Kosian v The Queen

[2013] VSCA 357

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0226
ADAM KOSIAN	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH, COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2013
DATE OF JUDGMENT	6 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 357
JUDGMENT APPEALED FROM	[2012] VSC 426 (Curtain J)

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CRIMINAL LAW – Conviction – Double murder – Offender suffered from paranoid schizophrenia and delusions – Defence of mental impairment rejected by jury – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Meaning of ‘wrong’ in s 20(1)(b) – Whether offender’s perception of legal and moral wrongness of his actions relevant to satisfaction of the statutory test – Stapleton v The Queen (1952) 86 CLR 358 and R v White (2003) 7 VR 422 considered – Appeal allowed – Conviction quashed – Applicant found not guilty by reason of mental impairment.

CRIMINAL LAW – Evidence – Expert psychiatric evidence – Two psychiatrists agreed as to the applicant’s mental state at the time of offending – Crown submission to jury that expert evidence would not assist them – Judge erred in failing to direct jury that expert evidence should not be disregarded without good reason – R v NCT (2009) 26 VR 247 and Taylor v The Queen (1978) 45 FLR 343 approved – Danger arose that jury would replace expert testimony with lay reasoning – Direction desirable alerting jury to dangers of applying standards of common sense and rationality used by sane rather than mentally ill person – R v Weise [1969] VR 953 followed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr G A Georgiou SC with Mr P J Smallwood	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. This was an application for leave to appeal against conviction and sentence on two charges of murder. Following a 16 day trial in the Supreme Court at Melbourne, the applicant was found guilty on 5 June 2012 of the murders of his friends, Boris Kostov and Goran Vasic. The jury rejected the defence of mental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).  The applicant was sentenced on 14 September 2012 to 17 years’ imprisonment on charge 1 and 17 years’ imprisonment on charge 2, with eight years’ cumulation, making a total effective sentence of 25 years’ imprisonment.  A non-parole period of 20 years was fixed.

1. The applicant sought leave to appeal against his conviction on the following grounds:

Conviction

1. The verdicts of the jury were unreasonable in that they were against the weight of the evidence.  In particular, upon the whole of the evidence adduced by the prosecution and by the applicant at his trial, it was not open to the jury to reject his defence of mental impairment.

2.The trial judge erred in failing to direct the jury that they should not reject the expert psychiatric evidence unless:

The facts on which their opinions were based are not satisfactorily established;  or

The jury are not persuaded that the steps of reasoning in the formation of those opinions were soundly taken;  or

There is some other factor before them that reflects on the validity of the opinion expressed.

1. Leave was sought at the oral hearing to include the following further ground:

3.The trial judge erred, when answering a question of the jury, in directing that they were not concerned with the question of moral concepts and moral consequences in circumstances where the evidence established that the applicant believed he was morally justified in killing the deceased men.

1. On 16 September 2013, this Court granted the applicant leave to appeal, allowed the appeal and overturned his conviction substituting a finding of not guilty on the grounds of mental impairment.  These are my reasons for those orders.

Factual background

1. The applicant was born in the region of Karabakh, which is disputed territory between Armenia and Azerbaijan.  He and his family are orthodox Christians.  He married in 1986 and has a son, born in 1988.  After living in Azerbaijan and then Armenia, where he fled to escape a civil war in Russia, the applicant migrated to Australia in 1997, where he was awarded refugee status.  His wife and son followed in 2000/2001.  Not long after arriving in Australia, his mental state began to deteriorate and he experienced the first signs of mental illness.  He was admitted to hospital in December 1997 with a diagnosis of paranoid schizophrenia, and was discharged in February 1998 and placed in the care of a private psychiatrist who prescribed antipsychotic medication.  He suffered a serious relapse in August 1999, which required a one week admission to the Royal Brisbane Hospital.  The applicant’s mental health created difficulties in finding work and he was eventually placed on a disability pension for schizophrenia.  It also led to difficulties with his marriage, and in 2004 he separated from his wife.  The couple subsequently divorced.  His ex-wife and son remain in Brisbane.

1. The applicant moved to Melbourne and sought opportunities for work as a dental technician.  When he came to Melbourne he contacted the Inner West Mental Health Service in Coburg.  They were provided with details of his treatment in Queensland and he was managed as an outpatient, attending once a week and being prescribed antipsychotic medication.  He subsequently had a falling out with the Inner West Mental Health Service and was transferred to another community health service in Moonee Ponds, in whose care he remained in June 2006, when he was discharged as an outpatient.  From that time onward, the applicant was treated by a general practitioner who prescribed Xanax and Oxycontin for relaxation and insomnia, but he was not receiving any antipsychotic medication.

1. In November 2009, the general practitioner recorded a decline in the applicant’s mental health and contacted the Inner West Mental Health Service.  The general practitioner was concerned about the applicant’s deteriorating mental state and the risk he might present to others, as he had been increasingly paranoid over the past two visits, suffering from an unfounded belief that he had a melanoma.  The general practitioner and his staff were reported to have felt threatened by the applicant’s behaviour.  As a result of that referral, the applicant was assessed over the telephone on two occasions.  This appears to have been the extent of the professional intervention.

1. The victims, Boris Kostov and Goran Vasic, were the applicant’s friends.  They were all part of a group of men who socialized at ‘Players on Lygon’ (‘Players’) in Lygon Street, Carlton.  The applicant had known the victims for around four years before the murders.  In January 2010, he began to suffer from delusions relating to Kostov and Vasic.  On one occasion, the applicant was drinking at Players with another friend, Michael Milankovski.  They were both quite drunk and went to the applicant’s unit in Brunswick.  The applicant rang Vasic and invited him to come over, which he did.  During the night, the applicant became ill and Vasic accompanied him to the bathroom before putting him to bed.  He then returned to the living room to watch television with Milankovski.  The applicant could be heard getting up and going to the bathroom to vomit.  Once he had settled, Vasic and Milankovski left.  The following day, the applicant told Milankovski that there was money missing from his flat.

1. On another occasion between January and June 2010, the applicant and another friend, Peter Omcikus, went to the casino and won a considerable sum of money.  To celebrate, the applicant paid for dinner for a number of friends at a restaurant in Carlton and they continued the festivities at Players.  The applicant became very drunk, at one point collapsing on a table, and his friends decided to drive him home.  When they arrived, Omcikus and Kostov walked the applicant to the door of his unit and then left.  Milankovski helped the applicant inside and stayed over, sleeping on the couch.

1. Over the next few days, the applicant expressed the belief that Kostov had spiked his drink.  Over the ensuing weeks and months, he became fixated with the belief that he had been drugged and raped, and that money and other items had been stolen from him.  He believed that Kostov and Vasic were responsible.  Milankovski said that when the applicant was drunk, the topic would come up, and it appeared that the applicant had confused and conflated the two abovementioned occasions, as there had never been any occasion when both Kostov and Vasic were present together in the unit.  The applicant also came to believe that the patrons at Players were mocking him, and that pictures of him had been placed on the internet.

1. In the days and weeks leading up to the murders in August 2010, there was tension between the applicant and Kostov.  The applicant would refer to Kostov to the staff at Players as ‘the poofter’, and would comment that Kostov was too scared to come near him.  The applicant apparently remained on good terms with Vasic, however, even going to Vasic’s unit the day before the killings, at Vasic’s request, to help him with a flat battery in his car and give him a gift of smallgoods.

1. On 11 August 2010, in the presence of his friend, Georgina Dolejsi, the applicant wrote out a document described as a Will, in which he left Dolejsi his possessions.

1. On 12 August, the applicant arranged to meet Milankovski at Players the next day to repay him money.  On the same day, the applicant and Vasic were at Players playing the poker machines, and Vasic bought him a beer.  Shortly after drinking from it, he became ill and complained to Dolejsi that Vasic must have put something in it.  

1. On 13 August 2010, the applicant arranged for Dolejsi to send some personal items to his son and then arranged to meet her at Players later in the day.  Between 1 pm and 1.30 pm, he spoke to Vasic twice on the phone and, at 2 pm, phoned his mother and sister in Armenia to tell them that he would be out of contact for a month and a half.  Before leaving his unit, he took a series of photos of himself, lit candles on the coffee table and crossed himself.  It was noted in the files of Dr Douglas Bell, consultant psychiatrist at the Thomas Embling Hospital, that the applicant also prayed for forgiveness — an event which I shall hereafter refer to as the ‘prayer incident’.[1]  The applicant left food for his dog and birds, and kissed his dog three times before leaving the unit armed with a .32 calibre Browning handgun and a spare magazine.  He walked to Lygon Street in Brunswick and hailed a taxi to Players.  The taxi driver later described him as pleasant, calm and affable.

   [1]Dr Bell spoke to the applicant at Thomas Embling Hospital in August/September 2010, and made notes dated 16 September 2010.

1. The applicant arrived at Players at about 3 pm.  He gave Milankovski the money he owed him, and shortly after 4 pm telephoned Vasic, who was apparently stuck in traffic.  When Vasic arrived, he and the applicant had a short, private conversation in the vicinity of the Bendigo Bank.  Kostov was also there playing the poker machines and had arranged to meet a friend, Vince Panov.

1. The applicant shot Kostov outside Players where he was seated in the al fresco area.  Kostov ran inside and collapsed.  The gun jammed, the applicant walked to the driveway of the carpark next door and reloaded it, then returned and shot Vasic twice in the head as he was sitting at one of the outside tables, saying ‘You too, dog’.  The applicant then ran inside, shot Kostov again, and told the patrons and staff who were trying to assist him to move away, saying that he deserved what he got.  The applicant called Kostov a ‘dog’ and a ‘pig’, and placed two pig figurines on his chest.  The applicant then ran outside across Lygon Street into Argyle Square, where he was seen talking on his phone with the gun in one hand.  He then returned to Players, again telling those present to move away from Kostov.  Autopsies of the two victims suggested that both were deceased by this point.  The applicant announced that he had called the police, although the call failed to connect.

1. The applicant was arrested without incident just before 5 pm.  He was taken into custody and a record of interview commenced at 7 pm that night, resuming at 11 am the next morning.  In the interview, the applicant admitted killing Kostov and Vasic, but said that he was killing two animals because they had done very bad things to him.  He described being anally penetrated with a bottle or glass, feeling pain and passing out.  He expressed no remorse, stating, ‘I kill animals, not humans.  Humans don’t do that’.  He said that if possible, he would like to serve his sentence — ‘how many years they give me or life or what’ — in Queensland, so as to be nearer to his family.

1. Dr Adam Deacon, a psychiatrist with Forensicare, and Dr Lester Walton, consultant psychiatrist, both interviewed the applicant some time after the shootings.  Both gave evidence that the applicant has been diagnosed as suffering from paranoid schizophrenia.  Hallmarks of that psychotic illness are fixated delusional beliefs and referential delusions, of which his belief about the sexual assault was an example.  The psychiatrists agreed that the shootings arose from these genuinely held but delusional beliefs.  Dr Deacon notes in one of his reports that the applicant believed that the murders were morally justified, and that ‘in reasonable time, vaguely estimated to be two years, he would have the opportunity to have his moral reasoning understood, and be exonerated’.

1. The only issue at trial was whether the defence of mental impairment was established under s 20 of the Act — in particular, whether, on the balance of probabilities, the applicant had established that he did not know at the time of the murders that his conduct was wrong.

1. Section 20 of the Act provides as follows:

(1)       The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that —

(a)       he or she did not know the nature and quality of the conduct;  or

(b)       he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2)       If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

1. The terms of s 20 incorporate the common law test of insanity as it has developed in Australia.[2]  In R v Porter,[3] Dixon J (as he then was) enunciated the two different states of mind which may provide a basis for the defence of mental impairment and which are now enshrined in s 20(1) of the Act:

One state of mind is that in which [the accused] is prevented by mental disorder from knowing the physical nature of the act he is doing;  the other is that he was prevented from knowing that what he was doing was wrong.[4]

[2]R v Gemmill (2004) 8 VR 242, 245 [11]; see also Explanatory Memorandum, Crimes (Mental Impairment and Unfitness to be Tried) Bill 1997 (Vic), 8, which states that s 20(1) ‘is a codification of the common law test provided in the M’Naughten Rules of 1843 and endorsed by the High Court in R v Porter’.

[3](1933) 55 CLR 182, 188.

[4]Ibid 188.

1. As to the state of mind that that the accused did not know that his act was wrong, Dixon J said:

It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act … The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.  Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.[5]

[5]Ibid 189–90; cited and affirmed in Stapleton v The Queen (1952) 86 CLR 358, 367.

1. These propositions were repeated in R v Matusevich and Thompson:[6]  that for an accused not to know that their conduct was wrong, they must have been unable at the time of the offending to reason about the matter with a moderate degree of sense and composure[7] — a formulation which now provides the basis for the concept of knowledge expressed in s 20(1)(b) of the Act.

   [6][1976] VR 470.

   [7]Ibid 476; citing R v Porter (1933) 55 CLR 182, 189–90; Sodeman v The Queen (1936) 55 CLR 192, 215; Stapleton v The Queen (1952) 86 CLR 358, 367; Mizzi v The Queen (1960) 105 CLR 659, 664–5.

1. In Stapleton v The Queen,[8] the High Court (Dixon CJ, Webb and Kitto JJ) stated that in order for an accused to understand that their conduct was ‘wrong’ for the purposes of establishing the defence of insanity, they had to have understood that it was wrong according to the ordinary principles of reasonable men, rather than being wrong as contrary to law.[9]  Was the accused unable because of his mental illness to thinkrationally of the reasons which to ordinary people make that act right or wrong?[10]  In R v White,[11] Chernov JA, with whom Charles JA agreed, affirmed the remarks of the judge below that the expression ‘wrong’ in s 20(1)(b) of the Act is ‘not directed to moral or legal concepts … but to the accused’s awareness that reasonable persons would disapprove as wrong the actions he is performing’.[12]

The evidence of the two expert witnesses

[8](1952) 86 CLR 358 (‘Stapleton’).

[9]Ibid 375.

[10]R v Porter (1933) 55 CLR 182, 189 (Dixon J).

[11](2003) 7 VR 442.

[12]Ibid 451.

1. Dr Deacon and Dr Walton, both psychiatrists, gave evidence at trial as to their interviews with the applicant after the shootings.  The content of that evidence, and the perceived conflicts between their understanding of the applicant’s mental state at the time of the offending, are relevant to each of his grounds of appeal.  I shall therefore discuss this material in some detail.

1. In a report dated 15 September 2011, after having consulted with the applicant on two separate occasions, Dr Deacon noted that the applicant’s presentation both leading up to the offence and thereafter was consistent with a psychotic illness.  His belief that he had been sexually assaulted by the victims was consistent with a delusion which had remained fixed and may not shift with treatment.  Dr Deacon noted that the applicant’s psychiatric presentation proximal to the offence was particularly complex, and that in his opinion he was mentally ill, suffering a psychosis which was commensurable with a relapse of schizophrenia.  Whilst noting the presence of ‘reasonably compelling evidence that [the applicant] knew that what he was going to do, and did, was wrong’, and that in Dr Deacon’s view the applicant knew his conduct was wrong, although ‘he most likely placed little weight on this knowledge’, Dr Deacon stated that he did not consider that the applicant was able to reason with a moderate degree of sense and composure, as perceived by reasonable people.  Dr Deacon emphasized also that the applicant did not consider his actions to be morally wrong, but considered them to be legally wrong.

1. After the above report was written, Dr Deacon examined the Thomas Embling Hospital’s clinical files on the applicant, and came across a clinical entry dated 16 September 2010 from Dr Bell, in which the applicant’s account of the offending is discussed.  Dr Bell had noted that the applicant, ‘before going to meet the victims lit some candles at his home, crossed himself several times and prayed for God to forgive him for what he was about to do.’  In light of this information, Dr Deacon considered that his conclusion in the earlier report, that the applicant had understood his actions to be legally but not morally wrong, ought to be revised.  He stated that in his view, it could be concluded that the applicant did consider his actions to be morally wrong, as evidenced by his prayer to God to forgiveness, but that ‘[w]hilst Mr Kosian considered his actions as morally wrong, as per God’s moral barometer, he decided to kill the victims as he felt his actions were nonetheless morally justified’.  Dr Deacon concluded that the applicant therefore did not have access to a defence of mental impairment, as he understood that his actions had been both legally and morally wrong, although his reasoning capacity had been impaired by his mental illness.

1. During cross-examination, Dr Deacon accepted that the key feature of the applicant’s thinking at the time of the shootings was a delusional belief system, and that those delusions represented a loss of touch with reality.  He noted that he had seen no evidence that the applicant was experiencing command type hallucinations.  He stated that the applicant had considered, and did have the capacity to understand right and wrong, at least at some stage during the morning in question.  He agreed that in his notes of his conferences with the applicant, he recorded that the latter had felt ‘morally justified’.

1. When taken to the notes he had made after his conference with the applicant on 5 September 2011, Dr Deacon stated that the note ‘didn’t think about it being wrong’ applied to the applicant’s state of mind at the time of the shootings.  The applicant reported to Dr Deacon that at the time of the shootings he wasn’t thinking about the consequences, only about what he was going to do.  As to his earlier evidence that ‘[the applicant] could recognise and appreciate his actions were legally wrong’, Dr Deacon said that proposition was in part correct but that it could be a matter of debate as to the extent to which he ‘appreciated the wrongness of his actions’.  Dr Deacon conceded that in his first report he had concluded that he did not consider that the applicant had been able to reason with a moderate degree of sense and composure as perceived by reasonable people.  The following exchange then took place:

What you were presented with was a man who at the time of the shootings was in the grips of a serious psychiatric illness? –- Yes.

That being paranoid schizophrenia? –- Yes.

He was psychotic? –- He was.

And who, on the basis of delusions, pursued the two men with such an intensity and purpose that he killed them in broad daylight, correct? — Correct.

And he felt morally justified in doing so, correct? -– Correct.

Such that he didn’t try to run and hide? –- No, he didn’t.

He asked people to call the police? –- Yes.

He waits for the police? –- Yes.

And then proceeds to give his explanations? –- Yes.

It suggests, doesn’t it, doctor, suggests very strongly, that at the time that he shot these two men he was probably incapable of reasoning with any degree of sense and composure, let alone a moderate degree? — The distinction being at the time of the shootings, I would agree.

1. Dr Deacon also conceded that in neither of his reports had he stated that the applicant could still reason with a moderate degree of sense and composure about whether his conduct would be perceived by reasonable people to be wrong;  that in the absence of the incident in which the applicant allegedly sought God’s forgiveness, there wouldn’t have been evidence to suggest that he understood what he was doing was morally wrong;  and that the applicant’s thinking was that people in the community would not consider his actions to be wrong, and that his reasoning capacity as to this issue was impaired due to the presence of mental illness.

1. Dr Walton provided three psychiatric reports which became exhibits on the plea.  In the first, dated 27 January 2011, he concluded that the most appropriate diagnosis of the applicant, on the balance of probabilities, was paranoid schizophrenia;  and that, given the applicant’s description of being ‘overwhelmed by hallucinations surrounding the killings’ and of ‘centrally relevant deluded thinking’, the schizophrenia was of a nature that resulted in him being unable to reason with a moderate degree of sense and composure as to the wrongfulness of his acts.  Dr Walton’s second report was written after his having read Dr Bell’s and Dr Deacon’s material on the applicant, which discussed the issue of the applicant having prayed before killing the victims:

If it is the case that Mr Kosian did engage in prayer at some time earlier but not immediately adjacent to the killings, ultimately that is irrelevant as it is his mental state precisely at the time of the offending which is the only consideration.  That said, I would caution interpreting the actions of someone in the grips of a psychotic illness engaging in prayer as necessarily indicative of a normal process of communicating with God or seeking forgiveness in the usual sense.

Dr Walton went on to state that the intensity with which the applicant pursued his victims before killing them was striking, reflecting the severity of his psychosis at the time, and that this was entirely consistent with the proposition that he was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his actions, as perceived by reasonable people.  In the third report, dated 5 June 2012, Dr Walton reiterated his opinion that the applicant’s mental illness was the central explanation for the criminal behaviour leadings to his convictions, and that he was

‘somewhat distracted by hallucinations and thoroughly driven by immediately relevant deluded ideas encompassing the victims’ at the time of the offending.

1. In his evidence-in-chief, Dr Walton noted that a person’s being psychotically angry might detract from their ability to reason with a moderate degree of sense and composure, as perceived by reasonable people, as to the wrongfulness of their conduct.  He noted that while it was not necessary, for the purposes of the defence of mental impairment, that the person actually believe that what they are doing is right, in this case the applicant did.  Dr Walton stated that the applicant had described to him that he was, ‘hearing voices 24 hours’, and that these included comments such as, ‘They killed you, you kill them’, though he noted that this was not a case involving command hallucinations.  Dr Walton stated that it was simply too dangerous to conclude anything about the applicant praying for forgiveness without having asked him about it.

1. In cross-examination, Dr Walton noted that the applicant’s thinking that he would go to jail for his actions did not amount to his having the necessary capacity to consider his actions morally.  He noted that he did not entirely agree with Dr Deacon’s assessment of the applicant’s awareness, expressed during the police interview, of the consequences of his actions as ‘quite realistic’.  In re-examination, he was asked, ‘What is it about this man that prevented him from reasoning with a moderate degree of sense and composure about the wrongness of his act as perceived by reasonable people?’, to which Dr Walton replied, ‘The simple answer to that is that he’s suffering from a mental illness called schizophrenia and we know that his thinking capacity is impaired simply because he’s prone to these deluded ideas.  By definition, he can’t think rationally.’

1. In closing, the prosecution referred to the evidence of the experts, their analysis of the accused’s mental state at the time of the offending and whether the applicant was entitled to the defence of mental impairment.  He referred to the evidence of Dr Deacon concerning the applicant’s record of interview which Dr Deacon said reflected a level of composure.  He submitted that the jury should be cautious about accepting some of the evidence of Dr Walton, in particular because he had not asked the applicant about the answers that the applicant had given in his record of interview.  The prosecutor made the following submission to the jury:

Importantly, of course, it is your decision.  It is not decided by psychiatrists.  The expert evidence of Doctors Deacon and Walton is there to assist you but ultimately the decision is one for you and you alone.

1. The prosecutor emphasized that the record of interview was the event most proximate to the shootings, and therefore the most appropriate source of evidence regarding the applicant’s mental state at the relevant time:

[T]he best evidence of Mr Kosian’s mental state at the time of the shootings, in my submission, must be the contemporaneous evidence, the things that he did at or about the time of the shootings, the things that he said at or about the time of the shootings.  To this end the record of interview, in my submission to you, is critical because those answers, as we know, were provided by Mr Kosian a short time after the shootings.  We don’t have a camera obviously that can look inside his head and ascertain what he was thinking at the moment he pulled the trigger in relation to Boris and Goran, so all we can do is look at the surrounding circumstances in order to provide insight into what he was thinking at the relevant time and whether or not, on the balance of probabilities … he did not know it was wrong.

So I submit to you that it’s this record of interview and the things that he does, the things that he says set out in the record of interview, corroborated by other or supported by other pieces of evidence in about the time of the shootings that you can draw conclusions from.  And you can’t get a lot of assistance, in my submission to you, from the psychiatrists.  You can’t get a lot of assistance from them.  They come to the situation, as you know, after 13 August.  Both are experts but both are trying to reconstruct, they are trying to provide professional opinions as to the state of mind of Mr Kosian at the critical time, but by definition the fact that they come at a later time they are reconstructing things and what is submitted is what they are doing is reasoning backwards … from a point in time some months later.

And so what I am submitting to you is that the important evidence in this case on this very issue that you have to concern yourselves with is what is contemporaneous evidence rather than what is gleaned some months later.  I am submitting to you that you should be commencing with what is contemporaneous because that is the critical issue in terms of what he was thinking at the relevant time.[13]

[13]Emphasis added.

1. The trial judge, in her subsequent directions to the jury on the value and relevance of the expert evidence, stated that:

It is a matter for you whether you accept the evidence of expert witnesses.  You evaluate the evidence the same way as you would the evidence of any other witness, taking into account the degree of expertise and the manner in which the witnesses have conducted any examination upon which they have based their respective opinions.

You will appreciate that neither of these experts have had their expertise such as would enable them to express those opinions challenged.  What is in dispute is the extent to which that evidence may be said to assist you.

With the evidence of expert witnesses you weigh that evidence the same as you would the evidence of other witnesses.  As the judges of the facts you are not bound to accept any expert opinion but as the judges of the facts you are required to fairly and impartially consider the opinions of the expert witnesses that have been placed before you and see whether they lead you to one conclusion or another.

You would assess the expert witness’ opinion in the much the same way as you would assess the evidence of any other witness except that you have regard to their qualifications.  Are they sufficiently qualified, or eminently qualified, to commend their view to you? Or does it make it likely that what they say is probably right? ...  Does their opinion accord with the objective evidence or the facts as you find them to be?

In other words, …you line it up against the other facts and evidence that you have before you and ask yourself, ‘how likely is it that it corresponds with it?’  If it does then you are, it would seem, more likely to accept it than if it seems far fetched by reference to objective circumstances.

Just as with any other witness, you can accept or reject parts of an expert witness evidence as seems appropriate to you after you have fairly and impartially assessed it by reference to other evidence in the case that you find acceptable.

1. Significantly, her Honour accepted as a fair comment by counsel for the applicant that ‘there is very little which differentiates Dr Deacon’s evidence from that of Dr Walton.’  Her Honour continued:

Both have during their evidence said to you, perhaps in different ways, that at the time of the shootings they considered it likely that Mr Kosian was incapable of reasoning with any degree of sense and composure that what he was doing was wrong as perceived by reasonable people.

1. Her Honour told the jury that the extent of the disagreement between the experts, in as much as there was any, related to the implications of the note made by Dr Bell in September 2010 that the applicant had said that on the morning before the killings he had prayed for forgiveness.  Dr Deacon regarded that as showing an awareness by the applicant that what he was doing was wrong.  Her Honour further reminded the jury that Dr Deacon had said were it not for that note he would have regarded the applicant as lacking the relevant capacity.

1. The trial judge then reminded the jury of the prosecutor’s submission that the jury might not be assisted ‘too much at all’ by the experts’ opinions:

[T]he opinions of the experts do not decide the matter.  It is for you to decide the matter on all of the evidence placed before you.  So it is that would have regard to what was said and done by the accused before and after the events at Players on Lygon on the afternoon of 13^th August 2010.

1. Later, the trial judge in summarising counsel’s closing argument returned to the Crown submission that the ‘best evidence of Mr Kosian’s mental state at the time of the shooting was the contemporaneous evidence’ and the prosecutor’s invitation to treat the record of interview as ‘critical’.  The jury were again reminded of the Crown argument that they ‘would not get a lot of assistance from the experts’ who were trying to reconstruct the applicant’s state of mind.

1. At the conclusion of the charge, senior counsel for the applicant requested a further direction.  He drew attention to the fact that as the jury had been told ‘it was up to them whether or not they accepted the opinion of the experts,’ the jury should also be directed that there would have to be ‘a basis in logic’ for them to reject those opinions.  Counsel noted that nowhere in his evidence did Dr Deacon say that at the time of the killings the applicant could reason with a moderate degree of composure.  The Crown opposed the further direction on the basis that the experts differed in their opinion.  The trial judge refused to give such a direction.

1. It is difficult to reconcile the submission of the prosecutor with the primary submission he had made to the jury that the expert evidence would be of no assistance to them.  Presumably, if he had thought there was a material difference between them that he considered supported the Crown’s contention, he would have relied upon it.  The fact that he did not do so, and studiously avoided any reference, in his closing address, to the concessions made by Dr Deacon in cross examination, reflected a recognition that there was no material difference between them as to the applicant’s state of mind at the time of the shootings.

1. Notwithstanding the prosecutor’s position in closing the case for the Crown, 0n the appeal the Crown maintained that Dr Deacon’s evidence was different to that of Dr Walton so that the judge was not required to direct the jury in the terms requested by the applicant’s counsel.  The Crown’s submissions cannot be sustained.

1. The trial judge was in my opinion correct to view the expert witnesses’ evidence as largely unanimous.  Both experts in substance gave evidence to the effect that the statutory test for mental impairment was satisfied.  Dr Walton gave strong and clear evidence that in his opinion, the applicant’s illness was such that at the time of the offending he was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his acts.  Dr Deacon, despite having altered his views as to the applicant’s perception of moral wrongness in light of the fact that he prayed for forgiveness the morning of the shootings, conceded in cross-examination that his conduct at the time of the shootings strongly suggested that he was incapable of reasoning with any degree of sense and composure.  Counsel for the Crown on the appeal acknowledged that there had been no re-examination of Dr Deacon on this point, and that the prosecutor had ignored this evidence in his closing address.

1. Even if the applicant’s prayers some time before the shootings could be interpreted as reflecting an understanding of moral wrongness of his proposed conduct — a contention which, for the reasons expressed by Dr Walton, may be considered to be implausible — that would in no way be determinative of the question.  As Dr Walton emphasised, the statutory test refers to the offender’s understanding of their conduct at the time that it occurs, rather than before or after.  Dixon J said in R v Porter:

He may have been sane before and he may have been sane after, but if his mind was disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence.[14]

[14](1933) 55 CLR 182, 187.

1. Had Dr Deacon not made the concession that he did in cross-examination that the applicant could not reason with composure at the time of the shooting, as the trial judge instructed the jury, the differences between his evidence and Walton’s amounted to little more than disagreement about the import of the prayer incident.  Their evidence was otherwise substantially to the same effect.  The complaints raised under the three grounds must be evaluated on that basis.

Ground 2 — directions to the jury

1. It is convenient to consider the second ground of appeal first.

1. Judges frequently instruct juries, as the trial judge here did, to the effect that they should approach expert witnesses like any other witness and are free to accept or reject their evidence.  It is of course for the jury and not the experts to determine the issues.  In directing the jury to the effect that they were not bound to accept the expert evidence, the trial judge was reflecting the general principle that neither a judge or jury is bound in law to decide a case in conformity with the expert evidence, even when it is uncontradicted.[15]  Whether the tribunal of fact will be justified in preferring their own view to that of the expert will depend upon the nature of the evidentiary issue.

   [15]         Dahl v Grice [1981] VR 513;  Ramsay v Watson (1961) 108 CLR 642;  Epperson v Dampney (1976) 10 ALR 227; Thurston v Todd [1966] NSWR 321.

1. Where mental impairment is raised as a defence, a jury must always consider not only the expert evidence but all of the circumstances of the case which will include the evidence of the commission of the alleged offence, the conduct of the accused before, during and after that time and any history of mental illness.  Consideration of all these circumstances may lead the jury to properly refuse to accept the expert evidence.  But the province of the jury to reject expert evidence is subject to important qualification.  The jury are not entitled to capriciously disregard the expert evidence.[16]  They should accept those opinions unless there are facts which entitle them to reject or differ from the opinions of the experts.[17]  If the expert opinion is on an esoteric subject quite outside common experience, then depending upon what facts are in controversy and the degree of unanimity between the experts, it may be perverse for the tribunal of fact to ignore it.

   [16]Hall v The Queen (1998) 36 A Crim R 368, 370-1 (Roden J).

   [17]R v Matheson (1958) 1 WLR 474, 478 (Lord Goddard); Bailey (1977) 66 Cr App R 31, 32 (Lord Parker CJ);  Walton v The Queen [1978] AC 788.

1. In criminal cases the failure to act upon uncontradicted expert evidence may lead to the setting aside of the verdict.[18]  Where expert evidence of mental defect or disability is all the one way, ‘it may be inappropriate and sometimes erroneous to direct a jury to the effect that the expert evidence is there to assist you, you are not bound to adopt it.’[19]  Connor and Franki JJ said in Taylor v The Queen[20] that the jury may not reject unanimous medical evidence ‘unless there is other evidence which can displace or throw doubt on that evidence’.[21]  In R v NCT,[22] Nettle JA referred with approval to the following observations of Smithers J in Taylor:

Where the fact in issue was the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason.  But if the jury are under the impression that on the relevant issue they must look at the ‘facts’ given in evidence other than by the experts as the source or primary source of proof or insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law.  And it appears to me that there was great danger that the impression of the jury would have been that referred to above.  If so, that would explain the verdict which it is reasonable to think was quite unexpected.[23]

[18]See for example Reg v Matheson (1958) 1 WLR 474;  Taylor v The Queen (1978) 45 FLR 343 (‘Taylor’).

[19]R v NCT (2009) 26 VR 247 (Nettle JA).

[20]Taylor (1978) 45 FLR 343.

[21]Ibid 364.

[22](2009) 26 VR 247.

[23]Taylor (1978) 45 FLR 343, 355.

1. In cases where insanity is the issue, a danger may thus arise that unless warned, the jury may fail to appreciate the significance of the expert evidence and assess the applicant’s conduct by attributing to him the kind of reasoning that a person without a mental illness would employ.[24]

   [24]Ibid;  Mizzi vThe Queen (1960) 105 CLR 659; R v Weise [1969] VR 953; R v Matusevich and Thompson [1976] VR 470; R v Gemmill (2004) 8 VR 242, 253 [50] (Eames JA).

1. The applicant submitted that as the competency and honesty of Dr Walton and Dr Deacon was not in issue and their evidence supported a finding that the applicant did not know that his conduct was wrong when he killed the deceased men, the trial judge should have acceded to the defence request that the jury be directed that the experts’ opinion should only be rejected if there was good reason to do so.  There was no difference between the experts that justified leaving the jury at large to discard their opinions without logical reasons for doing so.  The danger adverted to in cases like R v Weise[25] — that the jury would substitute their own lay reasoning for the opinions of the experts in the absence of an appropriate direction — was a very real one, particularly as this was precisely what the prosecutor had repeatedly urged them to do.

   [25][1969] VR 953 (‘Weise’).

1. In Weise, the trial judge’s charge to the jury had contained material which, in the opinion of this Court, could have led them to place greater weight upon their own intuitions than upon the strong evidence of two medical experts about the accused’s mental impairment, and its operation at the time of the offending with which he was charged.  Smith J said:

Putting the issue to the jury with this heavy emphasis upon their right, and duty, to act upon their own opinions if those differed from those of the experts given in the witness-box involved, in my view, a substantial risk that the jury would be led to overlook the fact that the experts had said that the history of the appellant’s acts and words contained nothing inconsistent with their conclusion that he was legally insane;  and to overlook, also, the consideration that, if the jury were to act upon their own opinions, based upon that history, they would be rejecting or ignoring that part of the experts’ evidence, and would be acting upon their own laymen’s views as to how the minds of insane persons work.[26]

[26]Ibid 972.

1. The danger of applying the standards of commonsense and rationality used by sane rather than mentally ill people was emphasised in the joint judgment in Mizzi v The Queen.[27]  In that case the prosecution sought to rely upon the fact that the accused had attended at a police station immediately after he had killed a woman as revealing that the accused had an awareness that what he had done was wrong.  Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ said:

The reasoning upon which the cross-examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from the reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane.  In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons.[28]

[27](1960) 105 CLR 659.

[28]Ibid 663.

1. Where the opinions between experts in cases where the defence of mental impairment is raised are substantially to the same effect, the medical opinions are accepted as honest and competent, are central to the accused’s case and are based upon facts satisfactorily established, then unless the jury are not persuaded that steps of reasoning in the formation of those opinions have been soundly taken, or there is evidence before them which logically affects the validity of the opinions expressed, the expert opinions must be afforded very considerable weight as proof of the state of mind of the accused at the critical time.[29]  A direction which sufficiently drew these considerations to the jury’s attention was required in this case, even if it could be said that the views expressed by the experts differed in a material respect.  The prosecution’s assertion at trial and on appeal that the experts were not in accord on every point in their evidence did not provide a justification to refuse the direction sought.  

   [29]See Taylor (1978) 45 FLR 343; Mizzi v The Queen (1960) 105 CLR 659 (‘Mizzi’);  R v Matusevich and  Thompson [1976] VR 470 (‘Matusevich’);  Taylor.  For a survey of the authorities on this point see R v Gemmill (2004) 8 VR 242, 252–4 [44]–[56].

1. A prosecutor may challenge all of the expert evidence that is substantially to the same effect where there is a reasonable view of all of the circumstances inconsistent with those opinions.  But before embarking upon such a submission, the Crown should be mindful of the dangers of inviting the jury to apply to the acts of the accused the standards of commonsense and rationality used by sane rather than mentally ill people.  Where the prosecutor pursues such an argument, it should be made clear what facts should lead the jury to doubt the validity of the expert opinions that the applicant was in the relevant sense mentally impaired.  The jury should not lightly be invited to put aside the evidence given by reputable expert witnesses whose integrity was not impugned and which was based upon uncontested facts.

1. The prosecution submission that the jury could approach its task by discarding the expert evidence as being of ‘no assistance’, exposed the jury to the danger discussed in Weise.  As a result of the extreme position adopted by the prosecutor, the trial judge was placed in a difficult position.  She was obliged to remind the jury of the Crown’s primary argument.  That should have been accompanied by a warning or caution as to the danger of assessing the undisputed evidence of the applicant’s conduct prior to and subsequent to the shootings without the benefit of the expert opinions on those matters.  For example, the opinions of the experts as to the applicant praying for forgiveness in the morning before the shooting could have assisted the jury.  Dr Walton opined that praying was not necessarily inconsistent with mental impairment and a lack of understanding of moral wrongness.  Dr Deacon considered that the praying showed the applicant considered his actions as morally wrong, as per God’s moral barometer, but that his plan to kill the victims was nonetheless morally justified.

1. Instead the jury were encouraged to draw a particular inference from that event by relying upon their own imperfect understanding of the workings of the mind of a man with paranoid schizophrenia.  There was a substantial risk that the jury, as they were invited to do, without reason residing in logic, discarded the expert evidence in favour of their own intuitive, commonsense understanding of how the mind of an insane person works and how the acts of the applicant should be interpreted.

1. The trial judge fell into error in not giving the direction sought.  Such a direction will be desirable if a party invites the jury to put aside all the expert evidence which is substantially to the same effect or the trial judge considers there to be some appreciable risk that the jury may do so.  The expert evidence ordinarily provides some insight as to whether the conduct of the accused may be that of a mentally impaired person.  If there is a risk of that evidence being disregarded, the jury should ordinarily be alerted to the dangers of applying the standards of commonsense and rationality used by sane rather than mentally ill people.

1. I would uphold this ground. 

Ground 3 — the judge’s answer to the jury’s question about s 20(1)(b)

1. During its deliberations, the jury asked the following question of the judge: ‘In regards to s 20(b), could you please clarify the definition of ‘wrong’? Does it need to be morally and legally wrong or just one or the other?’ Her Honour’s response was as follows:

The test under s 20(b) of the Crimes (Mental Impairment) Act is not directed to a consideration of moral or legal concepts or consequences … The test in s 20(b) is concerned with the capacity of the accused to reason … That is, whether it is likely or not that he could reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong and it is in that sense that the law defines the concept of wrong. … So, we are not concerned with considerations or concepts of moral or legal wrongness. … the test is concerning the capacity to reason.

1. The answer which the trial judge gave the jury was settled with counsel for both parties.  No exception was taken to the answer provided to the jury.

1. On appeal, counsel for the applicant in oral argument submitted that the judge’s answer to the jury’s question would have had the effect of entirely removing questions of legality and morality from their consideration of the s 20 test, and would therefore have prevented them from taking the expert evidence about the applicant’s belief that his actions were morally justified into account. It was submitted that this would have removed one of the considerations upon which an assessment of the statutory test must necessarily have rested.

1. When assessing whether an offender fits within the criteria set out in s 20(1) of the Act, the jury must assess the nature and extent of any mental illness that existed at the time of the offending conduct. An evaluation must then be undertaken of how the illness affected the offender’s reasoning capacity, his understanding of what would be ‘wrong’ and whether that understanding accorded with reasonable standards. The expert evidence occupied a critical position in such an analysis. Both expert psychiatric witnesses acknowledged that the applicant had some limited appreciation of the legal consequences of his actions. They noted that the applicant felt morally justified in killing his victims.

1. It is established that an understanding of legal wrongness on the part of the accused will not, on its own, preclude the s 20 defence from being made out. As the High Court noted in Stapleton:

[T]he truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right and wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable.  But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right and wrong, (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity), he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.[30]

[30](1952) 86 CLR 358, 375.

1. The decision of this Court in R v White[31] also affirms that the s 20 test is ‘not directed to moral or legal concepts … but to the accused’s awareness that reasonable people would disapprove as wrong the actions he is performing’.[32]  The judge’s answer to the jury question drew upon that formulation.

   [31](2003) 7 VR 422 (‘White’).

   [32]Ibid 451. See also the Bench Notes in the Judicial College of Victoria, Criminal Charge Book, 8.8.1 — ‘the test is not whether the accused’s acts were in fact wrong, or that [the] accused knew that his/her actions were wrong according to the law or morality’ (emphasis added).

1. Although the test is concerned with whether the accused was aware that reasonable people would regard his conduct as wrong, his comprehension as to whether his actions were morally or legally wrong is not irrelevant to the evaluative task.  Neither Stapleton nor White supports the contrary proposition.  It is customary for experts to analyse wrongness in legal and moral terms, because they are two of the criteria to which one will ordinarily have recourse when attempting to establish whether conduct is wrong. 

1. The trial judge answered the jury question in the manner approved by the parties.  However the evaluative task of determining the applicant’s understanding of what would be ‘wrong’ would in part be informed by his perceptions of moral and legal wrongness.  There was uncontested evidence to the effect that the applicant regarded himself as morally justified in killing the two victims, and assumed that his actions would be vindicated after a period of time.  To exclude consideration of his perception of moral wrongness had the potential effect of removing relevant and important evidence from the jury’s evaluation.  The experts’ conclusions as to the applicant’s understanding of ‘moral or legal wrongness’ were an integral part of their opinions, the answer to the jury question gave rise to a substantial risk that the jury would assume that the expert opinions would therefore have to be disregarded or would be of little assistance.

1. The danger that the jury would so approach the expert evidence was compounded by the fact that the prosecution had already invited the jury to disregard the central evidence of the two expert psychiatric witnesses.  The jury would therefore have been reliant upon the applicant’s conduct before and after the shootings and applied their lay opinions as to whether that was how an insane person would behave.

1. This ground is made out.  As I am also persuaded that the verdict is unreasonable and unsafe, it is unnecessary to consider the consequence of the errors the subject of grounds 2 and 3. 

Ground 1 — The verdict was unreasonable- it was not open to the jury to reject the defence of mental impairment

1. The test by which a court of criminal appeal must determine whether a jury verdict is unsafe and unsatisfactory — or, as that ground is expressed in the appeal statute, ‘is unreasonable or cannot be supported having regard to the evidence’[33] —has been stated and restated many times since the High Court decided M v The Queen.[34]  For example, in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test as follows:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[35]

[33]Criminal Procedure Act 2009 s 276(1)(a).

[34](1994) 181 CLR 487.

[35](2007) 230 CLR 559, 596–7.

1. Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them.  The verdict will only be interfered with on appeal if the applicant can demonstrate that, allowing for the special advantages that the jury had, no reasonable jury could properly have reached it upon the evidence before them. - # 

1. The applicant submitted that the jury’s verdict was unreasonable, as the defence of mental impairment could not reasonably have been rejected.  As his counsel submitted, the applicant felt morally justified in killing the deceased men.  He shot them in a public place.  He was desirous that police attend.  He waited until they did.  He explained his behaviour in great detail to the police and those who assessed him.  He believed that others would understand why he had killed the victims once they had heard his explanation.  He believed he would ultimately be exonerated.  All this, it is submitted, is referable to his serious psychiatric illness.

1. The evidence of Dr Walton and Dr Deacon strongly supported a finding that the applicant could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.  The multiple hallucinations under which Dr Walton found the applicant was labouring, in addition to his delusional beliefs supported such a conclusion.  The experts’ evidence regarding the applicant’s state of mind at the time of the shooting was substantially the same.  The applicant submitted with some force that the likely means by which the jury could have reached their verdict was to ignore the body of expert evidence - an impermissible step, given that both witnesses were competent experts who based their opinions upon facts satisfactorily established.

1. The respondent submits, as noted above, that the expert witnesses’ evidence was in conflict, and that Dr Deacon’s concession in cross-examination formed only part of the entirety of his evidence — evidence which the jury were entitled to interpret as they saw fit.

1. The jury verdict is to be understood in part as a consequence of the trial judge’s directions the subject of grounds 2 and 3.  Giving proper regard to the applicant’s mental illness and the opinions of the experts, based upon the facts which are not in dispute, I am satisfied that the jury was bound to find the defence of mental impairment made out.  Dr Deacon’s examination in chief (upon which great reliance was apparently placed on the appeal)[36] was inconsistent with the concession he made in cross-examination.  The applicant’s prayers early on the day of the shooting should have made no difference to an assessment of the applicant’s mental state at the time of the offending itself.  Dr Deacon conceded that after reading Dr Bell’s note he had never spoken to the applicant about his prayers, and was therefore not well placed to make assumptions about its implications as to his state of mind at the time of the shooting.  The record of interview was so temporally removed from the offending itself as to be irrelevant to an assessment of his state of mind at the time of the shootings, as per the statutory test.  Having regard to the expert evidence as to the manner in which a paranoid schizophrenic can plan events logically, and appear quite normal, whilst being in the grip of powerful delusions, none of the events before or after the shooting cast doubt upon the expert opinions and the likelihood that the applicant did not know his conduct was wrong at the time of the shooting.

   [36]It was suggested at the appeal hearing — though the point was not raised below — that the jury may have preferred the evidence of Dr Deacon to that of Dr Walton because the latter had based his opinion upon a mistaken factual basis, namely the existence of hallucinations, to which Dr Deacon had made no reference.  However, Dr Deacon did not have access to the information about the hallucinations:  the quality of expert opinion evidence is to be assessed by reference to the factual basis upon which is rests — Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611. Given that this matter was not even mentioned by the prosecution at trial, it seems highly unlikely that the jury would have based their verdict upon the difference.

1. For these reasons I allowed the appeal and substituted a finding that the applicant was not guilty by reason of his mental impairment.

The appeal against sentence

1. The applicant appealed against his sentence on the following ground:

The non-parole period imposed, 20 years’ imprisonment, is manifestly excessive in light of:

·The nexus between the applicant’s psychiatric illness and his conduct which:

oReduced his moral culpability;

oAffected the assessment of just punishment;  and

oConsiderably moderated the application of general and specific deterrence;  and

·The applicant’s prospects for rehabilitation.

1. Had the defence of mental impairment not been made out, I would not have granted leave to appeal against sentence.

1. The applicant’s sole ground of appeal is that the non-parole period was manifestly excessive, in light of the relevant Verdins[37] principles and his prospects of rehabilitation.  A twenty year non-parole period for two execution style murders, undertaken in broad daylight and in the presence of a number of innocent witnesses, can in no way be regarded as excessive.  Accepting there to be some connection between the applicant’s mental condition and the offending conduct, the sentences imposed were well within a sound exercise of the sentencing discretion.  

The sentencing judge gave appropriate and considerable weight to the applicant’s psychotic illness, which was active at the time of the offending, and took into account his prospects of rehabilitation in a manner which was entirely open to her.[38]  Her Honour indicated that a term of years, rather than life imprisonment, would be appropriate in light of the Verdins principles and other matters in mitigation;[39] an entirely appropriate approach, which makes clear that those mitigatory factors received prominence in the instinctive synthesis.

[37]R v Verdins (2007) 16 VR 269.

[38]R v Kosian [2010] VSC 426, [35]. Her Honour described the applicant’s prospects of rehabilitation as ‘not without hope’, but noted that he did present a continuing risk to the community.

[39]Ibid [37].

COGHLAN JA:

1. I agree that that the appeal be allowed and that the applicant was not guilty because of mental impairment for the reasons expressed by Redlich JA.

DIXON AJA:

1. I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA with which I respectfully agree. I joined in the orders allowing the appeal and substituting a finding that the appellant was not guilty by reason of his mental impairment for the reasons that his Honour has stated.

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