R v De Voss

[1995] QCA 518

IN THE COURT OF APPEAL	[1995] QCA 518
SUPREME COURT OF QUEENSLAND

C.A. No. 229 of 1995

Brisbane

[R. v. de Voss]

THE QUEEN

v.

DAMIEN DE VOSS

Appellant

Davies J.A. Pincus J.A. Moynihan J.

Judgment delivered 24/11/1995
Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED. THE VERDICT OF MURDER IS SET ASIDE AND A VERDICT OF MANSLAUGHTER IS SUBSTITUTED. A SENTENCE OF NINE YEARS IMPRISONMENT IS IMPOSED.

CATCHWORDS:	CRIMINAL LAW - MURDER - CONVICTION - whether verdict unsafe and unsatisfactory; diminished responsibility; whether uncontradicted expert evidence; whether conduct of victim's mother in Court caused trial to miscarry. R. v. Morgan; ex parte Attorney-General [1987] 2 Qd.R. 627 R. v. Tumanako (1992) 64 A.Crim.R. 149.
SENTENCE - predisposition to depression impacting on whether recommendation for early parole.
PRACTICE - pre-trial exchange of reports. R. v. Files [1983] 2 Qd.R. 153 R. v. Pateman [1984] 1 Qd.R. 312.
Counsel:	Mr. T. Rafter for the appellant Mr. P. Feeney for the respondent
Solicitors:	Gabriel Ruddy & Garrett for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	13 October 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 24th day of November 1995

The appellant was convicted of murder on 18 May this year. This is an appeal against that conviction on the ground that the jury’s verdict was unsafe and unsatisfactory. The appellant submits that a verdict of manslaughter should be substituted. It is common ground that if this appeal succeeds a verdict of manslaughter should be substituted.

1.          The main question in the appeal

The appellant strangled Nicola Christmas on 18 July 1994. She died on 22 July from consequential injuries. At trial, the defence case was that when he strangled the deceased, the appellant was, within the meaning of s.304A Criminal Code, in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing or to control his actions or to know that he ought not do the act of strangulation.

Two psychiatrists gave evidence to the effect that the appellant did come within s.304A. The question before this Court is whether the jury’s failure to accept this evidence rendered their verdict unsafe and unsatisfactory.

Where there is expert medical opinion to the effect that an accused satisfies s.304A then a verdict which adopts a contrary view will be set aside on appeal as being unsafe and unsatisfactory if there is no evidence which casts doubt upon the correctness of that medical opinion: R. v. Morgan ex parte Attorney-General [1987] 2 Qd.R. 627; R. v. Tumanako (1992) 64 A.Crim R. 149. In determining whether there is evidence which casts doubt upon the correctness of expert opinion, regard must be had to all of the evidence, including the factual basis relied on by the expert witnesses for the purposes of their opinion and whether the expert opinion is unanimous: R. v. Michaux [1984] 2 Qd.R. 159 at 164 per Connolly J; R. v. Morgan at 630 per McPherson J.

Thus, the question here is whether there is any evidence which casts doubt on the correctness of the medical opinion, thereby entitling the jury to return a verdict contrary to it. The Crown submissions in relation to this were essentially as follows:

(a)         the doctors reached their concurring medical opinions via different reasoning processes, thereby entitling the jury to reject both of their opinions; and

(b)        there was a body of evidence which called into question the factual basis of their opinions as to:

(i)	the existence or extent of the appellant’s depressive illness;
(ii)	the underlying personality of the appellant; and
(iii)	the appellant’s lack of capacity to control his actions at the time of the killing.

In reaching a medical opinion that an accused satisfies s.304A, there must necessarily be evidence by the expert witness that at the time of the act or omission in question, the accused suffered an abnormality of mind, that this abnormality of mind was caused by one of the matters specified in s.304A and that it was such as substantially to impair the accused’s capacity to know that he or she ought not to do the act, or to control his or her actions, or to know that the act or omission ought not to be done. If there is any reasonable basis for discerning any difference in substance between the opinions of the two psychiatrists as to any of these requirements, then it may be that the jury was entitled to reject their evidence. And if the factual basis was not established for the opinions expressed in respect of any of these requirements or there was evidence which called into doubt any of those opinions then again the jury may have been entitled to reject their evidence.

2.          Alleged differences in reasoning by the doctors

Dr. Apel diagnosed the appellant’s symptoms at the time of the killing as being caused by a major depressive illness. He considered that this illness arose from disease or injury which was a result of the stress of his relationship with Ms. Christmas when added to his particular personality attributes such as his negligible capacity to cope with conflict or difficult situations, his immaturity and the fact that he was at the lower end of normal intelligence. The doctor considered that his personality made him especially susceptible to depression and vulnerable to external stresses. He concluded that as a result of these factors, the appellant, at the time of the killing had a substantially impaired ability to control his actions.

Dr. Moyle also said that the appellant was suffering from a depressive illness at the time of the killing. He considered that this condition arose out of injury which he termed as an adjustment disorder which was caused by a combination of external and internal causes. He relied essentially on the same factors as did Dr. Apel in this regard. He expressly agreed that any differences of opinion which may have been held by Dr. Apel and him were ones of mere terminology. He agreed that as a result of these factors, the appellant, at the time of the killing, had a substantially impaired ability to control his actions.

The jury was therefore presented with unanimous expert opinion as to the appellant’s state of mind at the time of the killing and as to the cause of this state of mind. Indeed the trial Judge directed them as much. It follows that the only basis on which the jury was entitled to reject the psychiatric evidence was that there was reason to doubt the accuracy of the factual basis on which the psychiatrists arrived at their medical conclusions; it was not suggested to this Court that their honesty or competence were challenged at trial.

3.          The factual basis for the opinions of a depressive illness

The symptoms or behavioural characteristics on which the doctors relied in arriving at their opinions that the appellant suffered from a depressive illness were as follows: the appellant’s overeating to assist his sleep, general bingeing on junk food, thereby gaining about 40 kg in weight, difficulty in thinking clearly and in concentrating, diminishing motivation generally and for exercise, diminishing pride in his appearance, loss of ability to look after his own health, periodic crying, general difficulty in controlling his emotions, sense of worthlessness, growing isolation from his friends and family, feeling of hopelessness and of a loss of hope for the future, sense of overriding unhappiness, loss of self esteem and loss of control over his life.

Below is a brief outline of the facts which were given in evidence and which, in our view, provides ample support for the fact that the appellant displayed these symptoms on 18 July 1994 and in the months leading up to that time.

First, evidence given by the appellant himself supports the factual basis for the doctors’ medical opinion. He gave evidence as to his general behaviour and state of mind in the months leading up to July 1994 and also as to the effect that his relationship with Ms. Christmas had on his behaviour and state of mind.

He told the Court that about three years before her death Ms. Christmas and he met at their common place of work and commenced going out together. He said that initially their relationship was good and that they often wrote each other love letters. He said however, that difficulties soon arose between them partly due to the fact that he felt uncomfortable with her family and that she did not like his small group of friends, the Freemans. He said that Ms. Christmas started to accuse him of being with his friends rather than with her. He said that she told him that she did not want him to have time with his friends and that she expected him to be at home every night after work for her convenience. He said that this hurt him. He told the Court that from about 1992, he began trying to end the relationship and that he had told Ms. Christmas that he wanted to end it. He said that she persisted with the relationship notwithstanding this.

In 1993 he moved out of home and into a flat. He gave evidence that Ms. Christmas had suggested that he move out with her because she said that they were right for each other. He said that at this time he was having difficulty communicating with his father and that though he did not want to live with Ms. Christmas, she made moving out appear to be an attractive option. He said that he was still maintaining his stance that he did not want the relationship to continue. In any event, though she paid him a lump sum for up front advance in respect of a half share of the rental, she did not move into the flat with him.

After about five months in the flat the appellant returned home to his parents. He gave evidence that from this time on especially, he began missing ordinary meals and over-eating on junk food. He said that this was particularly so in the six month period before the killing because there was “so much tension and anger”. He said that over-eating helped him to get to sleep. He said “I just would find myself eating too much because I was getting stressed out because of - I couldn’t get rid of Nicola and she made me upset and I ate too much. I could get to sleep better and I would wake up next day and hopefully the next day would be a better day.” From the time he started going out with Ms. Christmas until her death his weight increased from a fit 105 kg to a grossly overweight 145 kg.

He said that during the period that they worked together, which period began when they first started going out together and ended about the middle of 1993, Ms. Christmas would phone him on the intercom at work and demand to see him and that this embarrassed him. He gave evidence that the relationship continued to deteriorate during this time and that he did his best to end it on numerous occasions. He said that she persisted in trying to continue it by giving him presents and promising others, ringing him up, leaving messages for him and bringing him food. This continued up until 18 July 1994. Although the appellant said that his general and overriding attitude towards her was one of trying to end the relationship, he did accept that some of her conduct caused him to be well disposed towards her from time to time and that occasionally he would give in to seeing her.

He said that she would frequently follow him and his friends wherever they went. He said that when he and his friends were watching a video at his house, Ms. Christmas would often just come in and sit there and say nothing and sometimes she would wait outside the door and apparently listen to the conversation and that other times she would sit outside the windows of his room. He said that he always knew when she was close by because he could smell her distinctive perfume. He said that these events happened quite often. He admitted that sometimes there would be a confrontation between him and Ms. Christmas in which he would try physically or by words to make her leave. He said that his friends would then leave. The appellant told the Court that she often followed him home from work and that when he and his friends went on trips to the Gold Coast, she often followed in her car. He said that he felt that she was “tracking” him down. He said that from time to time when he was at his friends, the Freeman’s house, they could see her car parked up the road and that as soon as he left, she would follow him in her car. He said that his friends saw this happen. He said that she chased his friends away from him and that he had nobody left.

He gave evidence that Ms. Christmas often wrote away for job applications on his behalf, in circumstances where she did not have his consent or knowledge. He said that he told her “You’ve got to stop doing this. You can’t be me and I can’t apply for these jobs anymore now because you’ve done it.” He said she was “destroying my life ... I felt sort of like useless ... I just felt hopeless.”

The appellant gave evidence that Ms. Christmas wrote away to his biological parents without his consent or knowledge: the appellant was adopted as a child. He said that she continued to do this despite the fact that he told her not to do so. He said that on the night of 26 June 1994, when he was home watching television, Ms. Christmas arrived unexpectedly. He told the Court that she brought with her a letter written from his biological mother which she told him was a reply to a letter that she had written to his mother. According to the appellant, he said:

“What are you writing away to my parents for? My other people for? I told you not to do that. You can’t keep doing that. You can’t be me. You are doing things that I don’t want you to do. You’ve got to stop doing it.”

He said that he was really hurt that she had done it again and said that it frustrated him so much that he “just could not stop her being me and doing things that are me ... It made me feel like I had no control over my life.” As a result of the events which occurred that night, referred to in more detail later, the appellant was charged with assaulting Ms. Christmas. It was a condition of his release on bail that he not contact Ms. Christmas. When interviewed by police that night he said to them “Can’t you give me your gun and I’ll kill myself? I’ve fucking had enough.” It was on that night also that he told Mrs. Christmas to keep her daughter away from him or he would kill her. On a previous occasion the appellant had gone to the Christmas’ home with Mark Freeman where he had told Mrs. Christmas that if she did not keep her daughter away from him her daughter was going to get seriously hurt. This occurred in late 1993.

Notwithstanding that the appellant was charged with assault and that it was a condition of his bail that he not contact Ms. Christmas, the appellant gave evidence that she continued to contact him at home and at work and also to drive by his house and leave messages for him. In consequence of such persistence, on 15 July, the appellant agreed to go to the Gold Coast with her for a pizza. This was something which he had, in the past, regularly done with his male friends and which he enjoyed. He said that he was feeling depressed and lonely and therefore agreed to go on condition that she leave him alone after that. He gave evidence that whilst they sat on the beach she ‘played with me’ sexually and that he allowed her to. However, at the end of the night the appellant again sought an assurance from her that she would leave him alone thereafter. He said that she agreed to it. He said that he finally felt as though he had succeeded in ending the relationship.

That Ms. Christmas continued to contact him after he had indicated to her that he wanted to end their relationship, that she interfered in his personal affairs and with his privacy, that all of this caused him considerable embarrassment and upset and that he was in an observably depressed state was also proved by the evidence of other witnesses and, to some extent, by letters from Ms. Christmas which were tendered.

Mark Freeman gave evidence that Ms. Christmas did not approve of the appellant associating with him and his family. He recalled going with the appellant to the Christmas’ home and witnessing the appellant asking Mrs. Christmas to please keep her daughter away from him because he was not getting any peace and that if they did not keep her away her daughter was going to get seriously hurt. Notwithstanding this, he said that Ms. Christmas sought them out later that night at a place where they frequently went.

He confirmed that he and the rest of his family stopped seeing the appellant in late 1993 because, whenever they saw Ms. Christmas, she would “basically take it out on us, and we just didn’t want that anymore.” He got the impression that she wanted the appellant’s full attention. He gave evidence that Ms. Christmas often made bogus phone calls to his family. He confirmed that she often followed them when they went out with the appellant and that she would often stay some distance away, just listening to their conversation and not speaking. He said that the appellant was embarrassed by this and became very quiet. He told the Court that she once parked outside his family’s house for about an hour when the appellant was not there and then just drove away. He gave evidence that the appellant was trying to break off the relationship with Ms. Christmas and that she would not let go.

Mrs. Amos, a supervisor at the appellant’s place of work, gave evidence of Ms. Christmas’ harassment of the appellant and of the effect that this had on him. She said that Ms. Christmas would often call him over the public address system at work and that if he did not respond would come down to the factory floor and seek him out. She noticed a deterioration in his condition. She said that during the months leading up to the killing he became “more withdrawn” and that he wasn’t “quite as sharp as he was”. She referred to “his general demeanour, like the sag of the shoulders, he was more serious, more depressed.” She said that there would be big sighs. She noted that “from the beginning of the year on it just sort of progressively got worse, he got more and more down, he would come and, you know, express his concern about the situation.” She said on one occasion, only a couple of weeks before mid July 1994, she had a conversation with him in which he was very close to tears. In this conversation he said words to the effect that he didn’t know what he was going to do and that his life was being ruined. She said that he told her that even his friends didn’t want to know about him and that he was clearly very upset about this.

Mr. Diamond, the production manager at the appellant’s place of work, gave evidence that during the time that Ms. Christmas was working in the same building as the appellant, she would often call for his presence over the loud speaker, and demand to see him. He said that this caused the appellant annoyance and visible embarrassment in front of his work mates. He also gave evidence that Ms. Christmas continued phoning the appellant regularly at work even after she had instituted the prosecution against him for assault.

The appellant's father gave evidence of daily telephone calls by Ms. Christmas to their house at least over the last 12 months of her life and frequent visits during this period. He spoke of the appellant’s substantial increase in weight, changing “from a fit athletic type person into a fat person” over the couple of years before the killing. And he told the Court of other observable deterioration in the appellant’s appearance; he said that during this period “Damien couldn’t care less” about his appearance or general hygiene; he did not eat meals cooked for him; he did not communicate with him or Mrs. de Voss. He said that in the period of six months before the killing, the appellant “appeared to be under a very severe circumstance of depression” and that he thought that this worsened towards the middle of 1994. He said that communication between the appellant and the family was “almost at a standstill” at this time.

The appellant’s mother gave evidence that “when Damien first met Nicola, he was superbly fit and he took great pride in his appearance” but that gradually he started gaining weight. She said that he lost all motivation and that he did not take pride in his appearance anymore. She told the Court that he did not eat with the family anymore and that when she would go down to his room to speak to him about this, he would say “I know Mum. Mum, you don’t know what it is like. I don’t know what to do” and have tears streaming down his face. She gave evidence that he told her that he would pray every night that “God will let me die”. Mrs. de Voss said that she occasionally found him crying alone and said that she was worried that he might take his own life. She said that all this became much worse through 1994. “He just had no purpose in life anymore. He was like a spectator instead of a participant in his own life. He just didn’t know what to do ...”

Mrs. de Voss said that on several occasions she heard the appellant tell Ms. Christmas to go away and leave him alone; that they were finished. But she said that she kept coming back. She also gave evidence of Ms. Christmas’ frequent visits to their home including, when the appellant was not there, entering and leaving notes for him in his room.

She gave evidence that he lost contact with his friends because it just became too burdensome; he was never allowed to see them alone. She said that by mid-1994 “he was a total wreck. I was watching the disintegration of the human spirit before my very eyes and I didn’t know what to do about it.”

Letters which were written by Ms. Christmas were tendered and they tend to corroborate much of the appellant’s evidence as to their relationship. The appellant said that Ms. Christmas had written him over 100 letters but that he had burnt most of them when, at one stage, he thought that he had succeeded in ending the relationship. The few letters which remained were tendered. One of these letters provides evidence that Ms. Christmas did write to the appellant’s biological parents. On a note which was tendered but which Ms. Christmas did not actually give to the appellant, is a series of points which must have been written some time after 26 June 1994. This note gave the appellant the option of marrying her or being charged because “you can’t win”, and it showed that she had been trying very hard to contact the appellant. The appellant gave evidence that he and Ms. Christmas had a conversation as to the matters in this letter. Other letters have a very angry tone, telling him that she has been looking everywhere for him, accusing him of having someone else, accusing him of being with the Freemans, telling him that he is fat just like the Freemans, that his friends are idiots, that he will suffer the consequences for his acts, that he is never with her, that the police will get him and telling him that he is useless.

The essential facts upon which the psychiatrists relied for their opinions were therefore proved not only by the evidence of the appellant but also by other evidence. That evidence also supported the reliability of the appellant’s evidence.

Despite this body of evidence, the Crown submitted that there was evidence which threw doubt on the symptoms of depressive illness which the doctors said that the appellant had at the relevant time. The Crown relied on the fact that the appellant, in the months leading up to the killing, continued to derive satisfaction from his work and the fact that the appellant smiled at one of the workers on the afternoon of the killing.

When these facts were put to the psychiatrists in examination and cross-examination, both of them pointed out that they were in no way inconsistent with the diagnosis of a depressive illness. Dr. Moyle said that such facts were very normal in a person in a state of depressive illness:

“Depressed people often smile and go around socially on a superficial level relating all right in certain situations, but they might have no energy left to do anything else ...”.

He also gave evidence that the appellant’s state of depressive illness, though sufficiently significant to substantially impair his control, was not so grave as to make him at all times unreactive to external stimuli. And as Dr. Apel said:

“... his work was the only thing in his life that required no great thought or decisions ... It is comprehensible that Mr. de Voss could be sort of cheery to a degree within the work framework, because this was the easiest part of his life, he could work, people were happy with his work ...”.

Though the Crown also relied on some other evidence as tending to cast doubt on the factual basis of the doctors’ opinion that the appellant displayed the symptoms of a person suffering from a depressive illness, such as that he was not taking any medication, when viewed in the context of the evidence as a whole, it could not be said to do so.

In making the submission that there was evidence which called into question the extent of the appellant’s depressive illness, counsel for the Crown relied on evidence which he acknowledged supported the existence of a depressive illness and which supported the factual basis on which the doctors relied. In our opinion, there can be no basis to this part of the submission: this is not evidence which calls into question the factual basis on which the doctors arrived at their opinion: Tumanako; Morgan.

4.          The factual basis for the opinions of the appellant’s underlying personality. It will be recalled that Dr. Apel considered that the appellant had negligible capacity to

cope with conflict or difficult situations, that he was immature and was at the lower end of normal intelligence. Dr. Moyle considered that the appellant was unambitious, anxious and avoided conflict situations.

Both doctors formed these conclusions from a combination of the appellant’s history, the manner in which he related in the interviews and the impression given by his parents. In relation to his history, both doctors relied on the fact that he had a narrow range of interests, though he mixed with various people he made few friends and those that he did make were younger than he was, he was conformist and eager to please authority, he avoided risks, he was content with the same circle of friends and same interests and with his unchallenging job, and the fact that, until his relationship with Ms. Christmas, he had not had a girlfriend. In our opinion, these facts were supported by the evidence and none of these facts was contradicted by evidence of other witnesses or by the appellant. The evidence which the Crown submitted might tend to question it, does not, in our opinion, do so. And in our opinion, no reasonable jury could have thought so.

The other aspect of his personality which the doctors discussed, namely that he had difficult and unhappy teenage years, is not important, and is not necessarily inconsistent with the evidence given by other witnesses who said that he was a happy and funny person. Most witnesses who gave evidence knew him only after his teenage years. His mother however, did give evidence that he was “always a happy-go-lucky young, laid back ... young man”. His mother did say that she would not reject the notion that he was immature; she said that he has not yet reached his full potential because he does not have sufficient confidence in his own abilities.

5.          The factual basis for the opinions that, on 18 July, the appellant’s capacity to control his actions was substantially impaired

The psychiatrists’ opinions were that this impaired capacity, in the context of very powerful emotional feelings, was caused by the effect of the depressive illness upon the appellant’s underlying personality. The factual basis was therefore largely that already referred to under the previous two headings. But in reaching their opinions they also relied on the apparently increasing violence by the appellant towards Ms. Christmas and the events of 18 July. These were also relied on by the Crown for alternative submissions that there was evidence which cast doubt upon these opinions.

The prior violence of the appellant towards Ms. Christmas was relied on for the submission that the jury was entitled to infer that, on this occasion as on others, the appellant had simply lost his temper and this time had gone too far. The events of 18 July, together with previous threats and the earlier acts of violence, were relied on for the alternative submission that the jury could have inferred that the strangling was deliberate and cold blooded.

These submissions did not involve a contention that there was evidence which cast doubt on the correctness of the psychiatrists’ opinions but one that the jury was entitled to substitute its opinion as to the explanation for the appellant’s conduct for that of the psychiatrists. In our view such a course is impermissible. However because the evidence relied on was also relied on by the psychiatrists it should be referred to.

The first two episodes of violence towards Ms. Christmas occurred at the appellant’s work whilst Ms. Christmas was still employed by the same employer as the appellant. On the first occasion, the appellant said that he was about to go out on his delivery round when Ms. Christmas sought to bar his way. The appellant tripped her sending her to the floor. The second episode occurred when he found her sitting in his car which was parked outside work. He asked her to leave. When she refused there was a scuffle during which she grabbed his testicles whereupon he pushed her out onto the pavement. The third occasion occurred outside the appellant’s house. The appellant was about to go out with his friends when Ms. Christmas demanded that she go with them. She held on to the appellant’s car roof rack, apparently in an attempt to restrain him from driving off. Nevertheless he did so.

What appears to be the fourth occasion, and which seemed to have occurred about two
months prior to the killing, involved the appellant driving Ms. Christmas out into the bush and
actually placing his hands around her throat with the intention of strangling her but desisting.
The fifth occasion was briefly mentioned above. It occurred on 26 June 1994. After Ms.
Christmas had shown him the letter from his biological mother, he picked up some scissors, told
her to sit in the chair and told her that he was going to cut her hair off. She had long blonde hair.
She then screamed and backed away and his father came down the stairs, told her that she was
not supposed to be there, that he had told her not to come around, that when she came around she
just caused trouble and to get out. The appellant then decided to take her home. He grabbed her
by her shirt and pushed her out to his work truck. He put her in the truck and drove her to her
own home. When they arrived at her home he pulled her from the truck and took her in a
headlock to the front door and threw her on the floor saying to her mother that he would kill her
daughter if she did not keep her away from him. He was later charged with assaults on Ms.
Christmas and her mother that night.

The final act of violence by the appellant towards Ms. Christmas occurred on 18 July 1994 when he strangled her. The events of 18 July were described by the appellant.

He gave evidence that at about 3.00 on that afternoon he left work in his car. He said that after having extracted her agreement not to see him again the previous Friday, he was feeling a bit better than usual. However, after getting in his car, he noticed Ms. Christmas in her car waiting to follow him. He said that this frustrated him. He beckoned her to follow him because, as he explained, he thought that otherwise she would pull him over anyway or follow him home. He said that he wanted to once again tell her that he did not want to see her. He was praying that she would realise that it was over.

He said that at first he had in mind McDonald’s as a place where they could talk. However, he thought that it would be too crowded, there being many school children about, and, on the spur of the moment, turned left in the direction of the Newmarket Swimming Pool where he had previously worked. They parked their cars there side by side, facing in opposite directions, so that their driver’s sides were adjacent.

The appellant asked Ms. Christmas why she was waiting for him. He said “I thought we had agreed that you would not ... do this stuff anymore and you would leave me alone.” He also confronted her about a number of job applications which she had made, without his permission, on his behalf; during the previous week he had received replies from a number of companies to applications which he had not made or wished to make. She told him that she had done it because she thought it would make him happy. He told her that she had to stop; that she couldn’t be him. She then showed him another job advertisement which she had found for him in Saturday’s paper and the application which she had typed up for him. He said that this made him feel helpless and hopeless.

Then he said that Ms. Christmas suddenly photographed him. He told the Court that this upset him; he felt that she had got part of him again, that she would not let him go and that she was still trying to control him.

He recalled that he had a tool in his hand, playing with it, and got out and put it in the boot. As he came back down between the two cars she suggested that they go to the Exhibition together. He remembered, when she said this, how she had destroyed his attempt to go to the Exhibition the previous year with his friends. He said in evidence “It got to me I suppose. I just couldn’t handle it ... I just wanted to be free of my own life ... Next thing I remember I had my hands around her neck. I don’t know why I did it ... I don’t remember what I was thinking about ... It is like I couldn’t stop ...”; and later “I was upset. The things that happened, happened, and I don’t think I was thinking properly.” He remembered getting into Ms. Christmas’ car. He remembered her head on his lap and he remembered putting a towel around her neck and squeezing it. He was unable to say how long he stayed there or for how long he had his hands around her neck.

When he left the appellant said he just drove. He ended up somewhere in the vicinity of Camp Hill. There he rang his mother from a telephone box and attempted to tell her about what had happened but he broke down and cried. This was at about 5.00 p.m. He then kept driving again and from Strathpine, where he had driven to, rang the ambulance. He also rang his father at about 6.00 p.m. His father told him to go and see their solicitor. Later that night he called to see Mr. Diamond to hand over the keys of his workplace because, as he said, he had done something bad and he may not be able to open up the factory in the morning. He was, according to Mr. Diamond, very upset and very confused.

In answer to the Crown proposition that the act of strangulation which led to the death of Ms. Christmas was simply a loss of temper and that the prior acts of violence were evidence of the appellant’s violent disposition, the doctors responded by saying in effect that the episodes of violence to the deceased which culminated in her death were evidence of an increasing loss of control over his own actions towards Ms. Christmas and as evidence of his worsening depressive state. They contrasted his conduct towards Ms. Christmas with his conduct towards others which was not violent and also with his earlier conduct towards Ms. Christmas which was not violent. The evidence to which we have already referred supports the doctors’ opinions.

It was then submitted to this Court that a statement made by the appellant with his solicitor shortly after the event was inconsistent with his statement in evidence that when he put his hands around Ms. Christmas’ neck he did not intend to kill her or to do some grievous bodily harm to her and was consistent with a deliberate and controlled act. The statement made with the help of his solicitor was as follows: “I still cared for her in a stupid way. That’s why I made it quick for her.” In his evidence he said that his solicitor told him that he may have killed her and that he had replied by saying that he hoped that it was quick for her. He said that that was what he was thinking and that his words came out incorrectly. The previous occasion on which he put his hands around Ms. Christmas’ neck and his previous threats were relied on in support of the submission that this act was deliberate and controlled. Both doctors thought that, from the description which the appellant gave of the events before and after the strangulation, he was in a dissociated state and that even if, contrary to the appellant’s evidence, he expressed by those words what he was thinking at the time he made the statement they are much more likely to have been a reconstruction of the events immediately after the strangulation than a recollection of what he was thinking then. Witnesses who saw the appellant shortly after the event describe him as being very confused and his statements confusing and as him appearing very upset. Both doctors also explained the threats as proving his deteriorating state of mind rather than as controlled statements of intention.

6.          Conclusion on the main question

From the above, it must be accepted that the case which went to the jury was one of uncontradicted evidence given by two psychiatrists, who were in substantial agreement as to all matters, and of evidence given by many witnesses which supported the factual basis on which the psychiatrists relied and which generally was wholly supportive of the doctors’ opinions. There were no facts pointed to on appeal which, in our view, threw doubt upon the opinions reached by the expert evidence.

Consequently, we are unable to see how a rational jury could have rejected the doctors’ opinions as to the appellant’s abnormality of mind at the time when he strangled the deceased. They were not entitled to reject rational opinions based on evidence and to substitute their own opinion based on some of the same evidence. It follows that the verdict was unsafe and should be set aside and that a verdict of manslaughter should be substituted.

7.          An unsatisfactory practice

Counsel for the Crown described his questioning of the appellant below as 'rather a wandering cross-examination', explaining that it preceded the receipt by the Crown of the reports of the two psychiatrists who were later called. It seems unsatisfactory that such reports are not exchanged in advance of the trial, as they must be in some other jurisdictions: see for example the relevant English rules of 1987, set out at Vol.1 p.280 of Archbold. The acceptability of the psychiatric evidence in these cases is likely to depend upon information the psychiatrists have gleaned about the accused's behaviour over a long period of time and the accuracy of that information will extensively need to be gone into. In some instances evidence in rebuttal has been allowed to be called; see Files [1983] 2 Qd.R. 153 and Pateman [1984] 1 Qd.R. 312; but it is ordinarily more convenient to have the whole of the Crown case called before the defence goes into evidence. Rebuttal evidence is hardly likely to be necessary if any relevant reports are exchanged at a time conveniently in advance of the likely trial date.

8.          The appellant’s other ground of appeal

The appellant also made some submissions and, in effect, added an additional ground of appeal to the effect that the conduct of Ms. Christmas’ mother in frequently sobbing in court and, after she had been asked to remain outside, standing at a window facing the jury, was such as to have caused the trial to miscarry. Counsel sought to derive support for this submission from the trial Judge’s report which referred to these matters and expressed concern that the jury may have been placed under undesirable pressure and that his intervention which resulted in excluding Mrs. Christmas from the court may not have been as prompt as it should have been.

No doubt the jury’s emotions may have been influenced by the presence of the deceased’s grieving mother. But to say that that caused the trial to miscarry would be to substitute speculation for inferences of fact. Moreover in the present case there was a very careful direction from the learned trial Judge to the effect that the jury should reach their verdict free from prejudice and sympathy. No redirection on this question was sought. However in view of the conclusion which we have already reached it is unnecessary to consider this ground further.

9.          Sentence

If, as we have held, a verdict of manslaughter must be substituted, Counsel agreed that the appropriate sentence in this case was between eight and ten years imprisonment. We were supplied with a schedule of comparable sentences which supports that joint submission. In our view the appropriate sentence is one of nine years imprisonment.

No basis was established for a recommendation for early parole and none was sought. Indeed one of the consequences of accepting the opinions of the psychiatrists, particularly that of Dr. Apel, is that the appellant is predisposed to the onset of depression and, if subjected to sufficient stress, to acts of extreme violence. This is a matter which we would urge should be taken into account in considering the appellant’s release from imprisonment.