R v Holbrook

[1996] QCA 344

IN THE COURT OF APPEAL	[1996] QCA 344
SUPREME COURT OF QUEENSLAND	C.A. No. 174 of 1996
Brisbane
Before	Fitzgerald P. Davies J.A. Ambrose J.

[R. v. Holbrook]

T H E Q U E E N

v.

BOYD RICHARD HOLBROOK Appellant

FITZGERALD P.

DAVIES J.A. AMBROSE J.

Judgment delivered 13/09/1996

SEPARATE REASONS OF FITZGERALD P., DAVIES J.A. AND AMBROSE J.

CONCURRING AS TO THE ORDER MADE.

Appeal against conviction dismissed.

CATCHWORDS:	CONVICTION - MURDER - brutal killing - appellant admitted to having killed the deceased - appellant suffers from a thyroid condition (Graves’ Disease) - effect of the combination of Graves’ Disease, alcohol and LSD - whether the trial judge misdirected the jury on the issue of intent - defences of insanity and diminished responsibility - whether the appellant’s acts occurred independently of the exercise of his will - whether the prosecution case was circumstantial.
ss. 23, 27, 28, 289, 302(1)(a), 304A of the Criminal Code (Qld.)
R. v. Falconer (1990) 171 C.L.R. 30 R. v. Kusu [1981] Qd.R. 136 R. v. Nielsen [1990] 2 Qd.R. 578
Counsel:	S. Hamlyn-Harris for the Appellant M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	16 July 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 13/09/1996

The appellant has appealed against his conviction of the murder of Monique Fay Hoffman on 26
June 1994.

When she was killed, Ms Hoffman was 23 years old, five months pregnant and the appellant’s accomplice in a series of breaking, entering and stealing offences. The appellant admittedly killed Ms Hoffman with a number of blows to her head with a tomahawk, he then cut off her head, which he buried about 850 metres from where her car was later found, hid her headless body under a pile of branches, and poured petrol over her car and attempted to set it alight. The abandoned vehicle was found the following day near a track under the Logan Motorway; there were blood covered items of clothing inside the vehicle and a plastic bag and some blood were found in the boot.

When initially questioned by police soon afterwards, the appellant denied having seen Ms Hoffman for “a bit over a week”, but a few days later admitted that he had killed her. He then took part in a video recorded police interview, in which he described what had occurred in some detail. Later, he accompanied police and pointed out where he killed Ms Hoffman, where her vehicle and headless body had been found, where he buried her head, and where he had later disposed of the tomahawk and other tools which he had used.

The appellant told investigating police officers, and gave evidence at his trial, that he had consumed alcohol on the day of the killing and, shortly before the killing, he had ingested the drug LSD. According to the appellant, he then commenced to hallucinate and thought that he saw large birds coming down towards Ms Hoffman and himself. He took a tomahawk which he kept attached to his belt for use when breaking and entering premises and started to swing the tomahawk at the birds he thought he could see. When the tomahawk “got stuck” he thought that he had hit a bird, but then saw Ms Hoffman lying on the ground. He cut off her head because he thought that she was looking at him and that she was going to return to life and harm him. His subsequent activities, including telephoning a woman friend to collect him, were attributed to panic. In an interview with a doctor after he had been charged, he said that, on the day following the killing, he did not really know that he had killed Ms Hoffman and that the whole event seemed like a strange dream, although after seeing a news report on television and finding the registration plates of her car in a pocket of his pants, he realised that he must have killed her. The appellant consistently denied any motive for killing the deceased, and none was suggested.

Before this Court, the appellant advanced a number of arguments which either had not been raised or had been decided adversely to him at trial. All his points depended on the fact that the appellant suffers from a thyroid condition known as Graves’ Disease, which sometimes causes an elevation in thyroid hormone levels which can have an adverse effect on the brain. Although the effects of the disease can be controlled by regular medication, the appellant said that, in the period leading up to Ms Hoffman’s death, he had not been taking the drugs prescribed for him by medical practitioners who had been treating him.

A number of experts gave evidence concerning Graves’ Disease and its effects, especially in combination with the use of alcohol and LSD. It is important to emphasise at the outset that the appellant accepted that he had no “thyroid problem” on the day of the killing, that there is no evidence that he had thyrotoxicosis at that time and he was observed by others to be “normal”, and there is no evidence except his own that he ingested LSD. Further, the hallucinations which the appellant claimed were consistent with his ingestion of LSD, with or without alcohol or the presence of Graves’ Disease. However, LSD does not necessarily remove awareness or cause confusion. The contention for the appellant was that his thyroid condition might have been a factor in his hallucinations and the resultant killing of Ms Hoffman, in conjunction with alcohol and LSD.

Dr Strakosch, a endocrinologist who had been treating the appellant since June 1993, gave evidence that Graves’ Disease causes elevated levels of thyroxine, the principal hormone produced by the thyroid gland, which can affect the brain in various ways, ranging from minor anxiety to total paranoia. In Dr Strakosch’s opinion, elevated thyroxine levels would increase the effects of alcohol and probably LSD.

Another endocrinologist, Dr d’Emden, who was called by the prosecution, gave evidence that there was no indication from a home video recording of the appellant’s conduct earlier in the day of the killing or from the later video recording of the police interview that the appellant was suffering from thyrotoxicosis at the time of the killing, and that there is no research which indicates whether or not thyrotoxicosis would increase the effect of LSD.

A pharmacologist, Dr Bourke, who has extensive experience in thyroid research, gave evidence that the elevation of thyroid hormone levels can lead to personality changes and sometimes to severe symptoms similar to schizophrenia, involving problems with thought processes, delusions and even visual hallucinations. Dr Bourke also expressed the opinion that delusions were a common effect of LSD. He stated that he could find nothing in the scientific literature concerning the combination of elevated thyroxine and LSD, but that it was possible that “the combined effect [was] greater than the sum totals [of] the two separate effects ...”.

Three psychiatrists, Drs Moyle, Grant and Varghese, also gave evidence.

Dr Moyle conceded the possibility of interaction between alcohol and/or LSD and the appellant’s Graves’ Disease, and acknowledged that if the appellant was psychotic and swinging at birds he probably would have been deprived “of the capacity to know that he ought not do the act of swinging the axe and hitting ... Monique on the head with the axe ...”, but considered that the appellant’s hallucinations were produced by intoxication from alcohol and LSD. Dealing with diminished responsibility, Dr Moyle said that there would be no abnormality of mind unless the appellant was experiencing thyrotoxicosis at the material time and that there was no evidence of that.

Dr Grant was unaware “of any psychiatric literature in the journals which talk about the interaction between thyrotoxicosis and the ingestion of LSD or other hallucinogens”, but, “[f]rom the theoretical point of view, I would expect that one who had a raised level of thyroid hormone or who had thyrotoxicosis would be more susceptible to both the effects of alcohol and hallucinogens than would the normal person and I wouldn’t be surprised to hear that someone who was thyrotoxic and took LSD became very psychotic”. Dr Grant said that thyroid dysfunction on its own could not explain the appellant’s “very bizarre” and “out of character” behaviour and that his “... theory in this case is that this man suffered a particularly severe toxic psychosis from one dose of LSD and that ... is very likely to be the outcome of underlying dysfunction from the thyroid disorder affecting the brain function and making the effects of the LSD much more severe than they would otherwise have been”. Dr Grant was of opinion that there was at very least a defence of diminished responsibility, but he considered that the defence should be one of unsoundness of mind, with the appellant’s thyroid condition being one of the important factors. He said:

“... I believe he was suffering from that disease of the mind at the time, that is, a toxic psychosis resulting from a combination of thyroid disease and intoxication with alcohol and LSD and if the condition was as severe as he described, then he was so disturbed as to be deprived of those capacities [set out in s. 27 of the Criminal Code] ... .”

Dr Varghese also considered that thyrotoxicosis on its own was not likely to have deprived the appellant of any of the relevant capacities or to have substantially impaired them but that, if the appellant’s account of events was accepted, he would have lacked the capacity to know what he was doing and all three of the relevant capacities would have been impaired. His evidence included the following two passages:

“... if his account of the events at the time of the killing are to be believed, then the description ... is consistent with what I call an organic psychosis with prominent distortions of perception ... I consider that the cause of this organic psychosis is likely to be complex. It is certainly consistent with LSD use but there is also the question of alcohol consumption and the possibility that he suffers from and may have suffered [at] the time from thyrotoxicosis ... I did not consider that thyrotoxicosis, while it may cause some psychiatric symptoms, could explain what had happened, but the possibility was that while this was entirely consistent with LSD psychosis, in theory at least it is likely that all three conditions, that is, the alcohol ingestion, the thyroid illness, and the LSD contributed to the mental state at the time.”

“... if you regarded the thyrotoxicosis as having additive effect on the [LSD]
psychosis, then that would qualify as a state of mental disease.”

However, Dr Varghese also stated that, if the appellant experienced the psychosis he described, LSD would have been the major cause. Further, there is no experimental or clinical evidence that thyroid toxicosis “could have contributed to the picture”, although he considered that possible; any elevation in the appellant’s thyroid hormone level could have had an “additive effect”.

Broadly speaking, the appellant’s arguments began from the proposition it was a reasonable possibility (at least) that thyrotoxicosis had contributed to his mental state at the time when he killed Ms Hoffman. It was open to the jury to accept the evidence of Dr Grant, which put the defence case on insanity and diminished responsibility at its highest. It was accepted that, although Graves’ Disease can cause mental disease or infirmity, the appellant’s Graves’ Disease did not, of itself, do so; however, Dr Grant’s evidence was that a toxic psychosis resulted from a combination of thyroid disease and intoxication with alcohol and LSD and that the thyroid condition was one of the important factors in that process. Accordingly, although the appellant’s Graves’ Disease was material only in combination with alcohol and LSD, it was submitted that the prosecution had not proved beyond reasonable doubt that he intended to kill Ms Hoffman or cause her grievous bodily harm (Criminal Code, s. 302(1)(a)), that the trial judge had misdirected the jury with respect to intent, and that his Honour had wrongly excluded from the jury’s consideration whether:

(i)         the appellant was criminally responsible despite:

(a)	s. 23 of the Code, and
(b)	s. 27 of the Code; or

(ii) his criminal responsibility was diminished under s. 304A of the Code.

When a man kills a woman by striking her head a number of blows with a tomahawk, then cuts off her head and buries or hides her head and body, he will - other than in exceptional circumstances - be guilty of murdering her; i.e., of unlawfully killing her with intent to cause death or grievous bodily harm (Criminal Code, sub-s, 302(1)(a)). Only one exceptional circumstance is raised in this case to negative intent or exclude (Code, ss. 23 or 27) or diminish (Code, s. 304A) the appellant’s criminal responsibility; namely, that when he struck Ms Hoffman’s head with the tomahawk, he was hallucinating, and thought that he was striking out at approaching birds. A number of possible causes for the appellant’s claimed hallucination were discussed in evidence and argument, only one of which might possibly have assisted him; i.e., that his Graves’ Disease combined with LSD which he said he had ingested and, perhaps, alcohol which he had consumed, to produce the hallucination. The existence of that possibility was relied on by the appellant for contentions that the jury should have had a reasonable doubt concerning whether:

(a)         the appellant intended to kill or cause grievous bodily harm to Ms Hoffman;

(b)        the appellant’s act in striking Ms Hoffman’s head with the tomahawk[1] occurred independently of the exercise of his will and/or her death occurred by accident;

[1]              According to the appellant, that was the material “act” within the meaning of sub-s. 23(1).

(c)         at the time, the appellant was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act;[2] and/or at the time of doing the act which caused Ms Hoffman’s death, the appellant was in such a state of abnormality of mind, arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury as substantially impaired his capacity to understand what he was doing, or his capacity to control his actions, or his capacity to know that he ought not have done the act.[3]

[2]              The appellant did not expressly rely upon sub-s. 27(2), but its incorporation into the debate would add nothing of significance for his purposes.

[3]              In the interests of simplicity, I have expressed all the above propositions as though the prosecution carried the burden of proof throughout.

The prosecution raised significant obstacles to the appellant’s submissions,[4] but, in my opinion, such issues need not be considered unless the appellant succeeds in his arguments attacking the jury’s implicit conclusion that he intended to kill or cause grievous bodily harm to Ms Hoffman; that conclusion necessarily involved satisfaction, beyond reasonable doubt, that when he struck Ms Hoffman’s head with the tomahawk, the appellant did not think that he was striking out at approaching birds. With its rejection of even the rational possibility that the appellant had that belief, the jury removed the essential foundation of the appellant’s other arguments.

[4]

In the circumstances, unless the appellant’s arguments concerning intent succeed, it is unnecessary to consider how similar issues should be approached in the future, or how they should have been approached on this occasion in case the jury was not satisfied beyond reasonable doubt that the appellant intended to kill or cause grievous bodily harm to Ms Hoffman.

The alleged misdirection with respect to intent was a failure “to direct the jury that they could take into account the appellant’s thyroid condition and its effects in determining whether they were satisfied he had the requisite intent”. This ground was added late and the point was not taken at trial; counsel for the appellant at trial said that he wanted no redirection, which is not surprising, since the complaint now made is without substance on a fair reading of the summing- up.

The appellant’s other argument in relation to intent described the prosecution case as “circumstantial” and asserted that “the jury could not reasonably have been satisfied beyond a reasonable doubt that the appellant intended to kill or do grievous bodily harm to the deceased”. The essential foundation of this argument was the appellant’s own evidence, including his denial that he intended to kill or cause grievous bodily harm to Ms Hoffman and his statements concerning his alcohol consumption, LSD ingestion, hallucinations etc.; his submission was that such evidence raised a reasonable hypothesis consistent with innocence and must have caused a reasonable jury, acting reasonably, to have at least a reasonable doubt concerning whether he had the intent which the prosecution had to prove. However, it is meaningless to talk of a reasonable hypothesis consistent with innocence except by reference to evidence which a jury has accepted or must accept if the prosecution is to succeed, and there was absolutely nothing in the evidence which precluded the jury from rejecting in their entirety self-serving aspects of the appellant’s version of events; for example, the appellant’s evidence that he had ingested LSD, hallucinated and responded in the manner and circumstances which he described. It is misconceived to assert, as the appellant did, that the jury must have had at least a reasonable doubt because the appellant gave a “reasonable explanation”; there were “strong indications” that he had taken LSD, and “[n]one of the evidence could be said to be clearly inconsistent with his account”. I am unable to comprehend the process of reasoning which asserts that, when a person kills another with a tomahawk but says that he or she did so while hallucinating after ingesting a drug which can cause hallucinations, the jury must have a reasonable doubt whether there was an intention to kill or cause grievous bodily harm and hence must acquit of murder.

As I have indicated earlier, once the appellant fails on his argument in relation to intent, the appeal must fail.

Accordingly, I would order that the appeal be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 13th day of September 1996

I have the advantage of reading the reasons for judgment of the President and of Ambrose J. As both have set out the relevant facts at some length I do not propose to say anything further about them.

I agree with the President that, on the case and with the directions that went to the jury, it cannot be said that the verdict was unsafe or unsatisfactory. A reasonable jury, so directed, was entitled to reject the self-serving evidence of the appellant and to conclude, as was then almost inevitable, that when he struck his victim he intended either to kill her or to inflict grievous bodily harm on her. And although I agree with his Honour's conclusions upon the other grounds of appeal I propose to make some further comments on those grounds. They are ground 1 which complains about the learned trial Judge's direction on intent, grounds 2 and 3 which complain about his Honour's refusal to allow the defences of insanity or diminished responsibility to be considered by the jury and ground 4 which complains about the learned trial Judge's directions on s.23 of the Criminal Code, in particular that he should have directed the jury to consider whether the appellant's act of striking his victim with a tomahawk occurred independently of the exercise of his will.

The direction on intent

The specific complaint is that the learned trial Judge failed to direct the jury that they could take into account the appellant's thyroid condition and its effects in determining whether they were satisfied that he had the requisite intent.

Whilst it is true that, once the appellant's self-serving evidence was rejected, satisfaction of the relevant intent almost inevitably followed, the jury would have been more inclined to accept the appellant's evidence, or to have some reasonable doubt as to its untruth, if there was some independent evidence which supported it. There was arguably some such evidence but they received appropriate directions with respect to it. However the complaint here is not that the learned trial Judge failed to direct the jury with respect to the defence contention, and the evidence supporting it, that the appellant's condition at the relevant time may have prevented him from forming the necessary intention. Rather it was that his Honour failed to point out that a possible factor in that condition was an aggravation of the appellant's thyroid condition.

There are two answers to this contention. The first is that it does not matter for the purpose of negativing intent, whether the appellant's inability to have the relevant intent, if it existed, was caused by LSD or partly by LSD and partly by an aggravation of the appellant's thyroid condition: Criminal Code s.28(3).

Secondly there was no evidence that the thyroid condition was acute at the time the offence was committed and there was no evidence from which that acuteness might reasonably be inferred. Notwithstanding the absence of that evidence the learned trial Judge referred to the defence case that the appellant was under the influence of LSD with its effects possibly exacerbated by an underlying thyroid condition.

In those circumstances it is not surprising that experienced defence counsel below did not seek a redirection on this question and that the point now argued was not originally included in the grounds of appeal. This ground must fail.

Withdrawal of the defences of insanity and diminished responsibility

I agree with the President that it is a sufficient answer to these grounds that the jury rejected the rational possibility that the appellant had the belief, when he struck his victim with the tomahawk, that he was striking at approaching birds. A finding of loss or impairment of the appellant's capacity to understand what he was doing depended on acceptance of that possibility. And there was no other evidence from which the jury could have inferred that either of the other capacities referred to in ss.27 and 304A was either absent or impaired.

An act independently of the exercise of the appellant's will

For the same reason as the application of ss.27 and 304A require acceptance by the jury of the rational possibility that the appellant had the belief he described so too does the contention that his act was independent of the exercise of his will.

The appeal should therefore be dismissed.

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered 13/09/1996

The appellant was convicted of the murder of Monique Fay Hoffman on 16 April

1996.

Before turning to the grounds upon which he appeals against that conviction, it is convenient to outline briefly the facts canvassed as being relevant to them.

The trial lasted 9 days and during that time much evidence including expert medical and psychiatric evidence was called.

That the appellant caused the death of Monique Hoffman when he struck her on the head on more than one occasion with a tomahawk was not in issue.

The appellant made statements to police officers investigating the death and indeed gave evidence upon his trial to the effect that shortly prior to his inflicting those blows upon the deceased, he had embarked upon an enterprise with her which involved their breaking and entering premises to be selected at random for the purpose of stealing articles of value to be found in them. They used a motor vehicle owned by the deceased which she drove upon this venture. In the course of their travels and before they had broken and entered any building on the night in question, the deceased brought her motor vehicle to a halt on a track a little distance removed from a shed in an industrial area which they proposed to reconnoitre for their purposes. While at that location the appellant struck the deceased on the head with a tomahawk on more than one occasion killing her.

Eventually the appellant was questioned by investigating police officers and he admitted his involvement in the killing.

The appellant had taken some alcohol before setting out with the deceased upon their joint breaking and entering venture. He asserted that while they were waiting at the site where he killed the deceased they had both consumed a drug LSD.

The evidence disclosed that the appellant suffered from a thyroid condition known as Graves' disease which sometimes causes an elevation in thyroid hormone levels which may have an adverse effect on the brain. In interviews with investigating police officers and indeed in the course of evidence which he gave upon his trial, the appellant said that after consuming the LSD which the deceased gave him, he commenced to hallucinate and thought that he saw large birds coming down towards the deceased and himself. He said that he reached down to his belt and took out a tomahawk that he kept there for the purpose of facilitating his breaking and entering of premises and started to swing the tomahawk at the birds he thought he could see. He said that at some stage he became aware that the tomahawk "got stuck" and he thought that he had hit one of the birds, but then saw the deceased lying on the ground. He said he became panicky, took the body of the deceased to her car, and put it in the boot. He then drove around for some time and eventually drove to his home from where he spoke to a lady friend by telephone. He told her that he had stolen the motor vehicle of the deceased and had to get rid of it and asked her to meet him at a specified place on a road. He said that he then collected a mattock and spade and some petrol to be used to set fire to the car of the deceased. He drove the deceased's car to the location where it was eventually found, removed her body and put it in a ditch. He said that he had the feeling that the deceased was looking at him and thought that she was going to return to life and get him so he cut off her head to prevent this happening. He said that he covered the body with dirt and sticks and set fire to it. He then put petrol on the car and set fire to it. He walked some little distance away when he realised that he had the head of the deceased in a bag in his hand; he buried the head in the ground before making his way back to the roadway where he met his lady friend who was waiting for him at the prearranged meeting place.

He told a doctor that the following day he did not really know that he had killed the deceased; the whole event seemed like a strange dream; but after seeing a report on the television news he found registration plates of the deceased's car in a pocket of his pants and realised he must have killed her. He then endeavoured to dispose of items of evidence that might incriminate him. It was the next day that he was interviewed by police when he eventually confessed his involvement and took them to the place where had buried the head of the deceased and to other places where he had taken steps designed to avoid his being linked with the killing. The appellant denied that he had any motive whatever to kill the deceased; she was in effect his partner in crime and they had had no disagreement and he had no reason to harm her.

Upon his trial the deceased sought to raise a number of matters by way of defence. Basic to all those matters was the fact that he suffered from Graves' disease.

Independent evidence showed that he had received treatment for this condition for a significant period of time. That condition might be controlled by the taking of drugs regularly. The appellant however said that he had not been taking drugs prescribed for him by medical practitioners treating him for that condition.

Essentially it is contended for the appellant that the learned trial judge erred in law -(1)By refusing to permit the jury to consider upon the facts, which I have briefly outlined, and upon the expert medical evidence to which I will shortly refer, whether -

(a)a defence of insanity under s.27 of the Criminal Code was available; and

(b)a verdict of manslaughter on the ground of diminished responsibility under s.304A of

the Criminal Code was open;

(2)By declining to direct the jury to consider whether -

the Crown had proved that the death of the deceased was not accidental as contemplated

by s.23 of the Criminal Code; and

(3)by failing to adequately direct the jury that the fact that the appellant suffered from
Graves' disease upon the medical evidence, particularly considered in the context
of his evidence, was relevant in determining whether any unlawful killing by the
appellant was intentional.
The principal contention on behalf of the appellant was that a defence under s.27 or

304A of the Criminal Code was available because the condition of Graves' disease which existed prior to the consumption of LSD and/or alcohol may have been exacerbated by that consumption to such an extent as to deprive him of or to substantially diminish or impair one of the capacities specified in s.27 of the Code.

There was no direct evidence whatever that the appellant displayed any symptoms of a thyroid problem immediately prior to or subsequent to the killing. He gave evidence of a mental condition consistent with such symptoms at the time of the killing. Those symptoms were equally consistent with the consumption of LSD. Part of the evidence as to the condition of the appellant prior to the killing was a video film taken of him at a Christening party he attended some hours before the killing. His demeanour, movements and appearance generally at this party recorded upon that video film were studied by an endocrinologist practising at Royal Brisbane Hospital. The recognition of observable symptoms of a person suffering from an overactive thyroid gland is within the speciality of that doctor and he said that upon his examination of that video film of the appellant there were no signs apparent to him of overactivity.

Professor Bourke was called on behalf of the appellant to give evidence of the effect of excessive thyroid hormone on the behaviour of a person suffering from that condition. He said that elevation of thyroid hormone levels can lead to personality changes and sometimes to severe symptoms leading to psychiatric illness similar to schizophrenia involving problems with thought processes, delusions and even visual hallucinations.

The offence was committed on 25 June 1994. On 6 July 1994 thyroid function tests were performed on the appellant which were abnormal on that day. However Dr Bourke said that it was impossible to draw any inference from those tests as to what if any abnormality the appellant may have been suffering from as the result of any thyroid condition which may have been present at the time of the killing.

He did express the view that one of the common effects of the consumption of LSD was the suffering of delusions. He said that there was no support in the expert literature for any contention that there could be an interaction in the brain to "cause potentiation of LSD effects by the thyroid hormone".

Accepting the evidence of the appellant, an examination of that evidence and that of the medical experts called upon his trial - Dr D'emden, Professor Bourke, Dr Grant and Dr Varghese - does not permit an inference to be drawn that at the time of the killing the appellant was suffering from any thyroid related problem which considered alone affected any of his capacities referred to in s.27 of the Code. It was the appellant's contention that it was such a thyroid condition at the time of the killing which exacerbated by consumption of LSD may have led to the hallucinations or delusions which he asserted he experienced at the time he struck the deceased with the tomahawk.

It was strongly contended on behalf of the appellant that it was open to the jury to consider whether insanity, under s.27, or diminished responsibility, under s.304A, could be found upon the evidence; that consumption of LSD and/or alcohol shortly before the killing may have reacted with the appellant's pre-existing thyroid condition, which had been quiescent up until that time, in such a way as to deprive him of or to substantially impair one of the capacities specified in s.27.

In my view in this case, even accepting the version of events given by the appellant, there was no evidence of any facts from which a jury could infer that at the time of the killing, ignoring the effect of consumption of LSD and/or alcohol, he was in such a state of mental disease or natural mental infirmity as to deprive him of or to substantially impair one of the capacities specified in s.27.

Dr Varghese said that leaving aside the consumption by the appellant of alcohol and the drug LSD, considering all the evidence as to the level of thyroid hormone at the time of the killing, he would not say that that thyroid hormone level would be likely to have deprived him of or to have substantially impaired any of the relevant capacities specified in s.27. He expressed the view that a thyroid toxicosis "could have contributed to the picture" but that there was no experimental evidence or any clinical evidence to support that proposition. He said that the major cause of any psychosis which accepting the assertions and evidence of the appellant may have been present when he killed the deceased was the consumption of LSD. He said that the whole version of events given by the appellant both to investigating police officers and in evidence could be explained by the consumption of LSD and that in any event whatever theoretical contribution his thyroid abnormality may have had, the major cause of any psychosis from which he may have suffered at the time on his version of events was the consumption of LSD. The furtherest Dr Varghese was prepared to go was to say that he could not deny that any elevated hormone level in the appellant - if indeed at the relevant time he did suffer from such a condition - may have had "an additive effect". In my view, para. 2 of s.28 of the Code prevents the appellant from relying upon the provisions of s.27 of the Code, because on the whole of the evidence he intentionally consumed alcohol and LSD without the consumption of which he would not have suffered the delusions/hallucinations which on his evidence and assertions to police officers led to his killing the deceased. Voluntary intoxication does not give rise to a defence based upon the combined effect of ss.27 and 28; it may to a charge which involves proof of a specific intent: R. v. Kusu [1981] Qd R 136. Voluntary intoxication does not make available a defence under s.304A: R v. Nielsen [1990] 2 Qd R 578.

In my view upon the state of the evidence, the learned trial judge was perfectly correct in declining to permit the jury to consider insanity under s.27 or diminished responsibility under s.304A.

With respect to the appellant's complaint about failure adequately to direct as to the application of s.23 of the Code, it is clear that upon his version of events given to investigating police officers and again in the course of his evidence upon trial the tomahawk came into contact with the head of the deceased when he swung it without any intention on his part to kill her or indeed to do her any injury. The explanation advanced for his action was the delusions or hallucinations from which he was then suffering.

Upon the state of the evidence, it would not have been open to the jury to infer that those delusions or hallucinations resulted from any possible thyroid condition from which the appellant may have suffered apart from its exacerbation by his ingestion of alcohol and LSD.

For reasons already given a defence based upon s.27 and/or s.304A was clearly not available because upon the whole of the medical evidence it would not have been open to the jury to infer that any delusions or hallucinations from which the appellant may have suffered may have occurred quite apart from his voluntarily consumption of LSD and perhaps alcohol.

The evidence - which came only from the appellant - was that he was swinging a tomahawk so close to the deceased that unintentionally it came into contact with her head causing her death. It was the case for the Crown that the killing was intentional. It is certainly not the law that all non-intentional killings become accidental ones of the sort defined in s.23 of the Criminal Code. Indeed the provisions of s.23 are made subject to those of s.289 of the Code which imposes a duty on persons in control of things dangerous if not used with proper care to take care in their use.

Upon the facts of this case it is clear that the appellant could not rely upon a defence of non-insane automatism under the first general rule in s.23 of the Code. His whole case was based upon a mental disease or natural mental infirmity exacerbated by the consumption of LSD and/or alcohol. His evidence was to the effect that he deliberately took the tomahawk from his belt and swung it through the air in the vicinity of the head of the deceased while under the delusion or hallucination that birds were diving towards him and the deceased. In my view, the learned trial judge was correct in holding that upon the evidence no defence of non-insane automatism was raised. The defence raised was that the deceased was killed by the volitional or willed act of the appellant motivated by a delusion or hallucination,and that he did not intend by swinging the tomahawk in the vicinity of her head to cause her death.

The defence which the appellant sought to raise was one based upon mental disease or natural mental infirmity which may have been exacerbated by the intake of LSD and alcohol. Essentially it was a defence under s.27 of the Code. That defence however was not available in my view for the reasons I have already expressed - i.e. because he had voluntarily taken the LSD and alcohol, s.28 prevented him from relying upon the provisions of s.27. It is clear from the majority judgments in The Queen v. Falconer (1990) 171 CLR 30 that upon the facts of this case the appellant sought to raise a defence under s.27 which did not raise a question of voluntariness as a separate and distinct issue under s.23 of the Code. Section 23 of the Code has an effect only where the evidence postulates the operation of events upon a sound mind - not one to which s.27 and/or s.28 applies.

The learned trial judge declined to allow the jury to consider the possible application of the first general rule in s.23 of the Code. However he was persuaded to sum up to the jury on the second rule in that section - whether the death of the deceased was "an event which occurred by accident". In my view the learned trial judge correctly directed the jury that the appellant would not be criminally responsible for the death of the deceased, if he caused it, unless he foresaw that death or an ordinary person would have foreseen that death as a likely result of what he did. He directed the jury that the onus was upon the Crown to establish that if the accused did kill the deceased it was not an accident in that an ordinary reasonable person would have foreseen her death as a likely result of his particular actions that night.

No real complaint is made on behalf of the appellant as to the adequacy of the directions given to the jury on the second general rule under s.23 of the Code. The real complaint is that the trial judge ought to have directed the jury as to the first limb of that section - that is, whether upon the evidence the appellant's his striking the deceased on the head with the tomahawk had occurred "independently of the exercise of his will".

In my view the learned trial judge was correct in declining to so direct the jury on the facts of this case because the only basis upon which it could be contended that the appellant struck the deceased independently of the exercise of his will was that when he did so he was acting under the influence of his thyroid abnormality exacerbated by the consumption of LSD and alcohol.

For reasons I have already given, s.27 of the Code was not available to the appellant because of the express wording of s.28 which unequivocally confines the application of s.27 to the case of a person who has not intentionally caused himself to become intoxicated or stupefied.

Stated shortly, the Crown conducted the prosecution on the basis that the appellant had unlawfully killed the deceased and had done so intentionally.

The defendant denied that he had intentionally killed the deceased although he admitted that he had killed her. He attempted to rely upon s.23 of the Code as a defence to the charge to the extent that it involved an unlawful killing.

The basis of the defence however involved his relying upon the voluntary consumption of alcohol and LSD and the effect of that consumption upon his ability to form an intent to kill. The inability to form an intent was said to have the result that an act which on its face might be thought to be a willed act, was to be necessarily categorised as an act performed independently of the exercise of his will.

In my view for the reasons given in the majority judgment R v. Falconer (supra) this approach was not open to the appellant.

With respect to the directions given by the learned trial judge on the question of intention, in my view his Honour clearly directed the jury to have regard to the evidence relating to intoxication and the consumption of LSD and to any thyroid condition from which the appellant may have been suffering at the time of the killing. It is unnecessary to go beyond part of a specific direction given to the jury:

"The gravamen of his evidence was that when he killed her he was acting in a fairly immediate sense under the influence of the LSD in conjunction perhaps with the alcohol he had drunk and in conjunction with what we know from doctors of his possibly elevated thyroid level. The accused would deny the existence of any intention with relation to Monique at the time of the killing."

A little later in his summing up he told the jury:

"He (counsel for the appellant) reminded you of the evidence of the medical specialist, to the effect that the accused's behaviour was consistent with the ingestion of LSD with its effects possibly exacerbated, enhanced by an underlying thyroid condition".

In my view no criticism can be levelled at the direction on the issue of intention to be proved by the Crown upon the murder charge.

In my view the appellant fails on each of his grounds of appeal.
I would dismiss the appeal.

(a)	As to s. 23, see, for example R. v. Rafter (C.C.A. 162 of 1991, unreported, 28/10/91); R. v. Taiters (C.A. 310 of 1995, unreported, 16/7/96).
(b)	As to s. 27, see s. 28, and, for example, R. v. Kusu [1981] Qd.R. 136; R. v. Falconer (1990) 171 C.L.R. 30.
(c)	As to s. 304A, see, for example, R. v. Whitworth[1989] 1 Qd.R. 437; R. v. Nielsen [1990] 2 Qd.R. 578.