it might be argued that the wrongful admission of the evidence as to contamination led from Dr Burges–Watson could not in itself form the basis of a successful appeal by reason of the provisions of s113(b) of the Evidence Act 1910 (and at least by the end of the evidence it was apparent that the admission of that evidence was wrongful) the same considerations do not apply to observations thereon by prosecuting counsel and the learned trial judge. Counsel for the Crown quite erroneously told the jury that in effect there was evidence of such contamination, and that erroneous statement was not corrected by the learned trial judge, who summed up to the jury in terms tacitly assuming that there was such evidence. Whilst the learned trial judge had explained to the jury that "what was said out of a court to a doctor, or anyone else, does not prove the truth of the fact stated" and had otherwise during the course of the trial conveyed the effect of that evidentiary principle to the jury, the jury was left in the situation where the closing address of counsel for the Crown and the learned trial judge's summing up conveyed to them the impression that there was evidence that the appellant had been contaminated. In those circumstances it is unrealistic to suppose that the jury would have applied the rule of evidence referred to by the learned trial judge so as to conclude that there was no evidence that the appellant had been contaminated as a matter of fact.

In the result, I have concluded that in its consideration of the defence raised by the appellant under s16(1)(b) of the Criminal Code the jury had before it significant inadmissible evidence. Far from being told in express terms to ignore it, they were directed in terms where they could only have assumed that that inadmissible evidence was relevant evidence capable of being taken into account by them in considering the defence. The appellant was entitled to a proper consideration of the defence raised by him under s16(1)(b). As a first step in that consideration the jury was required to consider whether the foundational facts upon the basis of which Dr Sale's opinion was expressed had been established to the requisite degree. The inadmissible evidence may well have persuaded the jury that the foundational facts had not been made out leading to a rejection of Dr Sale's opinion. In those circumstances, the appellant has been deprived of the opportunity of having a jury fairly consider a defence upon the basis of admissible evidence. In those circumstances, his conviction cannot stand. This is not a case for the application of the proviso because I cannot exclude the possibility that the trial process was seriously compromised by the jury rejecting Dr Sale's opinion upon the basis of inadmissible evidence.

I would uphold the appeal, quash the appellant's conviction and order a re–trial.