R v Gassy (No 2)

[2005] SASC 491

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v GASSY (No 2)

Judgment of The Court of Criminal Appeal

(The Honourable Justice Debelle, The Honourable Justice Bleby and The Honourable Justice White)

22 December 2005

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL

Murder – application for leave to appeal against conviction – many grounds of appeal – leave granted in respect of part of ground 1 and on grounds 13, 16.1, 16.2 and 28 – leave refused on all other grounds.

Juries Act 1927 s 6A, S 56; Criminal Law Consolidation Act 1935 s 269K; Search Warrants Act 1985 (NSW) s 30; Search Warrants Regulations 1919 (NSW) reg 10, referred to.
Eastman v The Queen (2000) 203 CLR 1; Grbic v Pitkethly (1992) 38 FCR 95; Kesavarajah v The Queen (1994) 181 CLR 230; Ousley v The Queen (1997) 192 CLR 69; R v Blick (1999) 108 A Crim R 525; R v Britten (1988) 51 SASR 567; R v Clune [1955] 1 VR 489; R v Gorham (1997) 68 SASR 505; R v Smith (2000) 116 A Crim R 1; R v Wilson (1970) 123 CLR 334; Shepherd v The Queen (1990) 170 CLR 573; Smith v The Queen (1990) 64 ALJR 588, considered.

R v GASSY (No 2)
[2005] SASC 491

Court of Criminal Appeal:  Debelle, Bleby and White JJ

1. DEBELLE J.        This is an application for leave to appeal against conviction.

2. The applicant was convicted of the murder of Dr Margaret Tobin.  He applied for leave to appeal against that conviction.  His application was heard by Duggan J in December 2004.  On 25 February 2005 Duggan J granted leave to appeal in respect of ground 1 (as modified) and grounds 2, 9, 12, 14, 16.4, 18 and 25.  Leave to appeal on all other grounds was refused.

3. The applicant applied to this Court for leave to appeal on those grounds upon which Duggan J had refused leave.  By leave, he was heard on other grounds which he had added after Duggan J had refused leave.

4. After hearing the applicant’s argument for leave to appeal on 23, 24 and 25 May 2005, the Court on 25 May announced that it would grant leave to appeal by permitting the applicant to add a ground to ground 1 on which Duggan J had granted leave and by adding grounds 13, 16.1, 16.2 and 28 to the grounds, but refuse leave on all of the other ground.  These are my reasons for that decision.

   The Prosecution Case

5. Dr Tobin was the Director of Mental Health for South Australia.  On 14 October 2002 she was shot four times as she was leaving a lift at the eighth floor of the building where she was employed.  The prosecution case was that the applicant had travelled up in the lift with her and shot her as she was leaving the lift.  The prosecution alleged that the motive for the shooting arose out of Dr Tobin’s involvement in the removal of the name of the applicant from the Register of Medical Practitioners by the Medical Tribunal of New South Wales in 1997.

6. The case against the applicant was based substantially on circumstantial evidence.  The applicant was a resident in Sydney at the time of the alleged offence.  The prosecution case was that the applicant had hired a car in Sydney and had driven to Adelaide in order to kill Dr Tobin.  The applicant denied that he was in Adelaide when Dr Tobin was killed.

7. There was evidence that the applicant owned pistols which were of the same brand and manufacture as the pistol used to shoot Dr Tobin.  It was also alleged that he possessed ammunition of the same kind as that with which Dr Tobin was shot.

8. The prosecution alleged that the applicant had a strong motive to kill Dr Tobin.  The prosecution case in relation to motive was as follows.  The applicant was a qualified psychiatrist.  For a time during the 1990s, Dr Tobin was his superior officer at a hospital in Sydney.  She became concerned about the mental condition of the applicant and expressed her concern to the Medical Board of New South Wales in July 1993.  This was the first in a series of events which led to the applicant’s name being removed from the Register of Medical Practitioners.  There was evidence that the applicant kept records relating to other persons who had been involved in the process of his removal from the register.  It was alleged that he bore a grudge against all of them.  There was evidence from various witnesses to the effect that the applicant blamed Dr Tobin for the role she had played in his deregistration.

9. It was also alleged that some six months before Dr Tobin was killed, the applicant had hired a car and had driven to Brisbane at a time when the annual conference of the Royal Australian College of Psychiatrists was in progress at the Brisbane Convention Centre.  Dr Tobin was attending that conference.  The prosecution alleged that the applicant was seen behaving in a suspicious manner in the vicinity of the conference and that there was evidence to suggest that he was carrying a firearm.  The applicant denied being in Brisbane at the time of the conference.

10. There was evidence from a number of witnesses who purported to identify the applicant in Brisbane and in Adelaide.

    The Defence Case

11. The applicant gave evidence at the trial.  He denied any involvement in the killing of Dr Tobin.  He denied being in Brisbane at the time of the conference of the Royal Australian College of Psychiatrists.  He denied being in Adelaide at the time of the alleged offence.  He said that the firearms in his possession at the time of the police search were registered and that he was licensed to use them.  He used them, he said, for target shooting.

    A Voir Dire Hearing

12. After the applicant had been arraigned but before the jury had been empanelled, the trial judge conducted a voir dire hearing to determine applications relating to the admissibility of evidence.  The applicant was represented by counsel retained by him for part of that time.  After the jury had been empanelled, the applicant was unrepresented for the rest of the trial.

    Applicant Unrepresented

13. The applicant was unrepresented on his application for leave to appeal before Duggan J and on his application for leave to appeal before this Court.  The applicant presented his argument from the bar table.  He asked leave for Mr de Robillard, a lawyer, to sit at the bar table with him and to assist him.  The applicant said that he would be making all submissions.  The Court did not permit Mr de Robillard to sit at the bar table but granted leave to the applicant to consult with Mr de Robillard if necessary.  In the event, the applicant consulted Mr de Robillard on a few occasions only.

    The Orders Made On 25 May 2005

14. After hearing argument on 23, 24 and 25 May, the Court granted leave on 25 May to add a further ground to the challenge to the validity of the search warrants which constituted ground 1 of the application for leave.  It also granted leave to appeal on grounds 13, 16.1 and 16.2.  Save for allowing leave to appeal on those grounds, the Court dismissed the application for leave to appeal for reasons to be published.  These are the reasons.

    The Application Is Amended

15. The original notice of application for leave to appeal was filed on 14 October 2004.  By leave the applicant amended those grounds.  The amended grounds of appeal were filed on 13 December 2004.  They were the grounds of appeal considered by Duggan J.  After Duggan J had published his reasons on 25 February 2005, granting leave on some grounds and refusing it on others, the applicant filed an amended summary of argument.  The last version of that was filed on 26 April 2005.  It is that summary together with the amended grounds of appeal filed on 13 December 2004 to which the Court had regard.  The amended grounds of appeal filed on 13 December 2004 will be described as “the December application”.  The summary of argument filed on 26 April 2005 will be called “the April argument”.

16. I have approached the application on the footing that an application for leave to appeal should succeed if the grounds relied upon are reasonably arguable: cf R v Blick (1999) 108 A Crim R 525 at 530.

17. As there are so many grounds of appeal, it will assist a reading of these reasons if all grounds are listed notwithstanding that Duggan J has granted leave in respect of some.  That will demonstrate that all grounds of appeal have been considered.

    Ground 1

18. Duggan J granted leave on ground 1 but limited it to the following grounds:

    The trial judge erred in failing to exercise her discretion to exclude evidence of the result of the searches of the applicant’s premises on 29 October 2002 and 11 March 2003 by reason of the following:

    1the search warrants dated 28 October 2002 and 10 March 2003 were invalid in that jurisdiction was not disclosed on the face of the warrants;

    2the search warrant dated 28 October 2002 contained misdescriptions;

    3the search warrant dated 10 March 2003 did not refer to the offence of which the applicant was suspected;

    4the procedures before the justice of the peace at Kogarah on 29 October 2002 did not result in the issuing of a valid warrant on that date or, alternatively, a valid amendment of the warrant issued on 28 October 2002.

    The applicant seeks to add other grounds.  It is necessary to examine the background leading to the grounds upon which he seeks to invalidate the search warrants.

19. The trial judge had permitted evidence to be led as to various items found in searches of the house occupied by the applicant at the time of the alleged offence.  At that time, the applicant resided at Oyster Bay, a suburb of Sydney.  He shared the house with his parents.  Police conducted searches of the house on 29 October 2002 and 11 March 2003.  The applicant was arrested on 9 November 2002.  A warrant was issued for each search.  Both warrants were issued in purported compliance with the Search Warrants Act 1985 (NSW). The items seized during those searches and information obtained as a result of those searches formed an important part of the prosecution case. The applicant challenged the validity of both search warrants. The trial judge ruled that both warrants were valid.

20. The applicant applied for leave to appeal against the rulings of the trial judge on a number of grounds.  The December application for leave listed the following grounds

    1.1        The judge erred in ruling that the search was not attended by illegality.

    1.2The judge did not direct the prosecution to honour an undertaking that the documents relating to the search warrant would be produced in court without the applicant having to issue a subpoena for them.

    1.3        The judge erred in not ruling that the warrant was invalid on its face.

    1.4The trial judge erred in not granting an adjournment when the applicant’s counsel Mr de Robillard failed to honour an undertaking to organise an instructing solicitor.

    1.5The trial judge erred in that she overly restricted counsel for the applicant to explore irregularities relating to the issue and execution of the warrant.

    1.6The trial judge erred by interfering with the cross-examination of the witness Moss.

    1.7The trial judge erred by refusing to permit further evidence to be called on the voir dire as part of a collateral challenge to the validity of the warrant.

    An examination of the reasons of Duggan J discloses that he has granted leave in respect of grounds 1.1 and 1.3 of the December application.  He refused leave on grounds 1.4, 1.5, 1.6 and 1.7.  He also refused leave on a ground which was not part of the December application for leave but was argued, namely, that there was illegality in the execution of the warrant on 29 October 2002.

21. The applicant contended that police officers had unlawfully gained entry to the house at Oyster Bay, with the consequence that everything seized by police was tainted with illegality.  He contended that police had unlawfully stopped his mother, Mrs Maud Gassy, that they had misrepresented to her that they had a valid warrant, and that in consequence Mrs Gassy had been prevailed upon to permit the police officers to enter the house.  We decided that leave should be granted to add to ground 1 a further ground of invalidity in addition to those grounds on which Duggan J had granted leave.  The applicant was permitted to add this ground to challenge the validity of the warrant:

    if the warrant dated 28 October 2002 was invalid, a representation was made to Mrs Maud Gassy or to the applicant that the police held a valid warrant.

    This additional ground gathered up most of the issues which the applicant wished to contest.  When this ground is added, the applicant had leave to appeal on the following grounds:

    The trial judge erred in failing to exercise her discretion to exclude evidence of the result of the searches of the applicant’s premises on 29 October 2002 and 11 March 2003 by reason of the following:

    1the search warrants dated 28 October 2002 and 10 March 2003 were invalid in that jurisdiction was not disclosed on the face of the warrants;

    2the search warrant dated 28 October 2002 contained misdescriptions;

    3the search warrant dated 10 March 2003 did not refer to the offence of which the applicant was suspected;

    4the procedures before the justice of the peace at Kogarah on 29 October 2002 did not result in the issuing of a valid warrant on that date or, alternatively, a valid amendment of the warrant issued on 28 October 2002.

    5if the warrant dated 28 October 2002 was invalid, a representation was made to Mrs Maud Gassy or to the applicant that the police held a valid warrant.

22. I turn to examine what remains of ground 1.  The applicant contended that the prosecution had not honoured an undertaking to produce documents relating to the issue of the search warrant without the applicant having to issue a subpoena for them.  The prosecution had not produced the documents because a certificate had been issued pursuant to reg 10 of the Search Warrants Regulations 1919 (NSW) to the effect that the documents could not be made available.  The applicant then prepared a subpoena directed to the Registrar of the Kogarah Local Court, requiring production of all documents held in relation to the issue of both warrants which he sought to challenge.  The documents were the same documents which the prosecution had undertaken to produce.  The trial judge instructed an officer of the Criminal Registry of this Court to issue the subpoena and to serve it by post on the Kogarah Court.  However, before the subpoena was sent, the applicant indicated that he wished to abandon the request for a subpoena.  Accordingly, the subpoena was not sent to the Kogarah Court.  In short, the applicant had his remedy available.  He began to implement the remedy but then decided not to proceed with it.  The applicant cannot now complain that the documents were not available.  Ground 1.2 is not reasonably arguable.

23. The applicant contended in ground 1.7 that there were grounds for collateral challenge to the warrant and that the trial judge erred in refusing to permit further evidence on the voir dire on this issue.  He contended that the justice who had issued the warrants had not complied with the Search Warrants Act.  It is not possible to examine those contentions either without the records which the Act required the justice to keep.  Those documents were the subject of the same subpoena.  In the absence of those records it is not possible for the Court to deal with this ground.  It is not, therefore, reasonably arguable.

24. The applicant sought to challenge some of the findings of fact made in respect of the manner in which the police had stopped his mother before taking her to the applicant’s house.  Those matters will be dealt with in the course of the additional ground on which leave has been given.  There is no need for a further grant of leave.

25. The applicant contended that the search of the premises and the seizure of articles was invalidated by the fact that the police had remained on the premises after 9.00 pm.  The warrant authorised the police to remain only until 9.00 pm.  However, no article was seized after 9.00 pm.  This ground cannot in any way assist the applicant.  It cannot affect his conviction.  Leave will not be granted.

26. The only remaining issues are those in grounds 1.4 to 1.6.  The issue raised in ground 1.4 is also the subject of grounds 27.23 and 27.24.  It is not reasonably arguable for the reasons given in respect of those grounds.

27. The applicant offered no argument in support of ground 1.5.  The issue raised in ground 1.6 is also the subject of ground 27.31 in the April argument.  It is not reasonably arguable for the reasons given in respect of that ground.

28. Finally, the applicant sought to add a new ground, namely, that the trial judge erred in determining the validity of the warrant without looking at the records required by s 30 of the Search Warrants Act.  This ground must also fail.  The judge was not able to examine that submission without seeing the documents.  Given that the applicant abandoned his application for the subpoena, she did not have the documents available to her.  This ground also is not reasonably arguable.

    Ground 2

29. Leave was granted by Duggan J.

    Ground 3

30. Ground 3 is in these terms:

    A miscarriage has occurred due to the combined effect of Her Honour’s rulings referred to in grounds 2 and 1.4, and the fact that the applicant was unrepresented for 70 per cent of the voir dire and the whole of the trial proper and the fact that he had been continuously in custody since his arrest (having been denied bail by the Magistrates Court and the Supreme Court).

    This ground is supplementary to grounds 2 and 1.4.  It adds nothing to them.  It is otiose in the sense that, if the applicant succeeds on either ground 1 or ground 2, he does not need to rely on this ground.  Should he fail on grounds 2 and 1.4, the applicant must necessarily fail on this ground.  The fact that the applicant was not on bail is not a sufficient ground for alleging that a miscarriage of justice has occurred.

    Ground 4

31. Ground  4 is in these terms:

    The learned trial judge erred in admitting evidence of photo-array identification because the photo-arrays were deficient in that the appellant (sic) stands out unfairly from the other images in the array.

    For the purpose of preparing a photo‑array identification, the police had used a photograph of the applicant which was taken for the purposes of obtaining a driving licence a short time before the alleged offence.

32. The applicant sets out seven grounds upon which he asserts that his photograph stood out unfairly from other photographs in the array.  I set out the contention and decisions in respect of each.

    1.The first submission was that his is the only photograph of a person with unparted hair tied back in a ponytail.  This submission does not fairly describe the array.  The photograph of the applicant was taken with him looking directly at the camera.  The photograph suggests that he has long hair but it is apparent that others in the array also have long hair.  In his April argument the applicant seeks to assert that he is shown as the only one with hair pulled back and that distinguishes him from others.  I disagree.  There is nothing to suggest his hair is pulled back to a ponytail.  In addition, photos 2, 8 and 10 show similar hairstyles.

    2.The next ground was that his skin tone appears to be redder than the faces of other persons in the array.  There was no evidence from any witness that the person whose identification was in question had a reddish complexion.  In that sense, the reddish complexion is to the advantage of the applicant.  While it is true that the photograph of the applicant does depict a person with a reddish face, each of the photographs have features which distinguish the person in the photograph from those in other photographs.  In that respect, there is nothing which unduly draws attention to the applicant.

    3.The third ground was that the applicant’s image was electronically manipulated to compensate for the reddish appearance with the consequence that his image appears blurred or out of focus and so causes his photograph to stand out from the others.  A comparison of the photographs does not bear this out.

    4.The fourth ground was a like complaint, namely, that the electronic manipulation had caused the photograph of the applicant to depict a person with an unnatural skin tone.  A comparison of the photographs belies this submission.

    5.The next ground was that the arrest of the applicant attracted a great deal of publicity in the media and so would have led witnesses to an expectation that a photograph of the applicant would have been one of the images in the array.  This is not a valid ground.  The police officer presenting the photographic-array stated to each of the persons to whom the array was presented words to the effect,

    A photographic image of the person involved may or may not be on the display, do you understand that?

    That warning was sufficient to counteract publicity in the media.

    6.The applicant contended that the applicant’s image stood out in two ways.  This was a recapitulation of grounds 2 and 3.  It is not reasonably arguable.

    7.The final ground is that there are different arrays each with the same label so that one cannot be certain which was shown to a particular witness.  This ground only serves to highlight the fact that the process of identification was conducted in a way which would not point to a photograph of any particular person as the accused.  This ground does not in any respect assist the applicant.

    All of the above grounds cannot be sustained.  It is not arguable that these photographs depicted the applicant in any way which would cause his photograph to stand out from other photographs used in the array.  The applicant has failed on all of his attacks upon the photo-array identification and leave for appeal on ground 4 should be refused.

    Ground 5

1. Ground 5 complained that the trial judge erred in the exercise of her discretion in not excluding evidence of photo-array identification undertaken after the applicant was taken into custody.  The applicant asserted that it should have been excluded on the ground of unfairness.  The applicant submitted that, after his arrest, he was not given the opportunity of taking part in an identification parade or of having a legal representative present during the identification procedures.

2. The applicant had an opportunity to participate in an identification parade. The process was explained to him. He made it clear that he did not wish to participate in an identification parade. He was informed of the consequences, namely, that police would place photographs of him in front of potential witnesses. The applicant stated that he understood that but still did not wish to participate in the identification parade. All this occurred before the applicant was arrested. The evidence is set out in Duggan J’s reasons at [97]. It is unnecessary to repeat it. There is no reason why police should suspect that his attitude might change after he was arrested. There was no obligation upon them to repeat the request. The applicant is bound by his election and in the result leave to appeal on this ground must be refused. A further reason for refusing leave is that, on arrival in Adelaide after his arrest, he contacted a solicitor Mr Ey who, among other things, advised him not to participate in an identification parade. He accepted that advice. The ground is not arguable.

   Ground 6

3. Relying on grounds 4 & 5, the applicant contends that the trial judge erred in not excluding in the exercise of her discretion evidence of eight witnesses as to identification of the applicant from photographs.  One of those witnesses is Ms Durrington.  Her evidence is the subject of ground 9 of the applicant’s grounds of appeal.  Leave to appeal has been granted in respect of that ground.  It is more appropriate to deal with questions as to the admissibility of Ms Durrington’s evidence when ground 9 is argued on the appeal.

4. The complaints in respect of the other witnesses Allen, Conway, Smith, Ceron, Fisher, Pellicone and Tuffin all raise questions going to the weight as opposed to the admissibility of the evidence.  The grounds raise issues which might have required a direction but it is not reasonably arguable that the reasons advanced by the applicant should have led to the exclusion of the evidence of these witnesses.

5. The trial judge gave a lengthy direction warning the jury of the dangers of identification evidence.  It begins on page 43 of the direction (AB 3/326).  It is a lengthy direction.  It says everything that should be said about the dangers of identification evidence.  In addition to a general warning, she gave particular warnings in respect of each of the witnesses who gave identification evidence.  She gave particular cautions about the identification of certain witnesses.  In the case of Durrington and Tuffin, she described the evidence as “weak”.  In the case of Fisher and Ceron she reminded the jury that their dock identification was weak.  She told the jury to approach it with caution.  In the case of Pellicone she said there was a certain vagueness about his evidence.  She said that the jury should be careful on relying on his identification.  In the case of Conway and Smith where the opportunities to examine the face of the applicant were longer and hence the evidence was a good deal stronger than other evidence, the judge reminded them they must be careful to have regard to the matters she had already outlined.  In short, as mentioned earlier, all these issues go to the weight as opposed to the admissibility of the evidence and the trial judge gave very strong warnings.  The ground is not reasonably arguable.

   Grounds 7 and 8

6. These grounds can be considered together.  They concern the same eight witnesses whose evidence is the subject of ground 6.  Grounds 7 and 8 are in all material respects in the same terms.  The applicant complained that each of these witnesses was permitted to give evidence identifying the applicant in the dock.  Some of the witnesses identified the applicant in the dock following the evidence of their out of court identification based on the photographic-arrays.  Although it is well established that dock identification is of little value where the accused is not previously known to the witness, that does not necessarily mean that, after giving evidence of an out of court identification, the witness should not be asked whether he can see the person concerned in court.  Where a witness has made an identification based on photographic-arrays, the witness may then be asked whether he can see the person concerned in court.  The principle is expressed in these terms by King CJ in R v Britten (1988) 51 SASR 567 at 572:

   It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court.  This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the court is the out of court identification.

   That principle has been followed and applied in Grbic v Pitkethly (1992) 38 FCR 95 at 104 and in R v Gorham (1997) 68 SASR 505 at 508. The subsequent identification of a person in court is usually carried out to confirm that the person previously identified is, in fact, the person before the court: R v Gorham at 508. This principle has not been qualified by any other court in Australia. The principle does not override the discretion of the trial judge to disallow an identification made in court. However, the applicant raised no reasonably arguable ground as to why the judge erred in the exercise of her discretion to admit the evidence.

7. For these reasons leave to appeal on grounds 7 and 8 should be refused.

   Ground 9

8. Leave was granted by Duggan J.

   Ground 10

9. The applicant abandoned this ground.

   Ground 11

10. The applicant abandoned this ground.

    Ground 12

11. Leave was granted by Duggan J.

    Ground 13

12. Ground 13 complained of a remark made by the trial judge in the course of her direction to the jury.  The judge was dealing with evidence concerning a vehicle which had been seen by witnesses in the vicinity of the Brisbane Convention Centre on 27 April 2002 at a conference of the College of Psychiatrists.  The prosecution had proved a series of events in Brisbane in April 2002 which, it suggested, threw light on the identity of the killer of Dr Tobin.  The security staff at the Convention Centre had seen a man who was carrying something which resembled a possible weapon beneath his clothing.  The man was seen to leave the Convention Centre and drive off in a car the registration number of which was 183-GEO or 183-GEQ.  There was evidence that the applicant had hired a vehicle in Sydney on Anzac Day in 2002.  That vehicle bore the Queensland registered number 183-GEO.

13. The prosecution had led evidence of vehicles with registration plates in Queensland and New South Wales which had either of those registration numbers.  The applicant pointed out that there may be other vehicles with those registration numbers elsewhere in Australia.  In the course of her direction the trial judge said:

    It has been suggested to you that there may be other vehicles of that registration 183‑GEO in Australia and that the certificates that you have cover only Queensland and New South Wales.  I might say that I would not think that the South Australian registration numbering system has any number beginning with G.

    The applicant complained that the trial judge should not have added what was tantamount to evidence from the bench in relation to registration numbers in this State.  The ground is reasonably arguable.  Leave was granted on this ground.

    Ground 14

14. Leave to appeal was granted by Duggan J.

    Ground 15

15. In ground 15 the applicant contended that the trial judge erred in that she did not point out to the jury three infirmities in the prosecution case, thus rendering the verdict unsafe or unsatisfactory.

16. The first complaint was that the prosecution had no basis for submitting to the jury that the applicant had a propensity to harbour feelings of anger and resentment against those he perceived as having done him harm.  The applicant contended that this is an improper use of propensity reasoning.  He contended that, during its closing address, the prosecution had improperly used evidence of Dr Woodforde when submitting that the applicant had a propensity to harbour feelings of anger and resentment against those he perceived as having done him harm.

17. This ground depends on a distinction which the applicant draws from the evidence of Dr Woodforde.  The prosecution was submitting to the jury that, if a person has a delusional disorder, that person will harbour feelings of resentment against those he perceived have done him harm.  According to the applicant, that is to misrepresent the effect of Dr Woodforde’s evidence.  According to the applicant, what Dr Woodforde said was quite different, namely, that a person who suffers from a delusional disorder has a tendency to harbour feelings of anger and resentment against towards those who are the subject of his delusions.  It is not a question of someone simply having a delusional disorder and, therefore, being prone to respond in an angry and resentful way to everything that should happen to him.

18. The prosecution submission was a reasonable application of Dr Woodforde’s evidence as explained by the applicant.  Implicit in the prosecution’s submission is the suggestion that feelings of resentment and anger were harboured by the applicant towards the persons who are the object of the delusions.  The applicant sought to make a distinction which has no material bearing on the manner in which the evidence was presented to the jury by the prosecution.  It is apparent also that the applicant misunderstands what is meant by propensity evidence.  This ground is not reasonably arguable.

19. There are further reasons for holding that the ground is not reasonably arguable.  In the course of the prosecution’s closing address to the jury the applicant objected to what he said was a misuse by the prosecution of the evidence of Dr Woodforde.  The trial judge examined the transcript and ruled that the submissions accorded with the evidence.

20. There was other evidence from psychiatrists in addition to that of Dr Woodforde.  They did not all agree with his diagnosis that the applicant was suffering from a delusional disorder.  There was a conflict in the evidence on that issue.  The trial judge reminded the jury of that conflict in plain terms.  She referred to the evidence of three psychiatrists who did not agree with Dr Woodforde’s diagnosis and, with a fourth, who had reservations about it.  To that she added a warning that the jury was not to reason that there was any connection between a mental illness and committing a crime.  The issue was one for the jury to determine and it was properly left to the jury.

21. For all of these reasons this ground is not reasonably arguable.

22. The next complaint by the applicant about the direction concerned two photographs of the applicant taken on 11 November 2002 at the City Watchhouse and exhibit P232, a photograph of the applicant taken in 1993.  There is little apparent change in his appearance in these photographs.  The prosecution had argued that Dr Tobin may not have recognised the man in the lift because his appearance had changed since 1993.  The applicant pointed to the fact that, if his appearance had changed little since 1993, it was likely that Dr Tobin would have recognised him.  He complained that the judge erred in not pointing out this infirmity in the prosecution case.  The trial judge was not obliged to point out every difficulty in the prosecution case.  She did not have to refer to every inconsistency in it.  The applicant could have answered the point in his own submissions.  It is not a reasonably arguable ground.

23. The applicant next contended that the judge should have pointed out to the jury an infirmity in the prosecution case concerning an assertion by the prosecution that the applicant had become aware that slides for pistols could be identified as having fired cartridge cases.  The prosecution contended that he imported slides which he polished after the incident to avoid detection.  It was also alleged that the applicant had taken steps to substitute parts of his firearms to avoid detection.  The applicant contended that it is inconceivable that he would then have risked having the barrels being identified, given that it is common knowledge that barrels leave identifiable marks on projectiles.  There was no suggestion that he had changed the barrels.  In addition, the barrels could not be identified as having fired the projectiles with which the victim was struck.  When dealing with the case for the prosecution and the case for the defence in respect of this point, the trial judge did not deal with this question.  However, we repeat, it is not for the trial judge to point out every defect in the prosecution case.  If that were so, the trial judge would be acting as counsel for the defence.  The ground is not reasonably arguable.

24. In his April argument the applicant added two further grounds on which he complained that the trial judge had not drawn the jury’s attention to infirmities in the prosecution case.

25. He complained first that the prosecution had made an inconsistent submission by stating that it was not surprising that the applicant was able to come in and out of Adelaide virtually undetected because he was a trained surveillance operative.  That, said the applicant, was entirely inconsistent with the prosecution assertion that the applicant was seen at the Brisbane Convention Centre.  He had been noticed even before he had entered the centre.  This, again, is a point which could have been made by the applicant in his own submissions.  There was no duty upon the trial judge to refer to it.  The ground is not reasonably arguable.

26. Finally, the applicant said that the prosecution had failed to explain how someone with the applicant’s training, skill and equipment could have produced at short range the wide pattern of wounds on the victim.  He submitted that, if he had been the shooter, even under stress, he would have produced a more accurate grouping.  This is speculation on his part.  There was no duty upon the trial judge to refer to it.

    Ground 16

27. This ground complains that the trial judge made remarks in the course of her direction to the jury which bolstered the prosecution case and undermined the defence case or, at least, were prejudicial to the defence case.  This, he said, resulted in a miscarriage of justice.

28. The applicant listed nine separate instances.  Leave to appeal has been granted in respect of the fourth instance, which is ground 16.4.  We turn to deal with the remaining grounds.

29. The first complaint, which comprises grounds 16.1 and 16.2 of the amended notice of appeal, is that the trial judge had said that the applicant had not always been accurate when referring to the evidence.  The second is that the trial judge had said that the applicant had “sometime put submissions for which there is no evidentiary basis”.  We granted leave to appeal on those grounds.

30. In ground 16.3 the applicant submitted that improper use was made of the evidence of a firearms residue expert, Mr Sarvas.  At page 21 of her direction the trial judge referred to the evidence of Mr Sarvas in these terms:

    The other significant matter relating to this car is that Detective Sergeant Rowan of the New South Wales Police told you that on 25 October he went to the Avis office at Hurstville and took what he called stubs from the front driver’s side, front passenger side, back seat and boot of the car for later examination for gunshot residue.  These are P161.  They were examined by Senior Technical Officer Sarvas at the Forensic Science Centre and he said he found particles of firearms discharge residue on the front driver’s side stub and in the boot.  Some of these were what he called ‘indicative’ but others were ‘characteristic’.

    He then went on to examine the Speer cartridges of the same kind which were used to kill Dr Tobin and found that they were of the same ‘elemental profile’ as the residue in the vehicle RSX-366.  That is, both had the elemental profile of lead, barium, antimony and aluminium.

    At page 60, the applicant asked the trial judge to correct this part of the direction.  His request was in these terms:

    Yes, your Honour talked about Mr Sarvas determining that the elemental profile with the GSR found in the vehicle being found as being Speer.  It implies that Speer has a particular elemental profile.  Well it does.  But the point being that the way Mr Sarvas actually phrased it was that his examination was aimed at determining whether Speer could be excluded as contributing to that GSR.

    At page 63 the trial judge again dealt with the evidence of Mr Sarvas.  She said:

    I told you about Mr Sarvas and his examination of the firearms discharge residue and comparison of that with the elemental profile of Speer Gold Dot ammunition and I said it was the same elemental profile.  Of course Mr Sarvas acknowledged that other ammunition may well have the same elemental profile.  We just do not know what the situation is there.

    The applicant submitted that the effect of the evidence was that Speer ammunition could not be excluded as having been the source of the firearms residue in the boot of the car but neither could a number of other types of ammunition.  He complained that the trial judge has suggested that the elemental profile of Speer residue is distinctive.  He also complained that she failed to mention that the applicant used Speer ammunition as a licensed recreational shooter which would explain why a firearms reside from the boot of the car had the same elemental profile as residue from Speer cartridges.

31. The trial judge made the correction which the applicant had requested.  If he had wanted anything more said to correct that correction, he could have requested it.  The point is not arguable.  There is an issue whether the trial judge fairly put the defence case on this question.  In the course of her direction, the judge gave a brief summary of the applicant’s argument on gunshot residue in the course of her summary of the defence case.  There is nothing in this point.

32. The next complaint concerned an observation made by the trial judge in the course of her summing up when she said:

    On any view, the accused suffered some sort of mental illness in 1994.

    The applicant complained that this would have created prejudice against him in the minds of the jury given the community’s perceptions of the mentally ill.  It is necessary to have regard to the full context in which the remarks were made.

    On a related matter I give you a warning.  On any view, the accused suffered some sort of mental illness in 1994.  I am not sure that Dr Floyd, his treating psychiatrist, ever diagnosed it, to you, at any rate.  Dr Ali said his opinion was that Dr Gassy had an adjustment disorder, in other words a non-biological depression.  I have referred to other opinions that it was a delusional disorder.  The mere fact that the accused suffered from some sort of mental disorder in 1994 does not make it more likely that he committed this crime.  Mr Brebner has not suggested so.  A large number of the population suffer from some sort of psychiatric disorder at some stage of their lives.  As far as I know, there is no correlation between that and crime.

    What Dr Woodforde said to you, and Mr Brebner has referred to, is that persons suffering from a delusional disorder are often resentful and angry against those who they delusionally believe have hurt them.

    Well, we can all become resentful and angry. The relevance of this evidence is that it might explain how the dishonest dealings behind the scenes which the accused allegedly attributed to Dr Tobin, could cause such strong feelings as to give rise to a wish to kill her, and engender the resentment and malice necessary to carry it out.

    Anyway, my warning to you is not to reason that there is any correlation between mental illness and committing crimes.  Generalised theories such as that do not help in your task.  They are counterproductive to a careful evaluation of the evidence.

    It is unfortunate that the judge expressed to the jury the conclusion that the applicant was suffering from a mental illness.  The expression has a tendency to cause prejudice.  In addition, there was a conflict of opinion among several of the psychiatrists who were called to give evidence of the applicant’s mental condition.  They did not agree that he was suffering from a mental illness.  It would have been less objectionable had the judge used the expression “a psychiatric disorder” which she did use a short time later.  The expression “mental illness” denotes a more serious condition than a psychiatric disorder.  However, when the remark is read in its full context it can be seen that it was not a prejudicial statement.  The trial judge was at pains to point out that, although Dr Gassy might have suffered some psychiatric disorder, there was no correlation between that and the crime.  This ground is not reasonably arguable.

1. The next complaint related to a remark made by the trial judge in the course of setting out the case for the defence.  When referring to withdrawals of money made by the accused, she said:

   He referred to the evidence that he had withdrawn $1,000 on 12 October at Sutherland and he said it was colourless when viewed against the background of his other withdrawals over a period, which were always in amounts of $500 or $1,000.

   In fact, the withdrawals made by the applicant ranged between $1,000 and $5,000.  Although the judge has made a significant error (as the applicant points out an error of tenfold magnitude), it is in the result of no importance.  The judge was stating the defence case that the withdrawal of $1,000 was quite colourless.  Although she incorrectly stated the amounts, her statement of the amounts did not in any way diminish the effect of the applicant’s case.  This is not an arguable ground.

2. It is convenient to deal with the next two grounds of appeal together.  They are grounds 16.7 and 16.8 of the December application.

3. The applicant contended that, in the course of her directions to the jury, the trial judge invited irrelevant speculation as to his future and made observations prejudicial to him.  The remarks complained of are the passages marked by a line in the margin in the following extract from the direction:

   You will recall from the evidence, although I acknowledge that it must have been difficult for you to piece together the chain of events, that ultimately it was Dr Gassy’s refusal to comply with the conditions imposed on him by the Medical Board through its various bodies which led to his being struck off.  He was not deregistered through any finding that he had a delusional disorder or any other mental disability.

   Who knows what would have happened if Dr Gassy had complied with the conditions and had seen another Board-appointed psychiatrist.  We do not know whether he would have been allowed to practise again.

   Nor, for that matter, do we know what would have happened if he had applied six months or more after being struck off for re-registration.

   It has been suggested that mere non-compliance with conditions such as these was not a matter of great moment.  If you have had any contact with regulatory bodies such as the Nurses Board, the Legal Practitioners Conduct Board and the like, you will know that practitioners whose conduct comes under scrutiny are expected to comply with conditions placed on them to the letter and non-compliance usually amounts to professional misconduct.  That is the label given to a wide range of behaviours unacceptable to professional bodies, from defrauding a trust account to sexual misconduct with a client – neither of which obviously have relevance here – but which also extends, as I say, to non-compliance with conditions of practice imposed by the relevant professional board.  Anyway, the very fact that the accused was deregistered tells you of itself how seriously the breach of condition was regarded.

   Well, as is plain and as the accused told you, he did feel aggrieved, to a greater or lesser extent, by his treatment by the Medical Board.  He had enjoyed his role as a psychiatrist although he had been under very stressful work conditions while at St George Hospital.

   This ground misunderstands the point which the trial judge was making.  The trial judge was referring to the fact that the applicant had the opportunity to be restored to the register had he complied with certain conditions. He did not wish to comply with them.  The trial judge was reminding the jury that, but for his non‑compliance, he may have been re‑registered.  She is emphasising that professional persons are required to comply with conditions placed upon them.  The ground is not arguable.

4. The final ground of appeal listed in the December application under this heading is that the judge erred in stating to the jury one aspect of the psychiatric evidence:

   Even though you have heard from Dr Woodforde as to how he came to that diagnosis [of a delusional disorder], you have not perhaps heard the entirety of his basis for forming that opinion or at least not in any systematic way.

   The applicant contended that this adds weight to Dr Woodforde’s diagnosis by implying there is more evidence which could have been elicited on the topic.  He complained that in this way the judge added cogency to the prosecution case in an improper way.  The quoted passage must be read in its context.  The judge also suggested to the jury that Dr Woodforde had a slender basis for his opinion.  She reminded the jury of the conflict in the evidence of the psychiatrists and reminded them that the diagnosis was contentious.  She also reminded the jury that the applicant disagreed with it, as did other psychiatrists.  Contrary to the applicant’s argument, it is not supportive of the prosecution case but merely a recitation of some of the evidence.  The point has already been dealt with when examining ground 15.  It is not reasonably arguable.

5. The April argument contained a new argument that the direction about the Brisbane incident constituted a major misdirection which alone renders the verdict unsafe or unsatisfactory.  The applicant contended that an inordinate time (six pages) of the summing up was devoted to this incident.  He submitted that the use by the judge of such words as “sinister” and “morbid” when describing the applicant’s interest in Dr Tobin meant that the judge added her own twist to the evidence.  He submitted that, although the jury was warned that they would need to be satisfied beyond reasonable doubt that the applicant was the individual seen, that his purpose related to Dr Tobin and that his purpose was sinister or not innocent, the warning suggested to the jury that the individual seen was the applicant, that his purpose did relate to Dr Tobin, and that his purpose was sinister.  I do not agree.  The judge had to give these warnings.  She identified the elements upon which the jury had to be satisfied.  She reminded them they had to be satisfied beyond reasonable doubt.  This was admissible similar fact evidence.  The point is not arguable.

6. In his April argument the applicant added a further 23 grounds.  Some are a replication of existing grounds of appeal.  All are complaints as to particular remarks made by the trial judge in her direction to the jury.  Some grounds complain that the remarks were prejudicial.  When read in their context, they are not.  Each of the grounds is very shortly stated.  They can be dealt with summarily.  The ground and the decision in respect of each is set out by reference to the applicant’s paragraph numbering.

   16.10In directing the jury (page 3) on determining guilty beyond reasonable doubt they must “bear in mind that this is a practical court of law”.

   It is submitted that this lowered the burden of proof.  It plainly does not.  The ground is not reasonably arguable.

   16.11        Telling the jury that:

   The prosecution’s case does not depend so much on the credibility of witnesses … but more particularly the thrust of the prosecution case depends on the circumstantial evidence and what inferences you are prepared to draw from that evidence (boosting credibility of prosecution witnesses).

   Plainly, this does not in any respect boost the credibility of prosecution witnesses.  It is simply a correct assessment of the prosecution case.  The ground is not reasonably arguable.

   16.12Unduly dispose the jury to find nothing out of the ordinary; nor inherently unreliable about circumstantial evidence.

   The direction forms part of an explanation to the jury as to the nature of circumstantial evidence and is unobjectionable.  The ground is not reasonably arguable.

   16.13Praising Crown counsel’s address while criticising the applicant for being inaccurate and directing the jury that they “can rely on [Her Honour’s] statements of the evidence”.

   This is a repetition of ground 16.1 and will be considered in that context.

   16.14Suggesting to the jury there was a similarity between the vehicle shown on the Renmark video and the vehicle RSX 366.  (Jury matter despite acknowledging that the vehicle was “shown not at all clearly”.)

   When read in context the judge is inviting the jury to see a possible similarity.  In no sense is she removing the issue from the jury.

   16.15Unduly strengthening the evidence of the Brisbane witness by stating that the suspicious man “seems to have made quite an impression on the witnesses”.

   The quoted remark appears in the following passage:

   It seems clear that the activities of the particular individual who was observed at the Convention Centre were quite unusual.  He seems to have made quite an impression on the witnesses.  Of course, the evidence is that an entry was made in the security log P56. 

   The judge then reminded the jury of the entry in the security log at the Convention Centre.  The remark is unfortunate.  In one sense,  the judge may be putting her own view of the evidence to the jury.  In another sense, she was merely drawing attention to what the witnesses said were unusual activities of the person they saw.  When viewed in context, it would not have caused a miscarriage of justice.

   16.16        Unduly strengthening the reliability of the Brisbane log entry

   There was nothing improper in the judge reminding the jury in the course of her recitation of the evidence of the entry in the log at the Brisbane Convention Centre.  The ground is not reasonably arguable.

   16.17Unduly emphasising the Crown’s allegations of delusional behaviour on the applicant’s part with “motive” for being in Brisbane: use of words “morbid or sinister interest that Dr Gassy had in Dr Tobin”.

   The quotation forms part of the judge’s recitation of the prosecution case.  She expressly stated that it is part of the prosecution case.  Later in her direction, the judge explains the manner in which the jury is entitled to use the evidence concerning the man seen at the Brisbane Convention Centre.  It was done in a proper manner.  The ground is not arguable.

   16.18Wrongly directed that the “website evidence” could prove the state of his [the applicant’s] mind if he read it.

   This ground refers to the body of evidence relating to a website concerning firearms to which the applicant had gained access.  When read in context, it is apparent that the judge was not using this reference in a prejudicial manner.  She said:

   The relevance of the website material is to prove the accused had an interest in the subject matter and to prove the state of his mind if he read it.

   That is a proper reference to the evidence and an explanation of its use.  This ground is not reasonably arguable.

   16.19Wrongly encourages the jury to conclude that Dr Tobin was responsible for the applicant’s deregistration when such was not the case on the applicant’s case.

   When read in context this ground is unsustainable.

   16.21        Putting undue emphasis on the “delusional disorder” issue.

   This has already been dealt with in earlier grounds of appeal.  The ground is unsustainable.

   16.22Unfairly mention the applicant’s refusal to participate in an identification parade, from which the jury may have erroneously inferred that the applicant was seeking to evade being identified, and thereby must be guilty.

   When read in context, it is manifest that these remarks are not made in any prejudicial way.  The remarks were made in the course of the judge’s direction on the proper use to be made of arrays of photographs for the purpose of identification.  The judge reminded the jury that the applicant said that he would not take part in an identification parade.  She referred to the fact that Detective Kinsman

   … asked the accused whether he would be prepared to take part in an identification parade and the accused declined.  As I have previously mentioned to you, the accused was not obliged to go into an identification parade and you should draw no inference against him for having exercised that right which the law gave him.

   The judge has fairly stated the position.  This ground is unarguable.

   16.23Unfairly returns to the log entry when addressing the identification evidence of the Brisbane witness.

   When read in context this ground is not at all arguable.

   16.24Unfair mention of “false start” theme and the effective theme which was a gift to the prosecution from Her Honour herself.

   This is a re‑iteration of ground 27 (6) of the December application.  It is examined in more detail below when ground 27 is examined.  For present purposes, it is sufficient to summarise what is there said.  The expression “false start” was used by the trial judge in the course of the voir dire hearing.  It was adopted by counsel for the prosecution.  Plainly, he regarded it as a convenient label.  He used it in the course of his address to the jury.  The remark was used by the judge in her direction in the course of her description of the prosecution case.  This ground is not arguable.

   16.25Wrongly suggest to the jury the findings they should make on the facts in order to come to the same conclusions as the Crown.

   At pages 65 to 68 of the direction, the judge discussed the evidence led by the prosecution that the accused was the man who was seen at the Brisbane Convention Centre.  In that part of the direction the judge directs the jury as to how they might evaluate that evidence and its relevance.  The passage concluded with the remarks about which the applicant complains:

   It is for you to say whether such a line of reasoning is helpful in this case.  The potential relevance of the Brisbane evidence is, then, its tendency to prove the accused’s presence in Adelaide and his purpose for being here.

   In those remarks, the judge has informed the jury that it is for them to determine whether the line of reasoning is helpful.  The observations must be read in the light of what has gone before, namely, a careful direction as to the required standard of proof of the applicant’s presence in Brisbane and how it could be used by the jury to establish his presence in Adelaide at the time of the shooting.  The remarks do not have the prejudicial effect for which the applicant contended.

   16.26Unduly drew attention to the fact that an added burden had been placed upon the Court and the prosecution because the applicant chose to represent himself.

   When summarising the defence case at the close of her direction to the jury, the judge mentioned that the accused had chosen to represent himself.  She reminded the jury that he had not had the benefit of an experienced practitioner to represent him.  She continued:

   His task will have been arduous.  In some respects, that has imposed an additional burden upon the prosecutor and, indeed, upon me to see that his case is fairly put before you.  It is proper for you to make allowance in assessing the accused’s demeanour and personality for the fact that he has no counsel to guide him in representing his case and his evidence.

   It would have been preferable for the remarks as to the additional duty upon the prosecutor and the Court to have been omitted.  However, when read in context the remarks are not unduly prejudicial.  This ground is not arguable.

   16.27When addressing the defence case Her Honour unfairly reminded the jury of counterweight evidence unfavourable to the applicant, eg diluted Committees, finding of “no obvious behavioural problems” with Dr Wilhelm’s evidence that the applicant had been “albeit transiently psychotic” during late 1994.

   The remarks were made by the judge in the course of her summary of the defence case.  At this point she was reciting the history which led to the deregistration of the applicant.  The history is accurately stated.  This ground is not arguable.

   16.28By contrast to the Crown’s witnesses, Her Honour described Dr Floyd as being “sympathetic” to the applicant, undermining evidence given in the applicant’s favour.

   In the course of summarising the prosecution case about the attitude of the applicant towards Dr Tobin the judge said:

   Then the accused told the sympathetic Dr Floyd that he was worried that Dr Tobin might lie about him and she had lied to the Medical Board.

   Dr Floyd was a witness for the prosecution.  She was one of the psychiatrists called by the prosecution.  The applicant had consulted her.  She was one of the witnesses who was not prepared to diagnose the applicant as suffering from a delusional disorder.  It was inappropriate for the trial judge to make her own assessment of the witness as “sympathetic”.  That was a matter for the jury to determine.  The judge should not have conveyed her view to the jury in that way, which carried with it the risk that the epithet “sympathetic” might be understood as pejorative.  Notwithstanding that, when the remark is read in context, the prejudice is so slight that this ground is not reasonably arguable.

   16.29This is the complaint about the directions in relation to the Brisbane Convention Centre.  It has already been dealt with.

   16.30        There is no ground 16.30.

   16.31Erroneously referred to the “identification evidence of Mr Ceron and Mr Summers” when only Ceron and Fisher gave evidence of “identification” re Brisbane.  This may have misled the jury to think that three rather than two witnesses from Brisbane gave evidence of similarity of appearance.

   This is plainly an error on the part of the trial judge.  It appears to be a slip of the tongue.  It has no real consequence.  The ground is not reasonably arguable.

   16.32Her Honour erred in suggesting to the jury that they should consider the possibility that the appellant (sic) had delusions about Dr Tobin and that this could “give rise to a wish to kill her, and engender the resentment and malice necessary to carry it out”.  This inference was not reasonably open to Her Honour on the facts.  Of note is the fact at the sentencing hearing Her Honour rejected the prosecution submission that the appellant (sic) suffered from a delusional disorder.

   This is a repetition of the issues in ground 15.  When read in context, it is not prejudicial.

   Ground 17

7. This ground comprised three matters which, the applicant submits were critical aspects of his defence and were not mentioned by the trial judge in her direction.  They all stem from the fact that the identity of the person who had shot Dr Tobin was in issue.  I examine each by the paragraph number in the December application.

   17.1The first is that, if the jury had concluded that the applicant was in Adelaide, they should have considered an alternative motive for him to be in Adelaide, namely, the bulk purchase of cannabis for resale in Sydney to fund the purchase of anti-HIV drugs which were costing the applicant, who was unemployed, $2,000 per month.  There is no evidence to support this remark which was made by the applicant in his closing address to the jury.  It was mere speculation on his part.  It had no higher status than an unsubstantiated explanation made which could not be tested in cross‑examination.  This ground is manifestly unarguable.

   17.2The second was that the judge did not tell the jury that Dr Tobin was seen to leave the lift unperturbed.  The applicant submitted that the position of the wounds indicated that she turned to face her assailant and would have known if it was the man from the lift.  He submitted that she did not disclose the identity of her assailant because she did not recognise him.  He further submitted that she did not recognise the assailant because that person it was not the applicant.  He contended it is inconceivable that a killer motivated by revenge would have not declared himself to the victim.  This too is speculation.  In any event the judge dealt with it at page 81.

   17.3The third complaint was that the judge did not tell the jury that there was no evidence that the applicant had ever told any of the witnesses, who claimed that he had told them that Dr Tobin was working against his best interest, that he intended to take action against Dr Tobin or that he made threats against her.  The evidence does not support this submission.

   The first two of those submissions constitute mere speculation on the part of the applicant and raise no arguable grounds.  The third contention is contrary to the weight of the evidence.  This ground is not reasonably arguable.

   Ground 18

1. Leave was granted by Duggan J.

   Ground 19

2. In this ground the applicant contends that the trial judge erred in not allowing him to adduce evidence on four separate issues.

3. The first (para 19.1) was a post mortem photograph of the body of the victim showing the position of the entry of bullet wounds.  The applicant asserted the prosecution had claimed the victim had been shot a fourth time while lying on the ground.  That is not the prosecution case, as is apparent from the evidence of Dr James.  His evidence was that Dr Tobin had collapsed or was in the process of collapsing when the fourth shot was fired.  The applicant had applied for the post mortem photographs to be tendered.  The judge concluded that the post mortem diagram was sufficient evidence of the shots.  The applicant complained that the photographs would have provided a clearer picture to the jury and that he was prejudiced by reason of the fact they were not admitted.  His contentions are not at all persuasive.  This ground is not reasonably arguable.

4. The second complaint (in para 19.2) was that the trial judge did not permit the applicant to tender an offer of employment from Dr Hoskins.  The applicant sought to tender the letter for the purpose of proving that he had potential to take up a new career had he chosen to comply with the conditions imposed by the Professional Standards Committee.  The applicant had given evidence that he had received an offer of employment from Dr Hoskins.  That evidence was not challenged.  It was open to the applicant to say that he was at liberty to take up the offer provided that the Medical Board permitted it.  The letter took the matter no further.  The trial judge refused to permit the letter to be tendered on the ground that it might be slightly misleading in that it failed to refer to the important condition, namely, that the Medical Board would have to permit the applicant to return to practise.  The defence of the applicant was not prejudiced by the refusal of the judge to admit the evidence.  The grounds upon which the judge did so were correct.  This ground is not arguable.  The applicant lost nothing by not being able to tender the letter.

5. The next complaint (in para 19.3) was that the trial judge refused to permit the applicant to examine Dr Phillips and Dr Woodforde on the voir dire.  The applicant had applied to examine Dr Phillips and Dr Woodforde on the voir dire.  His stated purpose was to demonstrate how weak the evidence was in the hope that the trial judge would then exclude it.  The trial judge expressed the view that, even if the applicant were able to demonstrate that the evidence of Dr Phillips and Dr Woodforde was weak, it would not necessarily follow that it should be withdrawn from the jury.  Mr Brebner indicated that he believed that as a matter of fairness the applicant should have an opportunity to cross-examine them.  The judge said that she would consider the application but later refused the applicant’s application to call Dr Phillips and Dr Woodforde on the voir dire.  The question is whether the applicant’s defence was prejudiced and a miscarriage of justice occurred because he was denied the  opportunity to cross-examine them on the voir dire.  The evidence of both Woodforde and Phillips was relevant and admissible.  Although the judge correctly stated that there is sometimes too much leniency in respect of voir dire examinations, fairness to an unrepresented litigant might have dictated he should have been given this opportunity.  However, the matter does not end there.  He did have the opportunity to cross-examine these witnesses before the jury.  There was no real occasion for an examination on the voir dire.  It would have done no more than give the applicant some idea of what they intended to say.  That would have been apparent from their reports in any event.  This is not an arguable ground.

6. The applicant’s fourth complaint (in para 19.4) was that the trial judge did not permit him to lead evidence from a Professor Thomson.  Professor Thomson is Professor of Psychology and Director of Forensic Psychiatry at the Charles Sturt University.  The applicant sought to call Professor Thomson to give evidence concerning the degree of confidence with which a witness makes identification and the accuracy of that identification.  The trial judge asked Professor Thomson to prepare a short proof of his proposed evidence.  Professor Thomson did so.  The trial judge summarised the effect of what Professor Thomson intended to state in her ruling.  His evidence concerned processes of the memory.  It dealt with the confidence of a witness as to the accuracy of identification and the claimed tendency of witnesses to over-estimate time spans and under-estimate distances, those matters being asserted to be relevant when assessing the reliability of identification evidence.  Professor Thomson has endeavoured, without success, to give like evidence on earlier occasions.  See for example R v Clune [1995] 1 VR 489 and R v Smith (2000) 116 A Crim R 1. When making her ruling, the trial judge relied on the decision of the High Court in Smith v The Queen (1990) 64 ALJR 588 which again concerned evidence which Professor Thomson had proposed to give. It is clear from the reasons of the High Court that evidence of the kind which Dr Gassy proposed to lead from Professor Thomson is not admissible. The ruling of the trial judge was, therefore, clearly correct. The issue is not reasonably arguable and leave must therefore be refused.

   Ground 20

7. The applicant contended that the trial judge erred in allowing the prosecution to lead evidence from a firearms expert Peter Lawrence concerning a document which had been downloaded from a website concerning firearms on the internet.  The website is FirearmsID.com.  The evidence given by Lawrence on this topic was that the website provides information for people with an interest in firearms identification.  Lawrence described it as a good site providing accurate information.  Lawrence had printed four pages from the site.  These became exhibit P192, which was admitted over the objection of the applicant.  Another copy of the same pages was exhibit P169.  The applicant contended that both documents were inadmissible hearsay, submitting that, if this evidence was to be tendered the author Mr G S Doyle should have been called.  The evidence would have been hearsay if it was being used to establish the truth of the matters stated on those four pages.  However, the evidence was led for another purpose, namely, to do no more than indicate what was available on the website to anyone who visited it.  It was admissible on that footing.

8. The applicant also objected to the evidence on the ground of relevance.  The evidence was relevant because pistol slides which contained the breech faces and which had been found on the applicant’s premises had been polished.  The polishing had a potential to prevent cartridge cases used in the weapon being traced back to it.  The prosecution case was that the applicant gained knowledge of these matters from the website.

9. In short, the evidence was clearly relevant and admissible.  The issue is not reasonably arguable and leave must be refused.

   Ground 21

10. The applicant withdrew this ground.

    Ground 22

11. The applicant withdrew this ground.

    Ground 23

12. The applicant complained that the trial judge erred in not adjourning proceedings until a juror who had fallen ill had recovered from her illness.  The judge had empanelled 14 jurors for this trial.  On Wednesday, 15 September, during the prosecution address, the judge was informed that one of the jurors was ill.  The trial judge took the view that all of the jurors should be able to see the trial through, notwithstanding the fact that two would ultimately have to be balloted off the jury.  The judge said that she would adjourn for a day to enable that juror to recover.  At that time the judge did not know whether the juror would be fit to return to jury duties the next day.  The judge expressed the view that she should allow one day for the juror to recover.  Both the applicant and Mr Brebner QC agreed with that course.  On Thursday, 16 September, the juror was still unwell.  The judge announced that, in accordance with her view tentatively formed the previous day she proposed to discharge the juror and proceed with the addresses.  The applicant asked that the trial be adjourned to enable the juror to resume.  The prosecution had no submission.  The judge discharged the sick juror.

13. The applicant relied on the fact that the trial was well ahead of schedule.  That is irrelevant.

14. The judge plainly had power pursuant to s 56 of the Juries Act 1927 to proceed in this way. She had 13 jurors remaining. One of the purposes of s 6A of the Juries Act is to meet this kind of contingency and ensure that a jury of 12 remains.  The trial judge had an absolute discretion in this regard.  There was no unfairness.  A further delay would have meant a long gap in the prosecution case.  The ground is not reasonably arguable.  Leave to appeal should be refused.

15. In the course of his submissions the applicant contended that the juror appeared to be favourable to the defence.  He said that he gleaned this by impression.  That is no basis upon which to uphold this ground.

    Ground 24

16. The applicant contended that the trial judge had failed to direct the jury adequately as to the principles of circumstantial evidence and their application to the facts of this case.

17. The judge dealt with the question of circumstantial evidences in her direction.  In the course of that direction she said:

    Where a case depends upon circumstantial evidence, the charge is not proved beyond reasonable doubt if there remains a reasonable possibility of innocence.  If there is some reasonable explanation of the evidence consistent with innocence, that has not been convincingly excluded, then it must follow that the charge has not been proved beyond reasonable doubt.

    The direction is correct.  It might have gone a little further by informing the jury that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances:  Shepherd v The Queen (1990) 170 CLR 573 per Mason CJ at 578. However, the judge effectively said all that needed to be said. The ground is not reasonably arguable and leave is refused.

    Ground 25

18. Relying on Shepherd v The Queen, the applicant contended that the trial judge had erred in the course of her direction to the jury in that she had failed to direct the jury that they needed to be satisfied beyond reasonable doubt as to a number of critical or intermediate matters of fact before they could find that the applicant was guilty of the crime of murder.  The applicant identified those matters as

    (a)     opportunity;

    (b)     the Brisbane incident;

    (c)     equipment;

    (d)     motive;

    (e)     the scene; and

    (f)     the fact that the applicant had a delusional disorder or mental illness.

    The trial judge had directed the jury that they needed to be satisfied beyond reasonable doubt of certain matters in relation to the Brisbane incident before they could have regard to it when considering whether the applicant was guilty of the charge of murder.  Duggan J granted leave in respect of the question whether the prosecution had to prove motive beyond reasonable doubt.  Four issues, therefore, remain.  They are opportunity, equipment, the scene and the fact that the applicant had a delusional disorder.

19. None of those four issues required a specific direction that they had to be proved beyond reasonable doubt.  Proof of some matters beyond reasonable doubt was implicit in proof of the prosecution case.  For example, there could not have been any opportunity for the accused to have shot Dr Tobin unless the jury was satisfied beyond reasonable doubt that he was in Adelaide at the time that the shooting occurred.  It is, therefore, not arguable that any one of these four issues required a specific direction that it, considered alone, must be established beyond reasonable doubt.  Leave must, therefore, be refused.

    Ground 26

20. In this ground the applicant contended that the trial judge had failed to exclude certain evidence.  A number of items were grouped under particular headings.  The applicant abandoned some of the grounds upon which he relied.  It is necessary to deal only with those which were pressed and to do so by reference to the paragraph number in the December application.

21. In para 26.1 the applicant objected to the fact that exhibit P117, a laser sight taken from the applicant’s premises, was admitted.  He contended that it was highly prejudicial.  The laser sight was proved to be irrelevant by a prosecution witness.  The sight was part of the applicant’s equipment as a licensed recreational shooter.  No prejudice could have arisen from it.  In her direction to the jury, the trial judge pointed out that no adverse inference could be drawn against the applicant by reason of the fact that he was a recreational shooter.  The point is not reasonably arguable.

22. The applicant also objected in para 26.1 to the admission of exhibits P124, P125 and P164 which were all jackets taken from his premises.  Exhibits P124 and P125 did not have any gunshot residue.  Exhibit P164 did have gunshot residue on the jacket.  There is nothing prejudicial about these items.  It was not part of the prosecution case that the killer wore any of those items of clothing.  The fact that the applicant was a licensed recreational shooter explains why one of the jackets had gunshot reside upon it.  The applicant’s case was not prejudiced.  The ground is not reasonably arguable.

23. The applicant contended that exhibit P28 was irrelevant and prejudicial.  This is a certificate given to the applicant by an organisation called “Star Services Security and Roden Training Centre”.  It certified that he had successfully completed a VIP Protection Course and showed that he had ability in matters such as escaping under fire and combat psychology.  The applicant contended it was prejudicial because of the public perception of violence associated with bodyguards and security guards.  The document was admissible to show that the applicant had a capacity to use firearms.  Any prejudice in the document did not outweigh its probative value.  The ground is not reasonably arguable.

24. The applicant sought to contend also that the admission of this document breached the principles governing the admissibility of propensity evidence.  There is plainly no issue of propensity in connection with the admission of these certificates.  This is but one of a number of occasions where the applicant demonstrated a misunderstanding of the principles relating to propensity evidence.  This ground is not reasonably arguable.

25. The applicant contended (in para 26.2) that exhibit P30 was a document which had little probative value but was highly prejudicial to him.  Exhibit P30 was an altered Medical Practitioners Registration Certificate.  It was found in the applicant’s premises.  It was in effect a forged Certificate of Registration stating that the applicant was on the Register of Medical Practitioners for the period 1 October 2002 to 30 September 2003.  It was admitted as evidence to support the inference that the applicant missed practising medicine and might have intended to pass himself off as a practitioner.  The evidence established that the applicant had made the alterations to the certificate.  However, there was no evidence that the certificate had been used in any way.  The applicant’s evidence was that he had produced this certificate for no reason other than to conduct an exercise in the use of his computer software.  There was other evidence that the applicant’s credit cards did not use the title “Doctor”.  Views might reasonably differ on the question whether the probative value of this evidence outweighed its prejudicial effect.  However, even if it should not have been admitted, it is not of sufficient prejudice to have caused a miscarriage of justice.  This ground was not reasonably arguable.

26. The applicant contended (in para 26.3) that exhibit P100 had a prejudicial effect which outweighed its probative value.  This exhibit was a series of still images taken from a videotape at the Mobil Service Station at Renmark.  The submission is that the images were enlarged beyond useful magnification.  This ground raises no issue which is reasonably arguable.

27. The applicant then complained (in para 26.4) that the evidence of certain witnesses should not have been admitted.  On the hearing of the application he withdrew his application in respect of certain witnesses.  In the result, the witnesses whose evidence he submitted should not have been admitted are Drs Woodforde, Phillips, Arnold and Wilhelm.

28. The evidence of all of these witnesses was relevant.  The prosecution case was that the applicant had killed Dr Tobin intentionally and in order to redress grievances which he still had over the role that he believed that she had played when he had been removed from the Roll of Medical Practitioners some years before.  The evidence was led for a number of purposes.  First, it was led as evidence of the history of the events leading to the applicant’s removal from the Register of Medical Practitioners.  It was also led for the purpose of proving what the prosecution said was the “delusional disorder” suffered by the applicant.  Thirdly, it was led to prove that the names of some of these witnesses were found on a torn railway ticket found in the possession of the applicant.  Finally, the evidence was relevant to the issue of motive.

29. The applicant sought to attack the evidence of Dr Woodforde on a number of grounds.  He contended that the evidence was propensity evidence.  Here again, it was apparent that he misunderstood the principles relating to the admissibility of propensity evidence.  Dr Woodforde’s evidence was not propensity evidence offending those rules.

30. The applicant complained that the evidence was hearsay, prejudicial and too remote in time to be of legal relevance.  On any view it was not hearsay and, for the reasons expressed, it was relevant.

31. It must be noticed also that, although Dr Woodforde had diagnosed the applicant as suffering from a delusional disorder, other psychiatrists called by the prosecution had disagreed with his diagnosis.  Reference has already been made in these reasons when examining ground 16 to that other evidence and to the directions of the judge on that issue.

32. The applicant also contended that Dr Woodforde’s evidence was a fabrication.  In cross-examination, the applicant had questioned Dr Woodforde to the effect that it was a fabrication.  It was for the jury to decide the weight which should be attributed to Dr Woodforde’s evidence.  It was quite inappropriate for the applicant to raise the allegation of fabrication at this late stage during the hearing of his application for leave to appeal, particularly as there was no objective evidence to support the criticism.  The applicant also attempted to challenge the grounds on which Dr Woodforde had based his diagnosis.  Again, it was inappropriate to raise that allegation at this stage in the absence of any objective evidence to support the criticism.

33. The attack upon the evidence of Dr Woodforde and on the other witnesses is misconceived.  The applicant failed to raise any reasonably arguable ground in this context.

34. In paragraph 26.6, the applicant complained that two exhibits are too remote in time to have any relevance.  They are exhibits P152 and P153.  Exhibit P152 is a computer note made by the applicant with comments on Dr Woodforde’s report of 30 August 1994.  Exhibit P153 is notes made on 29 January 1995 entitled “Summary of events leading to my appearance before the Impaired Registrants’ Panel”.  As the applicant himself stated in argument before Duggan J:

    They were prepared at the time when the events at St George Hospital in the Impaired Registrants’ Panel were pretty well at the forefront of the applicant’s mind.

    On any view they were relevant to the issue of motive.  This ground is not reasonably arguable.

1. In paragraph 26.7 the applicant contended that three exhibits were irrelevant, prejudicial propensity evidence.  They are exhibits P15, P129 and P132.  Exhibit P15 is a card on which names and photographs had been pasted.  The photographs appear to be of Dr Arnold, Dr Phillips and Dr Burke.  They are all psychiatrists.  Arnold and Phillips were witnesses.  Exhibit P129 is a copy of a document taken from the applicant’s wallet and contains some names.  It is a torn railway ticket containing initials and addresses of doctors involved in the deregistration procedure.  Exhibit P132 is a simple plan of part of St Vincent’s Hospital in Sydney.  Markings on the plan point to the workstation of one of the doctors who sat on the Professional Standards Committee which had a part in the deregistration of the applicant.  These documents are all relevant.  They point to the applicant’s pre‑occupation with the registration process and those involved in it.  It is not inadmissible propensity evidence.  The ground is not arguable.

2. In paragraph 26.7.1, the applicant objected to the admission of evidence in support of the prosecution case that the applicant was at the Brisbane Convention Centre on 27 April 2002 because of a nefarious interest in Dr Tobin.  He contended that there are reasonable explanations for that evidence consistent with innocence.  It is unnecessary to examine all of the exhibits and the evidence listed in this paragraph.  It is sufficient to note that it was proper for the prosecution to lead this evidence.  It is evidence which explains the relationship between the applicant and the deceased: R v Wilson (1970) 123 CLR 334 at 338 - 339. It is evidence also which establishes motive. It is sufficiently proximate in time to the shooting of Dr Tobin to be relevant. This ground is not reasonably arguable.

3. In short, none of the above grounds is reasonably arguable and leave is refused.

   Ground 27

4. The applicant complained in this ground that the trial judge erred in taking an over-active role during the trial in favour of the prosecution.  He contended that the judge shed her mantle as an independent arbiter.  In his words she “crossed the line in her role as referee”.  He identified three categories,

   (a)suggesting to the prosecution what evidence to lead and not to lead to add cogency to its case;

   (b)pointing the prosecution to legal authority and suggesting the prosecution change its position on what evidence to lead and so strengthen its case; and

   (c)considering an invalid application to have the applicant psychiatrically examined and making an order pursuant to s 269K of the Criminal Law Consolidation Act to that effect.

   In respect of each of those three categories, there are a number of instances of the conduct of which he complained.  I deal with each in turn.

   (a)    Suggestions to the Prosecution

   (1)The first complaint relates to the voir dire hearing.  It is said, that during the playing of a videotape of an identification procedure involving a potential witness Susan Wright, the judge stopped the video when she became aware that the detective had improperly encouraged the witness to identify the applicant.  The submission does not correctly represent what took place on the voir dire hearing.  The applicant pointed out to the trial judge that the detective had tried to influence the witness.  The prosecution decided not to call the witness Wright.  The applicant then contended that the video should be shown because it showed the police officer acting improperly.  The judge disagreed, pointing out that it did not necessarily follow that, because a detective had misconducted himself with one witness, there had been improper conduct with other witnesses.  The ground is simply not arguable.

   (2)The next complaint concerned discussion in the voir dire hearing between the trial judge and counsel for the prosecution as to the use to be made of a particular exhibit from the Medical Board.  In no sense did the judge assist prosecution counsel.  Her purpose was to ensure a fair trial.

   (3)The complaint was that the judge had assisted the prosecution when discussing the Persons of Interest list in the course of the voir dire hearing.  The judge was not assisting the prosecution.  Instead, to the contrary, she expressed concern that the prosecution was over-egging the pudding.  Again, her purpose was to ensure a fair trial.

   (4)This discussion concerned discussion during the voir dire of the admissibility of a brochure for the 37^th Conference of the College of Psychiatrists in April/May 2002.  The judge did no more than suggest that the whole brochure should be admitted rather than extracts.  This was plainly a very proper course.  In the course of the exchange the judge said:

   Why don’t we tender the full brochure and then the court can provide a copy to Dr Gassy?

   The complaint relates to the use of the word “we”.  In no sense was the judge joining the prosecution.  It is simply a loose use of the royal plural.  There are one or two other occasions when the judge uses the royal plural but again it is loosely used and there can be no suggestion of any assistance to the prosecution as the applicant contends.

   (5)In the course of the voir dire, the judge indicated that, if the prosecution proposed to tender a security log in respect of the Brisbane Convention Centre, the appropriate evidentiary foundation had to be laid.  She indicated she would not receive the evidence unless certain steps were taken.  Again, the trial judge was doing no more than seeking to ensure a fair trial.

   (6)Again, on the voir dire hearing, when discussing evidence relating to the Brisbane Convention, the judge said:

   I am not saying whether or not the facts pass it, it just doesn’t seem to me to be an appropriate test for this type of situation where, as I understand you, you are really saying that Brisbane was a false start, if you like, and that Adelaide was another start which went to finality.

   The applicant contended that the use of the expression “false start” is one which appealed to the prosecution counsel because he used it in his opening address.  For example, he said:

   In other words, ladies and gentlemen, it is the prosecution case that what happened in Brisbane amounts to what you might call a false start.

   It is apparent from a reading of the transcript of the voir dire that the judge did no more than state her understanding of the prosecution case.  It rises no higher than that.  If counsel chooses to pick up an expression used by the trial judge, he is entitled to do so.  There can be no possible suggestion in any way that the trial judge was assisting the prosecution.  The ground is not reasonably arguable.

   (7)Early in the trial a Ms Payne gave evidence.  She was an officer of the Medical Board of New South Wales with responsibilities for professional conduct.  She proved, among other things, a letter from Dr Tobin to the Medical Board concerning the applicant.  The judge and counsel for the prosecution explained to the jury the evidentiary value of the letter.  In the course of her remarks the judge said:

   Certainly this is a letter which seems to indicate that a certain chain of events was commencing.

   The remarks made by the trial judge were for the purpose of explaining to the jury the limited use which could be made of the letter.  The contention that the judge was assisting the prosecution is wrong.  The letter was the beginning of a chain of events on which a good deal of evidence was given.

   (8)The applicant complained of remarks by the judge during the trial linking exhibit P56 with evidence of two witnesses.  Exhibit P56 is an extract from a security log relating to the Brisbane Convention Centre.  The entry was made during the psychiatrists’ conference.  It stated that a man was reported as being seen carrying something that resembled a possible weapon underneath his clothing.  The man was seen to get into a car registered number “183-GEO or Q”.  As soon as that evidence was admitted the trial judge reminded the jury of evidence from a Mr Hamilton and a Ms Wood which related to the hiring of a car with the registration number 183-GEO and of that car being seen at a motel.  This is no more than a proper intervention by a trial judge to ensure that the jury is following the evidence.

   (9)The applicant referred to a question asked by the trial judge at the conclusion of the evidence of Dr Woodforde which, he said, was prejudicial to him.  Examination and cross-examination had been finished.  It is clear that the question was no more than a clarification of the evidence.  It was a question that the judge was entitled to ask.

   (10)The applicant complained that the judge improperly prompted a question from a witness.  Ms Harding, an employee of Avis, was giving evidence.  It concerned the rental of a car RSX-366 to the applicant.  It would seem that there was some pause while counsel leading the witness considered her position.  The following exchange occurred:

   Judge:There is another statement from Ms Harding.  Are you not dealing with that?

   Ms Telfer:At this point I ask the witness be stood down.  I have come without the exhibits to show her to be quite honest and it will take about 10 minutes for me to get them.

   The witness was stood down.  Another witness was called.  Ms Harding resumed her evidence a little later.  The complaint that the judge prompted prosecution counsel reads altogether too much into this intervention.  Plainly, the judge was trying to work out where matters are heading.

   (11)The applicant complained that the trial judge interrupted his cross‑examination of the witness Durrington at a critical stage when he was attempting to lay the groundwork to establish that the witness Durrington was biased because, he said, both she and Dr Tobin were lesbians.  He says that he then lost momentum with the consequence that the witness was able to compose herself and withstand his cross‑examination.  The judge interrupted the cross-examination because, to use the judge’s words, “one of the jurors is having difficulty”.  For that reason the judge took the afternoon break.  The nature of the difficulty is not explained.  This is no more than one of those accidents of timing which not infrequently occur in a trial.  It does not give rise to an arguable ground.

   (12)This ground refers to grounds dealt with earlier in these reasons which, the applicant contended, indicate that the judge engaged in an over‑active role in favour of the prosecution.  They have been dealt with elsewhere and need not be examined again.

   (13)The applicant complained that the judge made an untenable comment in the course of the voir dire when hearing submissions on the validity of the search warrants.  The applicant alleged that she said that there was nothing improper about how an incorrect address on the warrant dated 28 October 2002 was rectified.  An examination of the transcript belies the contention.  The judge did no more than state that she understood the point which was being made.

   (14)The applicant relied on the fact that he received the longest non-parole period for a single conviction for murder.  This is an entirely untenable submission.  What occurs in sentence has nothing to do with the conduct of the trial.

   (b)    Pointing to Authority

5. These are the applicant’s contentions that the judge pointed the prosecution to authority and suggested that it change its position as to evidence which it was going to lead, thereby strengthening the prosecution case.

6. The submission concerned the decision in Ousley v The Queen (1997) 192 CLR 69, a decision concerning warrants issued in Victoria by Judges of the Supreme Court pursuant to the Listening Devices Act 1969 (Vic). The issue was the admissibility of evidence which had been tape recorded under the authority of those warrants. The court held that the evidence was admissible. The trial judge referred to the decision in the context of a discussion as to the admissibility of evidence of items seized under search warrants. There was plainly no impropriety in a judge raising a relevant decision even if it is not known by the prosecution. The judge was doing no more than seeking to ensure that she proceeded according to law.

7. The judge and the prosecution considered the decision overnight.  The judge commented the next day that it was a helpful case and asked Mr Brebner QC, counsel for the prosecution, if it changed his submissions.  He replied that it modified them.  After a brief report on other matters from Ms Telfer, junior counsel for the prosecution (no more than five lines in the transcript), Mr Brebner returned to the decision in Ousley.  The applicant contended that the judge suggested that the prosecution might change its position in the light of Ousley and that Mr Brebner had handed over to his junior while he considered Her Honour’s comments.  Both those assertions are totally belied by the transcript.  The judge made no such suggestion and Mr Brebner handed over to Ms Telfer for a very brief report on subpoenas before argument continued.  He might have considered the comments made by the judge but he certainly had very little time to do so.

8. The applicant then contended that Mr Brebner decided not to issue a subpoena for the search warrant documents as he had initially intended.  He did so relying on Ousley contending that the warrant was valid.  This was not a case of the judge assisting the prosecution.  It was simply a search by the judge to ascertain the correct legal position.

   (c)     Considering an Invalid Application?

9. The applicant complained in ground 27 (c) that the trial judge had considered an invalid application that the applicant should be psychiatrically examined and later made an order under s 269K of the Criminal Law Consolidation Act.

10. On 3 May 2004, in the course of the voir dire hearing, the prosecution applied for an order that the applicant be required to undergo an examination by a psychiatrist pursuant to s 269K. On 28 May, in the course of the voir dire hearing, the judge said she was not prepared to make any such order because she did not believe she had the power to do so. However, she indicated to Mr de Robillard, who was counsel then appearing for the applicant, that she was still considering making an order under s 269 irrespective of any application before her. After hearing submissions, the judge made orders pursuant to s 269K requiring production of psychiatric reports that existed in relation to the mental condition of the applicant, both recent and dating back to the 1990s. She further ordered that the Director of the Forensic Mental Health Service or an appropriately qualified expert nominated by him prepare a report on the mental condition of the applicant.

11. The applicant contended that the issue of fitness to plead was improperly raised.  There was no issue of his fitness to plead when he had pleaded not guilty on his arraignment before the trial judge.  The question, he submitted, could not subsequently be raised.  A question of the fitness of an accused person to plead might arise at any stage during the trial: Kesavarajah v The Queen (1994) 181 CLR 230. This contention is unarguable.

12. The applicant further submitted that the trial judge had indicated some bias by raising the issues.  It is not entirely clear whether the facts support that contention.  But even if it is, that submission is untenable.  The question of the fitness of an accused person to be tried is not left exclusively to the party.  The Court itself has a responsibility to raise the issue, notwithstanding that neither the prosecution nor defence raise it: Kesavarajah at 244 – 245; Eastman v The Queen (2000) 203 CLR 1 at [282] per Kirby J.

13. The applicant contended (in para 27.30 of the April argument) that this procedure caused the applicant and his counsel to devote valuable time and energy to a non-issue, instead of being able to address the issues vital to his defence.  Given the fact that the applicant had a history of psychiatric illness, it was not improper for either the prosecution or the trial judge to raise the issue.  This ground too is plainly not arguable.

    Additional Grounds For Ground 27

14. In his April argument the applicant said that he was re‑articulating ground 27.  In fact, he added new grounds.  The applicant did not argue all of those grounds.  It is desirable to rule on each so that no issue remains.  Some of the grounds repeated what is contained in the amended grounds of appeal filed in December last.

15. In this ground the applicant contends that the trial judge demonstrated bias by

    ·a series of adverse rulings,

    ·comments in the trial process which bolstered the prosecution case and which undermined or were unfair to the defence case, and

    ·a series of misdirections listed in ground 16.

    The applicant states that in this ground “bias” means that the rulings, unfair actions and misdirections indicated a pre‑determination of the relevant issues.  It is in effect an allegation of actual bias in the sense of pre‑judgment.  There is nothing which justifies that argument.  The alleged misdirections in ground 16 have been dealt with earlier in these reasons.  Leave to appeal was granted in respect of one of those grounds but, not in respect of any other of the multiple grounds upon which the applicant complains.  Grounds 27.1 to 27.19 listed rulings made against the applicant.  Standing alone, an adverse ruling is not sufficient evidence of bias.  A good deal more is required.  Nothing was advanced which in any way justified the allegation of bias.  It is unnecessary to deal with each of the adverse rulings of which the applicant complains.  It is sufficient to note that either viewed alone or together, they do not indicate either actual or apprehended bias.  It is relevant to note also that most of the rulings of which the applicant complains have been upheld by this Court.  A small few are the subject of a grant of leave to appeal and they do not disclose bias.

16. Ground 27.20 complained of the direction to the jury concerning Telstra records.  That is already the subject of ground 16 on which leave to appeal has been granted.

17. The applicant then listed a number of examples of what he describes as “overactive interference and unfair actions” by the trial judge.  These are listed and decided by reference to their paragraph number in the April argument.

    27.21Failing to confront the prosecution with its failure to honour the undertaking of Mr Press that the documents relating to the search warrant would be produced in court without the applicant having to issue a subpoena for them.  This ground has already been dealt with when examining ground 1.  It is unsustainable.  The applicant abandoned his request to subpoena the documents.

    27.22Intervening to restrict counsel for the defence in attempts to explore various irregularities in regard to the issue and execution of the warrant.  This ground is particularised in some detail.  None of those particulars identify any ground which justified intervention by this Court.  They are instances of the trial judge seeking in a proper manner to deal with issues in the trial and to administer the voir dire hearing.

    27.23 – 27.24    These grounds can be dealt with together.  The applicant complained that the trial judge refused to allow Mr de Robillard to continue cross-examination of Inspector Leonard because of doubts about his practising certificate.  Ground 27.24 complained that the trial judge refused Mr de Robillard a two hour adjournment to resolve the issue as to his practising certificate.  The applicant pointed out that there would have been no difficulty in granting the adjournment.  The two police officers who were then subject to cross-examination, Mr Leonard and Mr Moss would not have been inconvenienced.  The judge stopped Mr de Robillard while it was ascertained whether he had a practising certificate which permitted him to practise in South Australia.  The trial judge refused an adjournment to allow Mr de Robillard to attend to these matters, notwithstanding that the prosecution had said that the witnesses Leonard and Moss would not be greatly inconvenienced if they had to wait another day.  The judge expressed her frustration that Mr de Robillard had not resolved the questions concerning his entitlement to practise.  Although this had caused the trial to be interrupted, there was no reason why the adjournment could not have been granted.  However, it is apparent from what followed that no miscarriage of justice occurred.

    27.25The applicant’s complaint is that the trial judge improperly interfered in Mr de Robillard’s cross‑examination of Detective Moss.  The judge did no more than remind Mr de Robillard that the topic had been addressed in evidence in chief.  There is nothing in this point.

    27.26This is a further aspect of the above grounds and is not arguable.

    27.27The applicant submitted that he was not permitted to call evidence on the voir dire as part of his collateral challenge to the validity of the warrant.  This ground is unsustainable given the fact that the applicant withdrew his application for the subpoena.

    27.29 - 27.30 These grounds are but aspects of the complaint of the applicant concerning the enquiry pursuant to s 269K, which has already been considered.

    27.31 - 27.32These grounds can be dealt with together.  In those paragraphs the applicant asserted that the trial judge unfairly bolstered the evidence of Mr Fisher and Mr Ceron as to their respective identifications of the accused at the Brisbane Convention Centre.  The allegation is unfounded.  The applicant complained of questions asked by the trial judge in the course of the evidence.  It is quite clear that the judge is doing no more than clarifying the evidence.

    27.33The applicant complained that the trial judge unfairly forced him to repeat unnecessarily Dr Woodforde’s account of the so‑called “Mauritian Ambassador Incident”.  The complaint is not justified.  At this point the applicant was cross-examining Dr Floyd.  The judge did no more than direct the applicant as to how to proceed after he had asked a question to which objection was taken.  The judge in fact assisted the applicant in the conduct of his cross-examination.  The applicant was exploring a topic which led to the answers of which he now complains.

    27.34 – 27.43    The applicant alleged a number of instances on which the trial judge assisted the prosecution case.  The complaint repeats grounds which have all been examined earlier in these reasons.  The complaint in each instance is unfounded.

    27.44The applicant raised the topic which is the subject of ground 9, for which leave to appeal has been granted.

    27.45The applicant complained of the fact that he was denied an opportunity to cross‑examine Dr Phillips and Dr Woodforde on the voir dire.  This complaint has already been examined and determined.

    27.46 – 27.47    The applicant alleged that the trial judge wrongly allowed Dr Woodforde to be considered as an expert witness and improperly invited the jury to form a favourable impression about him.  The first complaint is quite unfounded.  Dr Woodford was but one of a number of witnesses who could fairly be described as expert witnesses in relation to the psychiatric evidence which was led at the trial.  The complaint that the judge improperly invited the jury to form a favourable impression about Dr Woodforde is also unfounded.  Her Honour did no more than say it was a welcome change for a witness to be speaking at a slow pace.  There is nothing which could justify a grant of leave to appeal.

    27.48The applicant alleged that during the playing of a videotape of an identification procedure by the witness Wright, the trial judge stopped the video when the judge became aware that the police officer had improperly identified the suspect in a photo‑array to the witness.  This is another aspect of ground (a) (1) in ground 27 which has already been examined.  It has no substance, especially as the witness Wright was not called at the trial.

    27.49The applicant complained that the trial judge sentenced him for the longest non‑parole period for a single conviction for murder.  This repeats the complaint in ground (a) (14) of ground 27 which has already been examined.  It must be dismissed for the same reason.

    Ground 28

1. In this ground the applicant asserts that a miscarriage of justice has occurred and that the verdict of the jury was unsafe unsatisfactory.  This ground picks up all of the other grounds.  It is a matter which will be considered after the hearing of the appeal on those grounds for which leave has been granted.

   Grounds 29 and 30

2. The applicant amended his application to include three additional grounds.  Mr Brebner QC properly did not oppose them being argued.

3. In ground 29 the applicant complained that the trial judge had failed to discharge the jury on the second day of the trial after some erroneous claims had been reported in The Advertiser concerning the open address of the prosecution.  Although the trial judge gave warnings to the jury about the article, the applicant contended that those warnings were insufficient to overcome the prejudice.  The article in The Advertiser contained some errors.  At the trial the prosecution conceded in the absence of the jury that the presumption of innocence might have been displaced.  It contended that the jurors would have recognised the mistakes.  After hearing argument, the judge identified the inaccuracies to the jury and told them to disregard them.  This issue arose at a very early stage of what was a long trial.  A good deal of evidence followed.  That evidence would have informed the jury of the true facts in relation to the matters which had been wrongly reported.  The ground is not reasonably arguable.

4. Ground 30 concerns another article in The Advertiser published on 9 July 2004.  No complaint was made about the article during the trial.  The article purported to outline anticipated problems with identification evidence.  It described the prosecution as having a problem with identification, describing it as “the identification hurdle”.  The absence of any complaint is one bar to this ground.  More importantly, the article did not prejudice the applicant’s case.

   Ground 31

5. In ground 31 the applicant contended that he was disadvantaged by being required to conduct his defence from the dock.  He submitted that he should have been permitted to conduct his defence from the bar table.  Alternatively, some other arrangement should have been devised to overcome the physical difficulties of working in the dock.  Those difficulties included the difficulty of standing and reading, a consequence of the fact that there is little room between the edge of the seat and the narrow ledge where cups of water are placed.  There was no suitable place to store paper except on the bench on which the accused sat.  The applicant also contended that he suffered physical discomfort which affected his demeanour.  It was also difficult to cross-examine witnesses from the dock.  At a directions hearing on 2 April 2004 the applicant had asked if he could conduct his defence from the bar table.  The trial judge refused the application.  There was no reason why the trial judge could not have permitted the applicant to sit at the bar table.  It was not suggested that he was a security risk.  It was clear that it was going to be a long trial.  The accused was entitled to be reasonably comfortable and to have reasonable facilities for placing his papers.  However, the applicant does not point to any occasion when discomfort or any other disability prevented a proper cross‑examination.  The ground is not reasonably arguable.

6. BLEBY J. I agree with the reasons of Debelle J for granting or refusing leave to appeal, as the case may be.

7. WHITE J. On 25 May 2005, I joined with the other members of the Court in the orders on the appellant’s application for leave to appeal.  The Court said that it would publish reasons later.  My reasons for joining in the orders are in general the same as the reasons now published by Debelle J.  There is nothing which I wish to add.