R v Pfitzner

[1996] SASC 5462

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE CJ(1), MATHESON(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law - Manslaughter - appellant acquitted of murdering his adoptive mother but convicted of alternative charge - admissibility of statements made by appellant during interviews with the police whilst psychotic - evidence of a psychiatrist and of a neuro-psychologist that his statements were unreliable - whether statements should have been excluded as unfair - misdirection on alternative verdict. Morris v R (1987) 163 CLR 454; McDermott v The King
(1948) 76 CLR 501; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Parker (1990) 19 NSWLR 177; Peter Edward Jones (1995) 78 A Crim R 504, applied. Sinclair v The King (1946) 73 CLR 316, distinguished. R v Smith
(1992) 58 SASR 491; A H Omarjee (1995) 79 A Crim R 355, considered.

HRNG ADELAIDE, 13 December 1995 #DATE 20:2:1996 #ADD 28:3:1996

Counsel for appellant:     Mr W F Braithwaite

Solicitors for appellant:    Bronwen Josephine Waldron

Counsel for respondent:     Mr P J Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 DOYLE CJ The appellant appeals against his conviction for manslaughter arising out of the death of Mrs Ailsa Pfitzner. Mrs Pfitzner was a 73 year old widow living alone. She was discovered dead in her house at Nailsworth at about 5.30 pm on 16 September 1994. She had suffered 9 stab wounds to the head and 10 to her back. Her back was broken.

2. There was some conflicting evidence as to the time of death. One expert put the time of death as occurring some time in the afternoon of the previous day, that is, 15 September. A defence expert put the time of death as being in the early hours of 16 September. There was other evidence which could support an inference that the death had occurred in the earlier period, including the clothing of the victim and the lack of any signs of an evening meal.

3. On 17 September the police arrested Mrs Pfitzner's adopted child, the appellant; he was charged with murdering her on 15 September. On 13 October he was admitted to James Nash House, an institution for psychiatric care. During his time at the Adelaide Remand Centre and James Nash House, the appellant attended a number of interviews with the police and was seen by psychiatric experts.

4. The appellant stood trial for murder and was convicted by a jury on the alternative count of manslaughter. The appellant was sentenced soon afterwards; a sentence of 12 years' imprisonment was imposed, and a non-parole period was fixed at 10 years.

5. The appellant now appeals against his conviction and also against the sentence imposed by the trial judge. I will deal with these in turn.

APPEAL AGAINST CONVICTION
6. The appellant raises three grounds of appeal, all of which are related to the admission into evidence of the interviews which the appellant had with police after his arrest. It is contended, first, that the interviews should not have been admitted; second, that the verdict of the jury was unsafe, unsatisfactory and unsupported by the evidence; and thirdly, that the judge erred in failing to direct the jury that it would be dangerous to convict the accused on the basis of psychotic confessions when not corroborated by other evidence.

THE INTERVIEWS
7. The initial challenge to the interviews was made at the voir dire. The challenge focussed on the unfairness to the accused which might be generated by the evidence of the interviews, on the basis that the interviews contained material which was prejudicial in nature and highly unreliable. Therefore, the accent was on the use of the trial judge's discretion to exclude unreliable material. However, as will be seen, I will advert also to other aspects which arise on appeal.

8. The police interviewed the appellant on four occasions, on 17 September, 13 October, 7 November, and 16 November. In each case, the appellant initiated the process by requesting an interview with the police; it seems that these interviews, or at least one of them, were proceeded with against the advice of the appellant's solicitor, who was present at the second, third and fourth interviews.

THE FIRST INTERVIEW
9. The first interview was relatively straightforward, and there was no objection by counsel for the appellant to its admission. The appellant indicated that he was prepared to talk to the police, with the caveat that "sometimes I lose the plot"(p2). From the transcript of the interview he appears to have given lucid and detailed statements as to his movements on the day in question and afterwards. He said that he had been to his mother's unit at about 4.00pm, and gave reasons for visiting, including a desire to speak to her about taking a matter up with a human rights organisation in relation to his admission to Hillcrest Hospital while young (p3). He stated that he had knocked on the door, she had been asleep in a chair, and had let him in. He had arrived by bus and talked to a lady who lived in the same units (p4). After leaving, he made his way to the Collinswood Post Office, and was there by 4.45pm. He then shared a taxi from there to home (p5). He described the taxi (p6). He also described his movements subsequent to arriving home.

10. The appellant said that he had arrived and given his mother a hug and a kiss. He showed her a file relating to the Hillcrest Hospital admission. They had sat down and had a chat. They had then talked about the matter in the file. The appellant denied having had anything to do with her death. He said that he had left while his mother was speaking on the telephone to a friend from the North Adelaide Football Club called Dottie. He couldn't wait any longer so he had left.

THE SECOND INTERVIEW
11. The second interview was conducted on 13 October, the day that the appellant was admitted to James Nash House. It was in the presence of the appellant's solicitor. The appellant was asked how the interview had come to be held, and stated that when he had woken that morning he had said a prayer and asked God what he should do (p2). He said (p2):
    "I keep getting this message in my head, "If you believe you
    killed your mother, ring the Police, don't listen to the
    solicitor, do what God says, ring the police, you've
    assaulted your mother Simon, you didn't kill her, your
    mother's alive, you assaulted your mother Simon, she's
    dead."

12. He said that he was advised by God and so contacted the police.

13. In the interview, he stated that he believed he kept having a dream in which he got into an argument with her, he had hit her, and then woken up later in a pool of blood. He stated that he believed he had killed his mother (p4).

14. When asked why this was so, he explained that he didn't know about his mother's injury until the police had arrived, but he had apparently not acted the way a person should upon hearing their mother was dead (p4). He stated (p4):
    "... I have had dreams and I have heard voices saying,
    'You're guilty, you're guilty, your innocent, Pfitzner,
    you're guilty, Pfitzner, you're innocent.' ... I, I, the
    voices are telling me I was guilty, and not guilty, and
    guilty and not guilty, and would own up to it or deny it,
    and which was I going to go and which way I wasn't going to
    go, and I have had this for 9 days. And I can hear the
    voices now coming through that door. 'Pfitzner, you're
    lying, Pfitzner you're guilty, Pfitzner, you're not guilty,
    Pfitzner, you murdered your mother. ... since they put this
    pump in, I have had voices, that I do talk to and I am not
    ashamed to admit that I talk to. I keep having this dream
    and I, I, I, I said to, um, my, I, I, I am going to call the
    voice Satan, that Satan said to us that if my mother died
    I'd won a house.'" (The reference to the pump relates to a
    device which had been inserted in the appellant after a
    brain haemorrhage in order to relieve pressure in his head).

15. He stated that he believed he had hit his mother, and knifed her (p5,6). When asked why he thought he had knifed her, he explained that his dream told him that this was what he had done. He said that he had woken up in a pool of blood (p6). There were other passages similar to that extracted above.

16. It is noticeable, and in my opinion significant, that throughout this interview, every admission is explained to be on the basis of what a voice was telling the appellant, or a dream that he had had.

17. At one point, the appellant asked about a machine running in the next room. He was told it was probably an air conditioner, and he replied, "I can hear 'Pfitzner's lying, fuck you, fuck you'" (p9). Later, he again heard voices from this machine.

18. He was questioned about a number of other matters, including his rucksack and the circumstances of sharing a lift in a taxi with another person. He appeared to have accurate recall of these matters.

19. When asked about the knife he had used to kill his mother, he explained that he hadn't brought one with him; he was asked if he had used a knife belonging to his mother to kill her, and he replied that he did not know (p9). He was asked about the location of the knife, and stated that he had no idea where it was p14).

20. Another notable passage is the following (p15):
    "Q You are obviously, you are aware that your mother had
    numerous stab wounds to her head and parts of her body.
    A The charge sheet read that she had been stabbed 19 times
    and had her back broken.
    Q And had her back broken, that's right. Do you know how
    her back may have got broken.
    A I don't know, this is why I'm here, because I want to
    find out." (At trial it was shown that the appellant had at some earlier time been provided with a charge sheet which contained details of the injuries).

21. And soon afterwards (p15-6):
    "Q Do you know what happened to these keys (the car keys).
    A I don't know. Look I believe that if I killed my mother,
    what I can't work out, is why I didn't take the car.
    Q Okay, so you ...
    A Look if I killed my (mother), I believe I might have, but
    why didn't I take the car, and why didn't I leave the state,
    because the car would get me interstate."

22. There were further parts in the interview when he admitted stating that he had started to think he had killed his mother, based on voices in the night, and after a particular point in his visit "the memory stops" (p17).

THE THIRD INTERVIEW
23. The third interview took place on 7 November, once more in the company of the appellant's solicitor.

24. The interview initially revolved around detailed questioning as to where the appellant had been, and as to his knapsack. He appeared to have been lucid and to have had quite detailed recall.

25. However, the appellant then asked if he might make a statement (p5). He explained that he believed in god, and also that he had made a pact with the devil. He had visions of a green plastic bag with a bloodstained sheet, and also with a pair of jeans. He talked in terms of visions and voices in his head. He stated that (p6): "It's like to the point that I don't know whether the voices were real, or it's in me head, or it's just imagination. I don't know any more."

26. He said he believed he had killed his mother, on the basis of the pictures in his head. He had done it with a crash panel tool, which he had picked up from a friend.

27. There were further questions about the knife used, and about his subsequent movements. He was also asked about, among other things, his mother's keys, and also his mother's false teeth (which had been taken from the unit). He indicated that he had disposed of his bag in a dump bin.

28. He was also asked about a bloodstained sheet that he had earlier mentioned. He talked about wiping down areas in the unit with the sheet (p19):
    "When I came home from court on Friday I closed my eyes in
    James Nash, and I saw myself hitting mum in the head. I
    also saw myself wiping with a sheet, and I don't know what
    for, and I don't know how. I just don't know."

29. He stated that he had got the sheet from one of the chairs that his mother had; she used to keep a sheet on it.

30. One of the interviewing officers noted at the time that the appellant appeared to have precise recall of his movements, but was not good in relation to the incidents surrounding his mother's death. The appellant was questioned again about the death of his mother and again described a pact with the devil, and voices which told him he had killed her. He was asked (p22):
    "Q Simon, aside from the voices, did you kill your mother.
    A I don't know. I do not know.
    Q You've stated on numerous occasions that you ...
    A I shut my eyes and I see myself clobbering my mum, and I
    see myself knifing my mum, but honestly, I don't know, and
    I'll take any test to prove I don't know.
    Q You say ...
    A If I knew I wouldn't be here.
    Q Alright. Simon, you say that you knifed your mother, is
    that what the voice is telling you.
    A That's what the voices are telling me and that's what the
    pictures told me. I've got a charge sheet that says I
    knifed my mother 19 times. Now, I can't remember, and I
    can't remember seeing that I knifed my mother 19 times. ..."

31. He was further questioned about the clothing that he was wearing at the time, and whether blood was on it. He also stated that he believed his mother was alive when he left. There was then further detailed examination as to the killing of his mother.

THE FOURTH INTERVIEW
32. In the fourth interview, which took place on 16 November, the appellant made further admissions. He explained that he had had a vision in his sleep showing him the location of the mallet with which he had killed his mother (p2). When asked about his previous statements as to killing his mother, he replied that:
    "I, I close my eyes I was praying and I see a vision of me
    striking a couple of times then ..."

33. He was questioned about this mallet and also the knife with which he had killed his mother. He repeated the matter of his mother talking on the telephone to "Dottie" (p5). He gave an extensive description of a particular knife which he might have had, only to say that it was "not a knife that you could attack somebody with", and hence probably not involved (pp9-10). He was also asked again about his movements and his clothing. He repeated his statements about a sheet.

34. When directly asked whether he murdered his mother with the knife, the appellant responded, "Not that I know of" (p9). He described the visions that he had had, and spoke of his desire to find out what had happened (p9). He told the police he did not know whether he was guilty or not, but that it was their job to tell him.

THE APPELLANT'S MENTAL CONDITION AT THE TIME OF THE INTERVIEWS
35. It is clear that the appellant suffers from a mental illness.

36. Dr Raeside, a psychiatrist, was called on the voir dire and testified that the appellant was born with a genetic condition known as Klinefeldt's syndrome, in which a person has three sex chromosomes instead of two. This condition often leads to psychological problems. The appellant suffered from such problems and he was admitted to Hillcrest Hospital at the age of 12, for about two years (93-4). It was stated that the appellant had (94): "Developed a significant personality disorder with a mixture of anti-social features and other disturbances of his identity, or his sense of identity, as well as his ways of interacting with people."

37. In 1992 the appellant suffered a brain haemorrhage. An operation was undertaken in which a tube (known as a "shunt") and a pump were inserted in order to drain fluid out of the brain. The appellant subsequently complained of blackouts, memory problems, and severe headaches (94).

38. Dr Raeside also testified that, from his involvement with the appellant, it appeared that the appellant had suffered psychotic episodes (95). In such episodes, a person experiences hallucinations, such as that of a voice speaking to them, which are not founded in reality. They may also acquire fixed, false and unshakeable beliefs, and their thinking processes may become disturbed and illogical (96). A sufferer may, for instance, believe that a machine is speaking to him or her (96).

39. Dr Raeside did not consider that the appellant had a "formal" psychotic illness (such as schizophrenia), but that he experienced psychotic symptoms as a result of the various conditions from which he was suffering.

40. Dr Raeside gave detailed testimony as to his reasons for concluding that the appellant suffered such episodes; he was taken through his notes in some detail, and indeed in his reasons for ruling on the voir dire the trial judge found him to be an excellent witness.

41. The first time Dr Raeside examined the appellant was on 14 October, the day after the first challenged interview (the second interview). He had been admitted on 13 October in order to get help at the hospital in relation to the voices which he was hearing and which were apparently distressing him (100-1). In the initial consultation the appellant stated, among other things, that he had killed his mother and that Satan had told him to do it. Among other things, the appellant described voices in his head in a manner which suggested psychotic episodes. These were somewhat unusual symptoms, and Dr Raeside also noted that he was highly suggestible as to questions that were put to him in relation to these voices. He was also mildly thought-disordered. At the time, he noted that "The validity of his story is highly questionable, inconsistent and appears exaggerated but possibly some underlying truth" (99). He felt that a number of the appellant's symptoms were inconsistent with psychotic features; he was rather dubious as to what he had been told, but felt that the appellant should be observed more closely with an open mind as to his condition. Dr Raeside did not consider this to be a symptom of malingering or consciously intending to give false information; rather he suspected a confusion of description (100; 110-1).

42. The appellant was put on anti-psychotic medication (99). Over the next while, the appellant continued to present in the same manner as in the first consultation. He began to settle into the ward (99). However, he then began to talk about hearing voices from god and from the devil telling him contradictory things. He gave contradictory descriptions of things (99). By 24 October he was stating that he had voices in his head which were digitally constructed and put through the air conditioning system (101).

43. Dr Raeside commented that the appellant appeared to have hallucinations ranging from auditory hallucinations to experiencing his own thoughts loudly. He often became distressed and would ask to be killed or for the pump to be removed from his head (102).

44. Dr Raeside saw the appellant again on 8 November, the day after the second challenged interview (the third interview). The appellant was complaining of headaches, and stated that he had confessed his guilt to lawyers and the police. He said that he heard voices of God telling him he did not kill his mother. He heard contradictory voices. He also believed he had sold his soul and asked frequently to see a priest. Dr Raeside said that "the picture was of a persecuted man by a number of psychotic symptoms who was trying to make sense of his symptoms and trying to make sense of what was happening to him at that time ..."(103).

45. The appellant settled down further with additional drug treatment. By 16 November, the intensity of his psychotic symptoms had decreased. By 23 November, the appellant continued to have mood swings and bursts of irritability but denied hearing any further voices.

THE INTERVIEWS
46. Dr Raeside was asked to comment on the records of interview. He contrasted the behaviour of the appellant in the first and the second interviews; in the first, the appellant was coherent and responding appropriately to questions, but in the second he exhibited "bizarre" behaviour

(105). Dr Raeside described a pattern in the second interview which consisted of "thought disordered contradictory distorted description" of experiences, which pattern appeared to have been affected by psychotic thought processes
(106). In relation to the passages in the second interview involving the appellant's beliefs and experiences of voices, Dr Raeside considered that the appellant was probably trying to make sense of what was happening in his mind
(107); his motive was to have the police help him to do this (108).

47. Dr Raeside's opinion was that the appellant was psychotic at the time of the second interview on 13 October. His impression was that at this time the appellant would have had a cognitive understanding of court processes and the nature of guilt and innocence, among other things. He appears to have thought that the appellant was fit to plead at that time, but not fit to give adequate instructions to his lawyer (108).

48. Dr Raeside's opinion was that at the time of the second interview (that is, on 13 October) (at 116):
    "He really doesn't know whether he did or didn't (kill his
    mother) at that point. Then, I think that then leads him to
    say 'I believe I might have', or 'I believe I did'. ...
    Then he is relying on dreams and visions and voices telling
    him what he must have done. He says - it comes across in
    his words 'I must have done such and such' or 'I believe I
    did such and such'. At times, he relates this to the voices
    telling him that. But then, when he is pushed for more
    detail, he sort of falls off that track and says 'Look, I
    really don't know whatever' ..."

49. Dr Raeside was asked about the third interview, and stated that (109):
    "He continues to describe a number of the things he believed
    must have happened that he talked about in the interview of
    13 October, but my impression of that is that he is now
    basing that not on actual recollections of what he did, but
    basing it on the understanding, if you like, that he came to
    during that psychotic period. If I can give an example, on
    p.3, the answer to question 21, 'I close my eyes. I was
    praying and I see a vision of me striking a couple of
    times.' He is still not saying 'Now I remember what I did.'
    He is saying, 'The visions I had told me that must be the
    case', or whatever. In fact, most of what he is saying in
    that interview is 'I imagine this', or 'I have seen this in
    a vision', or whatever, but, in terms of psychopathology, it
    is a fairly bland interview and not much in it at all."

50. Dr Raeside expressed the opinion that the appellant was not psychotic in making these statements, but rather his statements were a consequence of earlier distorted thinking (110); the appellant was "perplexed" (109). Although the appellant described psychotic symptoms in the interview, he did not appear to be experiencing those symptoms but rather referring to the previous experiences (114). He appeared to be unsure of what was going on in his head (115). He also adverted to the charge sheet in the appellant's possession in relation to that interview (117):
    "He has possession of physical information by that stage,
    the charge sheet, and he got pictures and visions in his
    head trying to explain what he did. He is getting
    distressed again because of the contradiction in his head,
    not knowing and yet knowing some things."

51. Dr Raeside's views in relation to the fourth interview appear to have been similar to those in relation to the third interview, that is, the appellant was repeating beliefs which he had come to hold when psychotic
(121).

52. Dr Raeside was also directed to the matter of the appellant's statement to the police on 13 October that he had wiped up blood with a bed sheet which belonged to his mother. He was asked to assume that this was not true (and indeed the crime scene information indicated that this had not happened). Based on this assumption, he was asked whether one could rely on the statements generally on 13 October. Dr Raeside replied (119-20; and cf at 145):
    "Even without those assumptions and bits of factual
    knowledge, my opinion, based on seeing him at that time,
    would be that any information that he was giving would be
    totally unreliable and I would place little credence on what
    he was saying as being factual or not factual. ... I
    (would) think what he was telling me may or may not have a
    basis in fact. I would be then clinically drawn to seek
    corroborative evidence of what he was saying. If you then
    asked what I think, that would be consistent with that view
    which would be that I would place little weight on the
    validity of his comments."

53. He stated that it would be difficult without third party evidence to tell how much of the appellant's recollection was based on factual things and how much was a product of his own mind.

54. The trial judge asked Dr Raeside whether he thought that, as at 13 October, the appellant knew whether or not he had killed his mother. Dr Raeside's opinion was that the appellant did not know. The trial judge also asked this question in relation to 16 November, and again Dr Raeside replied in the negative (121).

55. Dr Raeside agreed that the last two interviews were as unreliable, as far as their connection to fact went, as the interview of 13 October (121).

56. In cross-examination, Dr Raeside agreed that the account given by the appellant in the second interview did not differ significantly from that given at the first interview, except as to what the appellant did or did not do at his mother's house. He was asked, essentially, whether this made him have more confidence that the disputed parts of the second interview arose from independent memory. Dr Raeside considered that these areas were where the appellant had been psychotic (134), and that he was attempting there to fill in gaps in memory based on psychotic symptoms (135). It was further put to Dr Raeside that the consistency between the interviews went towards providing independent proof of the accuracy of the appellant's statements. Dr Raeside's response seems to have been essentially that these consistencies were in relation to material that was not in dispute and which admittedly arose from recollection rather than psychotic episodes (136-7). It is unclear, but Dr Raeside may have agreed that the consistency in relation to the objective detail lent support to the idea that the account given in the psychotic interview might be brought about by recollection rather than delusion (138 line 6, but cf line 9).

57. Dr Raeside also agreed (145) that people in psychotic states are able to relate things that are essentially accurate. A person might have inaccurate perceptions of what the truth is, but it was not the case that a degree of psychosis means that that person's statements are necessarily incorrect.

MR REID'S EVIDENCE
58. The defence also called Mr Reid, a clinical neuropsychologist and forensic psychologist, who practises in, among other things, abnormal psychology and memory impairment.

59. Mr Reid had been asked to assess the appellant at James Nash House. On the two occasions that he saw the appellant (11 May and 2 June 1995) there were no apparent signs of psychotic illness.

60. Mr Reid was asked if, in his opinion, the assertions by the appellant in the interview of October 13, that he had killed his mother, had the quality of attempts at recollection by an amnesiac person, or alternatively of imaginings (158, 160).

61. Mr Reid considered that the statements of the appellant did not have the character of regained memories or recollections, but rather that of imaginings. Nor did they possess the character of flashbacks (160). In his view, the statements did not have the quality of deriving from perception
(163).

62. In cross-examination, Mr Reid admitted that there was nothing which would categorically count against the possibility of psychogenic amnesia. Such a condition might also lead to people conditionally admitting killing a person without apparently having clear knowledge (164).

63. Mr Reid also agreed that to some extent he had to take patients at face value when they reported to him. That is, Mr Reid considered it an issue for the court rather than for him as to whether the symptoms which patients reported were true. However, Mr Reid reported no indications of malingering.

The Trial Judge's Decision 64. Counsel for the appellant submitted that, on the basis of this testimony, the interviews should be excluded as being unreliable and prejudicial. That is, counsel invited the trial judge to exercise a discretion to exclude the evidence on the basis that its admission would be unfair to the accused.

65. The trial judge accepted the evidence of the facts of the examinations given by Dr Raeside. He also commented that he thought nothing wrong of the appellant's absence from the witness box on the voir dire. From this it appears that the trial judge's factual findings were generally in favour of the existence of a disorder as the appellant had presented it, and as Dr Raeside had described it. He did not, however, find Mr Reid a helpful witness.

66. However, His Honour saw no unfairness in admitting the evidence of the interviews. He applied R v Sinclair (1946) 73 CLR 316 and R v Parker (1990) 19 NSWLR 177, for the proposition that mentally ill people are not necessarily incapable of telling the truth. His Honour then commented that the submissions made by the defence went to the weight and value of the evidence. He saw no unfairness in admitting the evidence, stating that the jurors would be well appraised of the suggested unreliability of the interviews and the reasons for that unreliability.

Evidence at Trial 67. At trial, psychiatric evidence was given by Dr Raeside and Mr Reid in relation to the unreliability of the interviews. This evidence was in substance that given before the trial judge on the voir dire. In particular, Dr Raeside testified as to the unreliability and possible inaccuracy of the interviews in similar terms to his testimony on the voir dire, specifically mentioning the desirability of confirmatory evidence when assessing the accuracy of the interviews (eg 506, 518-9).

Admission of records of interview - voluntariness 68. The legal basis upon which one determines the question of whether the records of interview should be excluded is not clear.

69. The appellant's argument proceeded upon the factual basis that at the time of the first challenged interview the appellant was psychotic, that at the time of the second challenged interview he was psychotic but improving, and that at the time of the third challenged interview he was not psychotic but was reporting to the police things he had come to believe during his psychotic periods. In one way or another it was argued that the appellant's mental state was such that the admissions made during the interviews should be excluded because of their unreliability.

70. It was not argued that the admissions should be excluded on the basis that they were not made voluntarily. Each interview took place at the request of the appellant. He made it clear that he wished to speak to the police.

71. On the present state of authority the better view seems to me to be that the requirement of voluntariness, stated by Dixon J in McDermott v R (1948) 76 CLR 501 at 511-512, and followed and applied by later authority in Australia, relates to pressures, inducements or persuasions external to the accused.

72. This was the approach taken by Brennan J as a member of the Full Federal Court in Collins v R (1980) 31 ALR 257. This was a dissenting judgment, but as I understand the judgments he dissented not on issues of principle but on the application of the law to the facts. On the point now under consideration he said (at 307-8):
    "The ultimate question is whether the will of the person
    making the confession has been overborne, or whether he has
    confessed in the exercise of his free choice. If the will
    has been overborne by pressure or by inducement of the
    relevant kind, it does not matter that the police have not
    consciously sought to overbear the will....

A confession is not to be held to be involuntary merely
    because the confessionalist is by nature or temperament
    predisposed to confess and is furnished with an opportunity
    to do so; it is the effect of an external factor, of the
    kind referred to by Dixon J in McDermott's case, upon the
    will which determines admissibility. 'Voluntary' does not
    mean 'volunteered' but 'made in the exercise of a free choice
    to speak or be silent' (Lee, supra, at 149)....

There is nothing in Sinclair v R (1947) 73 CLR 316 to the
    contrary. In that case, although the accused was mentally
    abnormal, his particular abnormality was relevant only to the
    reliability of the confession (see at 332-3, 337) and, in the
    particular circumstances, not to its voluntary character.
    Indeed, Dixon J distinguished that case from a case where the
    circumstances might render a confession inadmissible by
    overbearing the will of a confessionalist of defective
    mentality...."

73. This view was referred to with apparent approval by Gleeson CJ in a judgment of the Court of Criminal Appeal of New South Wales in R v Azar (1991) 56 A Crim R 414 at 419, although he added:
    "It is unnecessary for present purposes to consider whether
    there might not be some circumstances in which the personal
    condition of an accused will alone be such as to render a
    statement involuntary: cf Ward (1979) 44 CCC (2d) 498. It
    suffices to say that, usually, the inquiry is as to some
    matter external to the accused."

74. On the basis of such reasoning a submission that the appellant's mental condition meant that his admissions were not made voluntarily would seem doomed to failure. This mental state might have been such that he felt and believed himself compelled to speak to the police, or it might have been such that he was incapable of making a proper choice, with due consideration of his own interests, whether to speak to the police or not. But such matters could not, on the approach discussed, render his admissions involuntary.

75. Such matters may, of course, be relevant to the exercise of the discretion which the trial judge had to exclude the admissions on the ground that their use in the trial would be unfair to the appellant: R v Lee (1950) 82 CLR 133; Cleland v R (1982) 151 CLR 1. I will deal with that matter later.

76. There are dicta in a number of cases suggesting or possibly suggesting that a mental or psychological condition which impairs the ability of an accused person properly to appreciate and exercise the choice to speak or remain silent goes to voluntariness: R v Buchanan (1966) VR 9 at 15; R v Parker (1990) 19 NSWLR 177 at 183; R v Smith (1992) 58 SASR 491 at 498-499. Whether this is so remains to be resolved, and it is a matter upon which I prefer not to express a view. This is an area in which it is dangerous to state general principles in too definite a fashion, and much will depend upon the facts of each case. The manner in which the facts of a case may straddle the various legal principles or rules, and the difficulty of dividing off the realm of one principle or rule from another in general terms is well illustrated by the following passage from the judgment of Wells J, speaking for the Court of Criminal Appeal of South Australia, in R v Ostojic (1978) 18 SASR 188 at 197:
    "For example, I could imagine one type of drunken person
    who is far gone in liquor and who, in the circumstances, is
    so plainly unaware of his surroundings, of the identity of
    his interrogator, and of the drift of the questions put,
    that he is incapable of choosing whether to speak or not,
    and is just gabbling. It would not be a wholly unacceptable
    proposition that what he said was not voluntary. Then
    again, the consumption of liquor may touch off some
    biological primum mobile and produce in the alleged offender
    such a disproportionate exhibition of bizarre behaviour that
    any responses to questions ought to be considered under the
sort of principles propounded in Sinclair (1946) 73 CLR 316.
    Or again, the liquor a suspect has consumed may not affect
    his will, or markedly disturb his mental stability, but may
    put him in a mood where he is so obviously indulging in
    fatuous jokes and other regrettable jeux d'esprit that he is
    manifestly off-guard. It may then be that, having regard to
    the seriousness of the matter about which questions are
    being asked, it would be ludicrous, and therefore not
    proper, to continue to question him. To try to formulate a
    rule fit to govern all such cases would put the law in
    danger of being shaped by the special subject matter and
    remove it from the protection of principle."

77. The purpose of this preamble is to explain why I do not, and why counsel for the appellant presumably did not, treat this case as raising an issue of voluntariness.

Admission of records of interview - unreliability 78. As I have said, the primary argument for the appellant was that the admissions should be excluded because they were unreliable.

79. A general statement of the law, which I gratefully adopt, appears in the judgment of Gleeson CJ in R v Parker (1990) 19 NSWLR 177 at 183 (I set out only the most relevant part of the judgment):
    "1. The fact that an accused person who has allegedly
    confessed to committing a crime was, at the time of the
    alleged confession, suffering from some form of unsoundness
    of mind or psychiatric disorder may, depending upon the
    circumstances, be of importance in considering the
    evidentiary value of the confession, and may in some
    circumstances deprive it of all evidentiary value: Jackson v
R (1962) 108 CLR 591. It does not, however, necessarily
    make evidence of the confession inadmissible: Sinclair v The
King (1946) 73 CLR 316 and R v Starecki (1960) VR 141. As
    Dixon J observed in Sinclair, an insane person is not
    necessarily an incompetent witness. Persons who are
    intellectually handicapped or suffer from disease or
    disorder of the mind are by no means necessarily incapable
    of telling, or admitting, the truth."

80. Does the question of unreliability involve the application of an exclusionary rule or the exercise of the discretion founded on unfairness? In Morris v R (1987) 163 CLR 454 the majority (Deane J, Toohey J, Gaudron J) left that question unresolved. They said (at 470):
    "Also, as was conceded by Dixon J in Sinclair v The King
(1946) 73 CLR 316 at 338, confessional material might
    properly be rejected if "made by a person whose unsoundness
    of mind is such that no account ought to be taken of his
    self-incriminating statements for any evidentiary purpose as
    proof of the criminal acts alleged against him." It is
    neither clear on existing authority nor relevant to the
    present case to decide whether the rejection of confessional
    statements in such circumstances is through the operation of
    an exclusionary rule or depends upon the exercise of the
    trial judge's undoubted discretion to exclude confessional
    statements when it would be unfair to the accused to admit
    them."

81. Accordingly, it is necessary to consider the matter on both bases.

Unreliability as a basis for exclusion 82. What is the factual basis upon which the court should proceed? This was considered by the High Court in Sinclair v R (1946) 73 CLR 316, although, as has been pointed out, without agreement upon the criterion for exclusion: Klemenko v Huffa (1978) 17 SASR 519 at 554-555; R v Bradshaw (1978) 18 SASR 83 at 87.

83. As Sinclair is the only case in which the High Court has given close attention to the question of the criterion for exclusion, it is necessary to deal with it in some detail.

84. Sinclair was an application for special leave to appeal from a conviction for murder. The only issue upon the application was whether certain confessions made by Sinclair were admissible. There were three confessions in all. The alleged murder was on 24 September 1935. One confession was made to a friend a few days after the murder. The second was a verbal confession to police made on 6 March 1936. The third was a confession in writing made to the police also on 6 March 1936. Sinclair was examined by a psychiatrist on 17 March 1936 and was certified as insane. The psychiatrist's evidence on the voir dire was that he was suffering from schizophrenia and showed a tendency to confuse facts and fantasy. The effect of the evidence of the psychiatrist on the voir dire was that the confessions might well be the product of a delusion and have no basis in fact, but the psychiatrist also said that Sinclair had not lost the ability to appreciate reality.

85. As to the facts of the case, Latham CJ said (at 324):
    "That evidence did not go further than to show that
    there was a real risk, recognized by psychiatrists, that on
    a particular occasion such a man as Sinclair might fail to
    distinguish fact from fantasy and that he might construct
    and relate an imaginative account of something that had
    never really happened. This evidence showed, as I think Dr
    McGeorge agreed, that it would be very wise, and indeed
    necessary, to check such evidence carefully by reference to
    independently proved facts and by any other available means.
    But it did not show that Sinclair had a mind so disordered
    and irresponsible that it would be dangerous to pay any
    attention whatever to what he said.

On the other hand, there was the character of the
    confessions themselves. They were not absurd or irrational,
    but were coherent, and all that could be said for the
    purpose of showing that they did not really constitute
    responsible and fully comprehended statements was that the
    language in the written confession was of a stilted and
    extravagant character."

86. Dixon J (at 331) referred to the fact that it was common for a schizophrenic to fail to distinguish unreal facts from reality, but noted that the ability to appreciate real occurrences when they take place is not necessarily absent. He said (at 331):
    "As a possibility the written confession made by Boyd
    Sinclair might be the product of a delusion without any
    basis of fact. Without comparison with external facts a
    psychiatrist has no means of telling whether a statement
    made by a schizophrenic is based upon fact or fantasy,
    unless it is irrational or too improbable on the face
    of it." Of the confessions themselves Dixon J said (at 330):
    "It is a florid and affected narrative, its style suggesting
    that the writer was less concerned with the predicament in
    which he stood or the human life that had been destroyed
    than with employing the cliches and fustian of the 'crime
    and horror' story. There is much in the document itself to
    indicate that it is the product of a mind whose world in
    unreal and whose responses to a situation are histrionic and
    dramatic and not those of sensible behaviour."

87. I turn now to the application of the law by the High Court.

88. Latham CJ said that there was no basis for rejecting the confessions on the basis that they were involuntary. He noted that the argument for the appellant was that an involuntary confession was excluded because it might be untrue, and accordingly that statements by a person suffering from schizophrenia should be rejected because they might be untrue. He rejected this argument and this method of reasoning. He said (at 323) that the test to be applied was the same test as would be applied if Sinclair had been called as a witness and the question of his competence to give evidence had arisen. It was a question of whether his mental condition was such "... that in fairness to him no attention ought to be paid to what he said" (at 323). In discussing the test in such a case he referred to the capacity of the witness to understand questions put to him and to make intelligible answers, and he also referred to the question of whether the derangement or defect of the witness was such as to make the person "highly untrustworthy as a witness" (at 323). He took the view, on the facts, that the judge was right in not rejecting the evidence of the confessions. He noted (at 325) that it was right to tell the jury to give such weight to the confessions as they thought proper, having regard to the medical evidence, the evidence of Sinclair himself and of other witnesses, and to any correspondence between the confessions and other facts as might be proved by other evidence.

89. Rich J treated the issue as one of voluntariness (at 326-327.)

90. Starke J (at 328) rejected the submission that the mere possibility that the confessions were the result of a disordered mental condition was sufficient to exclude them from evidence. His judgment suggests that the probability of unreliability might reach such a degree as to warrant the rejection of confessions.

91. Dixon J (at 332) described the issue as follows:
    "The case is, therefore, reduced to the question whether a
    confession is admissible as evidence upon a criminal trial
    when it appears that the prisoner making it was at the time
    of unsound mind and by reason of his mental condition was
    liable to confuse the products of his disordered imagination
    or fancy with fact. By 'liable' I mean that to do so is a
    recognized incident of his abnormal mental condition which
    might or might not occur."

92. He went on to reject, as relevant analogies, the approach taken when the issue of the competence of a witness arose, the approach taken to the competence of an accused person to plead to an indictment, and the approach taken to the voluntariness of confessions.

93. He noted (at 337) that:
    "The tendency in more recent times has been against the
    exclusion of relevant evidence for reasons founded on the
    supposition that the medium of proof is untrustworthy....We
    now call the evidence and treat the factors which formerly
    excluded it as matters for comment to the tribunal of fact,
    whose duty it is to weigh the evidence."

94. His conclusion (at 337-338) as to the case in hand appears from the following passage, the whole of which it is desirable to set out because it contains the factual basis for his comments:
    "Boyd Sinclair's mental state did not disable him from
    observing, appreciating, recollecting and recounting real
    occurrences, events or experiences. The fact that his mind,
    in its schizophrenic state, may have been stored with
    imaginary episodes and with the memory of unreal dramatic
    situations would, of course, make it impossible to place
    reliance upon his confessional statements as intrinsically
    likely to be true. The tendency of his mental disorder to
    dramatic and histrionic assertion formed another difficulty
    in attaching an inherent value to what he said. But it is
    to be noticed that his condition did no more than make it
    possible that the source of any confessional statement made,
    lay in these tendencies. His was not a case in which it
    could be said that the higher probability was in favour of
    his confession of such a crime being the product of
    imagination. Reason suggests that in such circumstances it
    is for the tribunal of fact to ascertain or verify the
    factual basis of the statements of a man in such a mental
    condition by comparing their contents with the independent
    proofs of the circumstances and occurrences to which they
    relate. It happens that external facts independently proved
    do supply many reasons for supposing that the confessional
    statements made by Boyd Sinclair were substantially correct.
    Though this consideration is not relevant to the question of
    legal admissibility of such statements, it provides an
    example of the inconvenience or undesirability of a rule of
    rigid exclusion.

It may be conceded that a confession may in fact be made by
    a person whose unsoundness of mind is such that no account
    ought to be taken of his self-incriminating statements for
    any evidentiary purpose as proof of the criminal acts
    alleged against him."

95. McTiernan J (at 340) referred to the fact that the evidence did not deny that the accused was capable of giving a true account of his conduct, and said that the burden was on the defence to prove that at the time the accused made each confession he was not rational enough to make a true confession.

96. In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confession is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible. That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession and, most importantly, the extent to which the contents of the confession are confirmed by independent proof of the events to which it relates.

97. At the other extreme a person may be incapable of understanding questions, and of making rational answers to them. The judgments suggest, without it being clear, that a confession will not be excluded unless the judge is satisfied, having heard evidence, that the mental condition of the person was such that the confession was attributable to a disorder which was such that no reliance could be placed upon the admissions made. In expressing the matter this way I have deliberately avoided any question of onus, the correct placing of which does not arise here.

98. It also seems to me that the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.

99. As far as I am aware none of the later case law takes the matter any further.

100. In Morris v R (1987) 163 CLR 454 Mason CJ (at 464-465) referred to the judgment of Dixon J in Sinclair, and to the passage which I have cited. He said, referring to the case:
    "The evidence did not show that he had a mind so disordered
    and irresponsible that it would be dangerous to pay any
    attention whatever to what he said."

101. No adverse comment was made by any member of the court upon the admission into evidence of admissions made by the accused, an alcoholic who at the time of the admission was in a state which made him prone to confabulation, which might cause him to impart information based upon fantasy. There was no independent support for the central admissions made by the accused.

102. That suggests, to my mind, a test for exclusion along the lines suggested by me above. That is, a test based upon affirmative satisfaction that the admissions are inherently unreliable, as distinct from possibly unreliable. The majority (Deane J, Toohey J, Gaudron J) also referred to the judgment of Dixon J in Sinclair (at 470-471), but made no comment upon the point now under consideration.

103. In R v Starecki (1960) VR 141 the Full Court of the Supreme Court of Victoria, after referring to the decision in Sinclair's case, said that the question confronting the trial judge when unreliability was raised was (at 152):
    "....whether the evidence before him showed that the
    accused, at the time he made those statements, was suffering
    from such unbalance of mind that no account ought to be
    taken of what he said."

104. In Klemenko v Huffa (1978) 17 SASR 549 Bray CJ referred (at 554-555) to the judgments in Sinclair and noted that it was not clear what the criterion was for exclusion of the evidence.

105. In R v Parker (1990) 19 NSWLR 177 at 183 Gleeson CJ noted that the presence of unsoundness of mind or psychiatric disorder does not necessarily make evidence of a confession inadmissible, but "....may in some circumstances deprive it of all evidentiary value."

106. In R v Collie (1991) 56 SASR 302 King CJ referred to the judgments of Latham CJ and Dixon J in Sinclair, and prefaced his reference to those judgments with the following remarks (at 314):
    "The fact that a confessional statement is made by a person
    who is suffering from schizophrenia, or is otherwise of
    unsound mind, does not necessarily render it inadmissible
    nor require that it be excluded in the exercise of the
    judge's discretion. The judge must consider whether the
    accused person was so mentally deficient at the time of the
    statement that its admission into evidence would be unfair
    to him."

107. He went on to say that neither the psychiatric evidence nor the nature of the answers given at the relevant interview constituted a sound basis for the exclusion of the evidence.

108. I turn now to apply these principles to the present case.

109. In his brief reasons for deciding that the evidence of the interviews should not be excluded, the trial judge said that he accepted "the evidence of the facts of his examination given by Dr Raeside," that he did not find the evidence of Mr Reid "helpful," and that Mr Raeside had agreed with remarks of Gleeson CJ in R v Parker (1990) 19 NSWLR 177 at 183 that a person with a disorder of the mind is not necessarily incapable of telling the truth. He went on to say that the submission in favour of rejection went to weight, and that he saw no unfairness in admitting the evidence.

110. It seems to me that His Honour must have found that the most one could say, on the evidence, was that the appellant's condition was such that his statement might be unreliable, and that, of course, was held insufficient in Sinclair for exclusion.

111. It is true that Dr Raeside did not say that the appellant's condition was such that he was incapable of telling the truth. And the fact that during the interview the appellant described some events in a rational manner indicates that he was capable of relating accurately events which had really happened. On the other hand there are, clearly enough, bizarre and irrational aspects of what he said. Moreover, Dr Raeside considered him to be "highly suggestible" as to questions relating to "the voices," which I take to mean that he was likely to accept and adopt a suggestion implicit in a question, in a manner which would not occur in the case of a normal person. In this respect the condition of the appellant seems to have been worse than was that of Sinclair, and the evidence goes beyond a mere possibility that the appellant's condition makes it possible that what he said was unreliable. Indeed, in a passage of evidence already quoted, Dr Raeside said that he would place "little credence" on what the appellant was saying and would "seek corroborative evidence" of what he said. And Dr Raeside said that he thought that the appellant did not know if he had killed his mother.

112. I must say that I find this evidence troubling. The case for exclusion is stronger than it was in Sinclair. The evidence suggests to me that the appellant's statements were in fact unreliable, but the trial judge, who had the benefit of hearing and seeing the witnesses, did not so find. As well, I must remind myself, there are portions of the interviews which exhibit no bizarre features and which were supported by other evidence, and this indicates that the appellant was not in fact generally incapable of distinguishing fact from illusion or delusion, not generally incapable of telling the truth. As well, (AB120) Dr Raeside did not say that what he said could not be believed, he said that he would seek corroborative evidence, although he did say that in the context of saying he would "place no reliance" on the appellant's testimony. I also remind myself, as Dixon J observed in Sinclair (at 337), that the tendency in the law is not to include testimony as incompetent, but to admit it and to leave it to the tribunal of fact to determine its weight.

113. In the end, with some hesitation, I have reached the conclusion that I cannot say that the trial judge was wrong in finding that the appellant's state was not such that the evidence of the interviews should have been excluded on the grounds of unreliability.

114. It follows, that whether Sinclair is an example of the operation of an exclusionary rule or an example of the discretion to exclude a statement because its use would be unfair, I am not able to say that the Judge was wrong in the present case. Even if a discretion is invoked, the factual basis for its exercise was not established.

Exclusion for unfairness not involving unreliability 115. I turn now to the question of the exercise of the discretion to exclude, on the grounds of unfairness.

116. The source of this well known discretion is based upon unfairness to the accused, and although the focus is upon the unfairness of the reception in evidence of the admission, the circumstances under which it was made are of obvious importance.

117. In most cases unfairness is founded upon the behaviour of the investigating police, and its effect upon the accused or upon the circumstances of the accused. But there is a significant body of case law which recognises that circumstances personal to the accused, for which the police are not responsible, may provide a basis for the exercise of the discretion.

118. As I have already noted, in Morris v R (1987) 163 CLR 454 at 470 the majority noted that the decision in Sinclair might be based on the unfairness discretion. Statements that the mental state of the accused may go to the exercise of the judge's discretion are to be found in a number of cases, although it should be noted that in some cases the mental state of the accused is linked to the effect upon the accused of the means by which the relevant statement was obtained.

119. In Sinclair, in a passage already referred to above, Latham CJ spoke (at 323) of a mental condition such that "in fairness" no attention ought to be paid to what the accused said.

120. In McDermott v R (1948) 76 CLR 501 at 507 Latham CJ, referring to the unfairness which gives rise to the exercise of the discretion, said:
    "Examples of such unfairness would be afforded by
    irresponsibility of the accused on the occasion when the
    statement was made or failure on his part to understand and
    appreciate the effect of questions and answers."

121. In R v Buchanan (1966) VR 9 Sholl J, referring to statements made by a person suffering from a head injury, said (at 15):
    "There may also be cases where the evidence shows that he
    made a statement when his will was capable of being easily
    overborne, or where it was extremely unlikely he would be
    able to exercise a proper judgment. In such a case,
    although the statement might be held voluntary, no doubt the
    exercise of the court's discretion would be likely to be
    exercised against admission."

122. In Klemenko v Huffa (1978) 17 SASR 549 Bray CJ dealt with admissions made by a person whose behaviour was consistent with him suffering from a manic disorder, but it was a disorder which was intermittent and the behaviour could have been pretended. There appears to have been no criticism of the behaviour of the police in the case in question. Bray CJ considered that this was a case which required the consideration of the exercise of the unfairness discretion, on the grounds of the "irresponsibility" of the accused, referring to the already cited remarks of Latham CJ in McDermott v R. In R v Bradshaw
(1978) 18 SASR 83 at 87 he expressed a similar view, and went on to say:
    "Questioning an irrational person with the object of
    obtaining a confession from him would, I suppose, in

    appropriate circumstances be an impropriety."

123. And in R v Ostojic (1978) 18 SASR 188, after the passage already cited from the judgment of Wells J, he went on to say (at 197):
    "As at present advised, I should not be disposed to limit
    the regular judicial discretion to a power to exclude
    evidence where unfairness to the accused lies in impropriety
    on the part of the police or of other law enforcement
    officers, and its effects."

124. In R v Parker (1990) 19 NSWLR 177 at 183 Gleeson CJ said:
    "4. Further, even if the confessional evidence is
    admissible, the intellectual or mental state of the accused
    may, in a number of possible ways, go to the exercise of a
    trial judge's discretion to reject the evidence: cf
McDermott v The King (1948) 76 CLR 501; R v Lee. It may,
    for example, touch upon the propriety of the means by which
    the confessional statement was obtained, the reliability of
    the statement itself, and the fairness involved in
    permitting the statement to be used against the accused."

125. In R v Collie (1991) 56 SASR 302 at 314, in the passage cited above, King CJ appears to treat mental deficiency as a basis for the exercise of the unfairness discretion.

126. In my opinion, in the absence of some direction from higher authority, this court should proceed upon the basis that the discretion to exclude confessional statements on the grounds of unfairness is not confined to situations involving police impropriety. In my opinion circumstances which provide a basis for the exercise of the discretion may rise out of the mental state of the accused person. A mental condition which produces an inability to make a proper choice whether to answer questions or not (as distinct from a loosening of the tongue which might flow, for example, from the effects of alcohol) may provide a basis for the exercise of the discretion. Likewise, as is suggested in some of the judgments referred to, irresponsibility in the sense of an inability to apprehend or to comprehend the situation in which the person is placed when called upon to answer questions, might provide a basis for the exercise of the discretion.

127. Some care is called for in this respect. The discretion arises in relation to admissions which are voluntary and not so unreliable that they should be excluded on the basis already discussed. Proper weight must be given to those matters. Too ready an application of the notion of unfairness in cases of mental abnormality and mental illness would subvert the rules relating to voluntariness and unreliability.

128. By this I mean that if evidence is not excluded because it is inherently unreliable, because no account ought to be taken of it, it would subvert that decision and the principle upon which it is based if concerns about, or a possibility of, unreliability were a basis for a discretionary exclusion. There would be no effective scope for the stricter test if that approach was taken.

129. In short, unreliability is a basis for exclusion, be it pursuant to a rule of exclusion or a discretion, only if the stricter factual test (as I have described it) is satisfied.

130. The mental condition of the accused might nevertheless be a basis for a discretionary exclusion, based on unfairness, but something other than possible unreliability must be found. Possibly unreliability cannot go into the scales as a makeweight, because what enlivens the discretion (if it be a discretion) is satisfaction of actual unreliability.

131. What is it about the mental condition of the accused which might enliven the unfairness discretion, absent the necessary finding as to unreliability?

132. Recognising the dangers of attempting too much precision, and reminding myself of what Wells J said in R v Ostojic (see above), in my opinion the enquiry is here directed to the accused's understanding of the situation in which he was when being questioned, his understanding fo the seriousness of the matter under consideration, and his ability to understand his rights and to consider his interests.

133. In my opinion the question to be answered in the present case is whether the accused's mental state was such that he was incapable of exercising, as distinct from disinclined to make, a sensible judgment about whether or not he should make a statement to the police. By a sensible judgment in this context I mean one which involves a meaningful consideration, within the limits of the accused's own intelligence, of the right to remain silent, and of the significance of the occasion (the making of a statement which might be used in evidence). It seems to me that a person might be suffering from a mental disorder which makes him liable to make statements which are the expressions of a delusion, and yet be capable of appreciating that he has no obligation to make a statement and capable of appreciating that any statement made might be tendered in evidence against him. But, on the other hand, such a person might be in a state such that no true appreciation or consideration of these matters takes place.

134. Although the trial judge referred to unfairness, the context suggests that he was considering reliability rather than the matters to which I now advert. It is not clear to me whether he gave separate consideration to the exercise of the discretion on the basis just identified.

135. I turn to the evidence. The first of the interviews under challenge took place at the request of the appellant. The second was at the initiative of the police. The third was at the request of the appellant. On each occasion his rights were explained to him quite adequately.

136. No question was asked of any of the witnesses about the appellant's capacity to make a sensible judgment about whether or not he should make a statement to the police. My reading of the evidence, such as it is, suggests that the accused understood the situation in which he found himself, but casts grave doubt upon his ability to make a proper judgment as to whether he should answer questions, and to make a proper assessment of his own interests. Most of the submissions to His Honour were directed to the reliability issue. The prosecutor made brief submissions on the issue of fairness, but did not address the appellant's capacity to make the judgment identified by me as relevant. On appeal the submissions likewise were based on the issue of reliability.

137. Once again, I have real concerns about this aspect of the matter. The onus was on the defence to establish circumstances requiring the exercise of the discretion on the grounds of unfairness. No evidentiary basis has been established, independently of the evidence suggesting unreliability. There is no evidence that the appellant was not in a fit state to make a proper judgment, and I do not think that I can assume that a person who is capable of telling the truth, albeit incapable of distinguishing reality from his delusions, is incapable of making the necessary judgment. At least, I cannot make that assumption in the absence of evidence upon the point.

138. I am therefore not able to say, despite some unease, that the judge should have exercised his discretion against the allowing of the evidence of the interviews. It would not surprise me, if the matter were explored with the experts, if their evidence established a basis for exclusion on this ground, but that is a matter of supposition.

Unsafe verdict 139. In determining whether the verdict was unsafe or unsatisfactory, it is the duty of this court to undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused: Morris v R (1987) 163 CLR
454.

140. In the present case there was adequate evidence of opportunity and of motive. But, to my mind, the disputed interviews were central to the prosecution case, because without them the prosecution could prove no more than opportunity and motive and circumstances capable of leading to the conclusion that the killer was known to the deceased and that theft was not the motive. Such material was capable of maintaining a conviction: cf Plomp v R (1963) 110 CLR 234. I do not suggest that a conviction could not be sustained without the disputed interviews, but rather that the statements made in the interviews were an important part of the case presented to the jury. One could not say that the jury would or must have convicted without relying upon them.

141. As to their central features, the actual killing of the deceased, there was no independent supporting evidence. It is clear from the evidence that the statements made might reflect delusions held by a disordered mind. The central statements themselves had disturbing features about them, being attributed to voices and dreams, and being mixed with denials as frequent (or almost) as the admissions. One could not, under these circumstances, proceed on the basis that the statements were intrinsically likely to be true: cf Morris v R (1987) 163 CLR 454 at 474. The undisputed evidence at trial was to the effect that one would look for independent support for any statements made. In those circumstances, the absence of evidence independently supporting or verifying the central admissions deprived the jury of any independent measure of the reliability of the statements: cf Morris v R (1987) 163 CLR 454 at 465 Mason CJ, at 474 Deane J, Toohey, J, Gaudron J.

142. There was, of course, evidence supporting the presence of the accused at the scene of the crime at about the relevant time, and supporting the prosecution case on motive, but none, so far as I can tell, independently supporting the central admissions made by the accused. A few of the admissions might be independently supported, but even they seem explicable on the basis that they reflect information acquired from other sources.

143. In summing up to the jury the trial judge reminded the jury quite thoroughly and adequately of the basis upon which the statements were attacked by the defence as unreliable. In that respect his summing up is beyond criticism. He told the jury to "exercise caution in any event about the way in which you treat these interviews" (summing up pg 56). He pointed out the contradictions in what the voices were saying (summing up pg 57).

144. But the judge did not warn the jury that before convicting upon the basis of the confessions they should be aware of the danger of so doing without independent confirmation of the incriminating features of the statements: cf Bromley v R (1986) 161 CLR 315 at 319. No such warning seems to have been sought by counsel. The jury should have been told that they could convict without such independent confirmation, but before doing so that they had to take into account that warning. The lack of such a warning is a further cause for concern.

145. In my opinion, if the jury relied upon the admissions made in the challenged interviews, they relied upon evidence which was, absent any independent support for it, incapable of supporting a conclusion of guilt beyond reasonable doubt. My basis for saying this is the evidence of Dr Raeside about the appellant's inability to distinguish between reality and what his voices were telling him and his dreams were revealing to him, coupled with the nature and terms of the statements themselves. In my opinion one cannot say that the jury did reach or must have reached its conclusion without relying upon that evidence, central as it was to the prosecution case.

146. Accordingly, in my opinion, the conviction must be set aside.

Direction on manslaughter 147. Since preparing these reasons I have had the benefit of considering the reasons in draft of Matheson J.

148. I am inclined to agree with him that the direction which the trial judge gave was erroneous. In a portion of the written direction given to the jury, which portion follows shortly after that set out by Matheson J, the trial judge directed the jury that the relevant act must be unlawful. But nowhere did he direct the jury that the act must be a dangerous one, "carrying with it an appreciable risk of serious injury"; Wilson v The Queen (1992) 174 CLR 313 at 333.

149. However, in the circumstances of this case I am inclined to think that the omission could not have caused a substantial miscarriage of justice. The deceased had been killed by a frenzied attack upon her, and it was one which the jury must inevitably have found involved an appreciable risk of serious injury.

150. Although the omission from the summing up was a significant one, I do not consider that the defect was so "radical or fundamental" that it excluded the application of the proviso: Wilde v The Queen (1988) 164 CLR 365 at 373; Glennon v The Queen (1994) 179 CLR 1 at 8, 12-13.

151. However, the Court has not had the benefit of submissions on these points, and I refrain from expressing a concluded view on any of them.

152. In my opinion a retrial should be ordered. The conviction recorded is unsafe because the jury had before it evidence of statements which evidence, for the reasons just indicated, provided an unsafe basis for convicting the accused. But the prosecution case is capable of sustaining a conviction without relying upon the statements referred to, and for that reason it is not appropriate to substitute an acquittal.

Appeal against sentence 153. In the light of my conclusions, it is unnecessary to consider the appeal against sentence.

Orders 154. In my opinion the appeal should be allowed, the conviction should be set aside and a retrial should be ordered.

JUDGE2 MATHESON J The facts are set out in the judgment of Doyle CJ and I need not repeat them. I agree with him that the conviction for manslaughter must be set aside, but I have reached that conclusion by a different route. Stated shortly, my view is that the highly relevant case of R v Sinclair (1946) 73 CLR 316 is distinguishable, and that a proper exercise of the trial Judge's discretion required him in the exceptional circumstances of this case to reject the evidence of the last three interviews that the appellant had with the police.

2. I propose to look very carefully at the facts in Sinclair. They are summarised in the judgments of both Latham CJ and Dixon J (as he then was). At pp320-321, Latham CJ said:
    " The confessions in question were three in number. The
    first was made by Sinclair to a companion named Graham a few
    days after the murder. According to Graham's evidence,
    Sinclair borrowed a revolver from him, failed to return it,
    explaining that he had lost it, and stated that he had
    murdered Smillie. The second confession was made verbally
    to officers of the Police Force on 6th March 1936. The
    third confession consisted of a statement in writing
    composed and signed by the accused on 6th March 1936.
    Evidence upon the voir dire was given by Graham and by Dr.
    J. R. McGeorge. I assume that the written statement of
    Sinclair was before the judge. Evidence was not given on
    the voir dire as to the verbal confession made to the
    police.

The statement to Graham deposed to by Graham was quite
    rational in all particulars. The written confession was
    also rational and intelligible, but it contained
    extravagances of language and was expressed in a
    melodramatic form. Dr. J. R. McGeorge, a psychiatrist of
    great experience, gave evidence that he had examined
    Sinclair on 17th March 1936 and then certified him as
    insane. He had seen him again on 28th March 1944 and on
    25th June 1946. He said that he was suffering from a mental
    condition known as schizophrenia, that he lived in a world
    of fantasy, and that he showed a tendency to live in a dream
    world, to confuse facts and fantasy. It was put to him
    interrogatively - '... a schizophrenic is unable to
    distinguish between the data of experience on the one hand
    and the data of imagination on the other? Answer: Yes,
    that may occur. His Honour: Is unable to, or may be unable
    to? Witness: May be unable to. That may occur.' I quote
    the following questions and answers:- 'His Honour: Q.
    Supposing he gave a detailed statement of his movements on a
    particular day. Do I understand you to say that that might
    be fact or it might be fancy? Yes, it would depend on the
    verification of his statements.

Q. Suppose the account which he gave of his movements on a
    particular day turned out to accord in considerable detail
    with what other persons observed him doing on that
    particular day, would that tend to show fact and not fancy?
    Yes.'

The evidence of Dr. McGeorge appears to me to be well summed
    up by an answer which he gave to counsel for the accused:-
    'Q. The confession of 6th March, which was made at a time
    when Sinclair was actually insane, might well be the product
    of a delusion and have no basis in fact. Do you agree with
    that? A. As a possibility, yes.'

There was also evidence that Sinclair earned his living as a
    warehouse employee, and that he was attending a technical
    college. Graham gave evidence that Sinclair was a moody
    person and said that he was rather eccentric because he did
    not take any active part in usual sports. He also gave
    evidence that he spoke from time to time about 'embarking on
    a life of crime.'" (My underlining.) At p324, Latham CJ said:
    " In the present case there was the evidence of Dr.
    McGeorge that Sinclair was a schizophrenic. That evidence
    did not go further than to show that there was a real risk,
    recognized by psychiatrists, that on a particular occasion
    such a man as Sinclair might fail to distinguish fact from
    fantasy and that he might construct and relate an
    imaginative account of something that had really never
    happened. This evidence showed, as I think Dr. McGeorge
    agreed, that it would be very wise, and indeed necessary, to
    check such evidence carefully by reference to independently
    proved facts and by any other available means. But it did
    not show that Sinclair had a mind so disordered and
    irresponsible that it would be dangerous to pay any
    attention whatever to what he said.

On the other hand, there was the character of the
    confessions themselves. They were not absurd or irrational,
    but were coherent, and all that could be said for the
    purpose of showing that they did not really constitute
    responsible and fully comprehended statements was that the
    language in the written confession was of a stilted and
    extravagant character. But self-dramatization and
    exaggeration do not amount to testimonial incapacity. There
    was also the evidence that Sinclair earned his living in an
    apparently ordinary manner, and no evidence was submitted of
    any abnormal behaviour on other occasions except that he was
    moody and talked about engaging in crime." (My underlining.)

3. This summary was supplemented in some respects in the judgment of Dixon J. At pp329-331, he said:
    " The murder of which Boyd Sinclair has been convicted
    was committed on the evening of 24th September 1935 when he
    had just turned seventeen years of age. The victim was a
    driver of a taxi cab. In Parramatta Road, Flemington his
    fare shot him three times in the back with a revolver and
    was then seen by a passing cyclist to make off over the
    fences of the sale yards in the vicinity.

The murdered man's dying depositions showed that the fare,
    who was a young man unknown to him, had engaged him near the
    Central Railway Station and had asked to be driven to
    Homebush. Near the sale yards he had directed his victim to
    stop and had then fired three times into his back and, after
    striking him on the head, had got out of the taxi cab and
    fled. For some months it could not be discovered who had
    committed the crime or why he had done it. The murder was,

    of course, reported in the newspapers which published the
    detailed circumstances of the crime so far as they were
    known.

Boyd Sinclair lived in Newtown with his mother and his
    father, a retired master mariner. He had left school at
    fourteen years of age and worked by day at a manufacturing
    chemist's and in the evening gave irregular attendance at a
    night school. He also took correspondence lessons in short
    story writing. A week or so before the date of the murder a
    youth, named Graham, with whom Boyd Sinclair had long been
    friendly, produced to the latter a revolver, somewhat
    tarnished with rust, which he said he had found. Graham was
    about to go into the country on a holiday and asked Boyd
    Sinclair to lend him a pea rifle belonging to the latter.
    In exchange for the pea rifle Boyd Sinclair asked for and
    obtained a loan of the revolver together with a leather
    holster which Graham had made for it. Graham came back from
    the country some days after the date of the murder. He
    returned the pea rifle and asked Boyd Sinclair for the
    revolver. He, however, said that he had lost it and then,
    on Graham showing incredulity, made the first of the
    confessional statements that are objected to. According to
    Graham he said, 'Did you read about a taxi driver being shot
    at Flemington the other night? ... I did it. ... It was me.'
    Graham, who had not in fact read of the crime, treated him
    as romancing and Boyd Sinclair went to get the newspapers
    but could not find them. In his evidence on the voir dire
    Graham said that he knew Boyd Sinclair and his moods very
    well and that he just left him; that Boyd had on a number of
    occasions outlined plans for embarking on a life of crime,
    plans based mainly on magazine thrillers which he was
    reading at the time. They included the obtaining of a motor
    car and an automatic gun. Graham seems to have told his own
    mother about Boyd Sinclair's claim to have committed the
    crime but otherwise he kept his counsel.

Evidently some information about Boyd Sinclair and his talk
    was carried to the police and eventually, on 6th March 1936,
    they visited his place of employment and took him to the
    detective office. There is no suggestion that any threat or
    promise was held out to him to induce him to confess but the
    result of what took place was the second confessional
    statement to which objection is made. Boyd Sinclair sat
    down in the detective office and spent an hour and half or
    more in writing an account of how he killed the taxi driver.
    It is a florid and affected narrative, its style suggesting
    that the writer was less concerned with the predicament in
    which he stood or the human life that had been destroyed
    than with employing the cliches and fustian of the 'crime
    and horror' story. There is much in the document itself to
    indicate that it is the product of a mind whose world is
    unreal and whose responses to a situation are histrionic and
    dramatic and not those of sensible behaviour. After Boyd
    Sinclair had signed his written statement, he was shown some
    undischarged revolver cartridges that had been found on the
    floor of the taxi cab. He said that the revolver had opened
    and they had fallen out of the chambers. He then went with
    the detectives over the route he said he had travelled from
    the picking up of the taxi cab and he showed the place of
    the murder and the course of his flight thence and journey
    home. He fixed the place where he said he dropped the
    holster, which had been found thereabouts by a schoolboy and
    identified. The account he gave orally of the crime and his
    escape and return home during this tour with the detectives
    may be regarded as the third confession objected to.

Upon the return of the party to the detective office Boyd
    Sinclair was charged with murder ..."

4. His Honour then summarised the evidence of Dr McGeorge in much the same way as did Latham CJ, and at p331 he added:
    "Without comparison with external facts a psychiatrist
    has no means of telling whether a statement made by a
    schizophrenic is based upon fact or fantasy, unless it is
    irrational or too improbable on the face of it.
    Self-accusation may result from several types of mental
    disorder including schizophrenia and it does occur, but not
    with great frequency. Exaggerated, stilted and unusual
    phraseology is characteristic of schizophrenics. They tend
    to dramatise themselves, imagining that they are the centre
    of some event in which they have in fact played no part."

5. Doyle CJ has summarised the evidence on the voir dire of Dr C W J Raeside, the experienced forensic psychiatrist who had been treating the appellant since his admission to James Nash House on 13 October 1994. I stress that Dr Raeside made it quite clear that he was of the opinion that on 13 October the appellant was psychotic, and that any information given by him to the police on 13 October would be totally unreliable. He did not merely say it was possibly unreliable. He said he did not think the appellant knew whether or not he had killed his mother. As far as the interviews of 7 and 16 November are concerned, Dr Raeside said that in his opinion the most likely explanation was that he was there repeating beliefs which he had come to hold during his psychotic state.

6. The appellant also called Mr M W Reid on the voir dire. He is a very experienced clinical neuro-psychologist and forensic psychologist, with a particular experience in different types of memory disorder and memory impairment.

7. He was asked if he had read the three last interviews, and he said at p160:
    "I read all those interviews, and it's certainly my
    opinion that these apparent recalls he has do not have the
    qualitative features of regained memories, but I believe
    they are more in the nature of his, what I would term,
    'imaginings'. At no stage in those interviews that I read
    could I see any consistent comment to the effect that he
    remembers doing such an act. They are invariably prefaced
    by comments such as 'I believe I must have done it', and I
    agree with your opening comment in that question that they
    do all seem to be based upon the experiences he had, which
    he termed 'visions' or 'dreaming'." Later he said at p163:
    "I think the term 'imaginings' is probably fairly well
    understood by most people, in that ... it's my impression
    that Mr Pfitzner has had these dreams, or dreams or visions
    as he describes them which are certainly not clear to him.
    They are apparently in the context of dreaming and he
    subsequently wonders about those dreams or images he sees.
    The more he wonders about these and contemplates them in his
    own mind, the more likely it is that they take on a sort of
    sense of reality to him. But there's - as I said, they
    don't appear to have any basis in reality from the way he
    describes them in his examination here."

8. In the course of his reasons for admitting the evidence of these two witnesses, the learned trial Judge said:
    " I accept the evidence of the facts of his examinations
    given by Dr Raeside, whom I thought to be an admirable
    witness. I note some effects of cross-examination on what
    he said. I'm sure he gave his opinions in a conscientious
    manner.

I, of course, make the same remarks about the integrity of
    Mr Reid. I confess I did not find his evidence helpful. It
    was not possible in his discipline in this sort of case to
    have been more precise."

9. I do not know why his Honour said that he did not find Mr Reid's evidence helpful, but it is to be noted that his Honour did not reject it as unreliable or anything of that sort. In my view, Mr Reid's evidence clearly supported that of Dr Raeside.

10. I note in passing that neither Dr Raeside nor Mr Reid were asked whether at the time of the last three interviews the appellant was capable of understanding the cautions that were administered, or even, if they were understood, whether he was capable of evaluating them so as to make a reasoned decision as to whether to answer questions (compare R v Smith (1992) 58 SASR
491 per Perry J at pp497-500).

11. I am not persuaded by the DPP that there is any evidence corroborative of anything the appellant says as to his beliefs about the actual killing of his mother. Indeed, some of the things he says in the interviews are contradicted by objective evidence. For example, in the third and fourth interviews he said that the pictures told him that he hit his mother in the head a couple of times with a panel beater's anvil kind of thing, which he also described as a crash panel tool. The forensic pathologist called by the Crown, Dr Manock, stated unequivocally that the lacerations on the scalp could not have been caused by that kind of object. During the same interviews, he said that he believed he took a sheet from a chair in his mother's lounge room and used it to wipe up blood, but the crime scene investigator said he saw nothing that indicated there had been any attempt to wipe or clean the scene. The appellant also said in the second, third and fourth interviews that he recalled waking up in a pool of blood on the floor next to his mother. The same investigator said that the floor around the deceased was tape lifted and there was no evidence of transference of any material to corroborate the appellant's belief that he had lain on the floor next to his mother.

12. In my opinion, there is much to be said here in favour of a ruling that the interviews were actually inadmissible, and that the question of discretion did not arise.

13. In Sinclair v The King (supra) Dixon J said at p338:
    " It may be conceded that a confession may in fact be made
    by a person whose unsoundness of mind is such that no
    account ought to be taken of his self-incriminating
    statements for any evidentiary purpose as proof of the
    criminal acts alleged against him. In such a case it might
    properly be rejected."

14. However, in Morris v R (1987) 163 CLR 454, after quoting this last passage, Deane, Toohey and Gaudron JJ said at p470:
    "It is neither clear on existing authority nor relevant to
    the present case to decide whether the rejection of
    confessional statements in such circumstances is through the
    operation of an exclusionary rule or depends upon the
    exercise of the trial judge's undoubted discretion to
    exclude confessional statements when it would be unfair to
    the accused to admit them." (My underlining.)

15. In Sinclair v The King (supra), Latham CJ said at p323:
    "The real question is whether the evidence shows that when
    Sinclair made his statement to Graham a few days after the
    murder and later in March 1936 to the police he was in such
    a mental condition that in fairness to him no attention
    ought to be paid to what he said."

16. In McDermott (1948) 76 CLR 501, Latham CJ referring to the unfairness which gives rise to the exercise of the discretion said at p507:
    "Examples of such unfairness would be afforded by
    irresponsibility of the accused on the occasion when the
    statement was made or failure on his part to understand and
    appreciate the effect of questions and answers."

17. In R v Collie, Krantz and Lovegrove (1991) 56 SASR 302, after referring to Sinclair's case, King CJ said at p314:
    " The fact that a confessional statement is made by a person
    who is suffering from schizophrenia, or is otherwise of
    unsound mind, does not necessarily render it inadmissible
    nor require that it be excluded in the exercise of the
    judge's discretion. The judge must consider whether the
    accused person was so mentally deficient at the time of the
    statement that its admission into evidence would be unfair
    to him."

18. In R v Parker (1990) 19 NSWLR 177 at p183, Gleeson CJ said:
    "... even if the confessional evidence is admissible, the
    intellectual or mental state of the accused may, in a number
    of possible ways, go to the exercise of a trial judge's
    discretion to reject the evidence: cf McDermott v The King
(1948) 76 CLR 501; R v Lee. It may, for example, touch upon
    the propriety of the means by which the confessional
    statement was obtained, the reliability of the statement
    itself, and the fairness involved in permitting the
    statement to be used against the accused." (My
    underlining.)

19. Having regard to the evidence of Dr Raeside and Mr Reid, to the many irrational and incoherent statements of the appellant in the last three interviews, and to the absence of "external facts independently proved (which) supply ... reasons for supporting that (the appellant's statements) were substantially correct", (compare Sinclair's case), I am persuaded that the admission of the interviews was unfair to the appellant, and that they should have been excluded.

20. There is another aspect to this appeal. The learned Judge referred to the alternative verdict of manslaughter several times in his direction. At pp37-38 he said:
    " Manslaughter is the unlawful killing of a human being
    without lawful justification or excuse, but it does not
    include the intention of causing death or causing grievous
    bodily harm. Proof of manslaughter does not require proof
    of intention to kill or cause grievous bodily harm. The act
    of killing must be deliberate, but the intention to kill or
    cause grievous bodily harm is not part of the crime of
    manslaughter. If, as Mr Braithwaite said, the accused
    picked up the knife and knew that he was going to inflict
    wounds on his mother, but just struck out with an otherwise
    blank mind or, at any rate, with no intention of causing
    death or grievous bodily harm, then that is manslaughter.

So the elements of the crime of manslaughter are (1) an act,
    (2) done by the accused or another human being, (3) which
    act or acts cause death, (4) and was deliberate, (5) and was
    done without lawful excuse or justification. There is no
    lawful excuse or justification suggested for the killing,
    whosoever did it, of Mrs Pfitzner. If you are satisfied
    beyond reasonable doubt that the accused killed his mother,
    but not that he intended to kill or cause grievous bodily
    harm, then the verdict must be not guilty of murder but
    guilty of manslaughter. I will explain the mechanics of all
    this when you return your verdict later.

If it is a reasonable possibility that the accused killed
    his mother deliberately and without lawful justification or
    excuse, but without the intention to kill or cause grievous
    bodily harm, it is manslaughter. If you happen to think,
    assuming that you find it proved beyond reasonable doubt
    that he killed his mother, which is the most contentious
    point of all in this case, but if you think that it is
    proved beyond reasonable doubt that, with his disturbed
    mind, he just struck out in a deliberate way knowing he had
    a knife and knowing that he was going to strike at his
    mother, but did not form an intention to kill or cause
    grievous bodily harm, then that is manslaughter." Later said at p74, his Honour said:
    "... if you have decided that it has been proved beyond
    reasonable doubt that he killed his mother, and has not been
    proved that he was insane, ask yourself 'Has it been proved
    beyond reasonable doubt that he killed his mother intending
    at the time to cause death or grievous bodily harm?' If
    'Yes', the verdict is 'Guilty of murder'. If 'No', the
    verdict must be 'Not guilty of murder, but guilty of
    manslaughter'."

21. After the jury had been considering their verdict for nearly two hours, his Honour received a communication which read:
    "Please give definitions of, in writing, guilty, not guilty,
    manslaughter (guilty), not guilty because of insanity."

22. After discussion with counsel, his Honour gave written answers to the jury's request which included the following:
    "3. MANSLAUGHTER

A verdict of guilty of manslaughter means the jury is
    satisfied that the accused is proved beyond reasonable
    doubt, by a deliberate act, to have killed his mother but
    without having the intention of causing death or grievous
    bodily harm."

23. It is sufficient to refer to Wilson v The Queen (1992) 174 CLR 313 to indicate that his Honour misdirected the jury in these passages. In their joint judgment, Mason CJ, Toohey, Gaudron and McHugh JJ said at pp333-334:
    " Manslaughter by an unlawful and dangerous act ... is a
    relevant and appropriate category of manslaughter.
    Manslaughter by the intentional infliction of some harm
    answers neither description. It continues the rigour of the
    early common law and ought to play no part in contemporary
    law. This approach leaves two categories of involuntary
    manslaughter at common law: manslaughter by an unlawful and
    dangerous act carrying with it an appreciable risk of
    serious injury and manslaughter by criminal negligence.
    There have been suggestions that these two categories should
    be replaced by one. But, as the law stands, there are
    differences between them. In the case of manslaughter by
    criminal negligence, it is unnecessary to prove that the
    accused's act was unlawful. And the tests of dangerousness
    are different. An appreciable risk of serious injury is
    required in the case of manslaughter by an unlawful and
    dangerous act. For manslaughter by criminal negligence, the
    test is 'a high risk that death or grievous bodily harm
    would follow'. As the question of criminal negligence was
    not relied on in the present appeal, we need say no more as
    to the appropriateness of the distinctions that presently
    exist between this category of manslaughter and manslaughter
    by an unlawful and dangerous act.

Adoption of the test in Holzer as to the level of danger
    applying to manslaughter by an unlawful and dangerous act
    and abolition of battery manslaughter do not create a gap in
    the law. Cases of death resulting from a serious assault,
    which would have fallen within battery manslaughter, will be
    covered by manslaughter by an unlawful and dangerous act.
    Cases of death resulting unexpectedly from a comparatively
    minor assault, which also would have fallen within battery
    manslaughter, will be covered by the law as to assault. A
    conviction for manslaughter in such a situation does not
    reflect the principle that there should be a close
    correlation between moral culpability and legal
responsibility, and is therefore inappropriate." (See also Peter Edward Jones (1995) 78 A Crim R 504 at pp508-509 and 516.)

24. Neither counsel asked his Honour at the end of his direction to the jury to correct what he had said, and the appellant has not made the misdirection a ground of appeal. Moreover, neither counsel referred to it during the argument on the appeal (see A H Omarjee (1995) 79A Crim R 355 at p371). If there had not been any other problem about the conviction here, I would be disposed to hear counsel on whether the proviso should be applied.

25. However, for the reasons already given I would allow the appeal and set aside the conviction. I would order a re-trial.

JUDGE3 MILLHOUSE J My brothers have shewn me copies of their Reasons. I have read them. Especially as the Chief Justice and Matheson J are pretty well agreed on what should happen, even if they have come to their conclusions in different ways, it would be pointless for me to write a third full set of Reasons.

2. I agree, without hesitation with what the Chief Justice has written, down to his heading "Unsafe Verdict".

3. I have hesitated for some time before concluding that I may agree with what he has written beyond that heading and therefore with the conclusion he has reached.

4. Absent the confessional evidence - I use that term loosely - there is sufficient evidence upon which a jury could convict. Of course, a jury would not necessarily convict. That is the rub. The jury did convict and may have done so upon the basis of the confessions. They were not warned of the danger of convicting on the basis of the confessions without independent confirmation of them. Had they been given the warning they may not have convicted.

5. I have looked again at Morris v The Queen. The obligation on us in considering the appeal is to make an independent assessment of the evidence. The Chief Justice has done so. On this issue of the confessional evidence, in a few words I have set out my own understanding of the point. I have to agree with him.

6. Accordingly I am driven to the same conclusion as my brothers, that there should be a new trial.

7. I appreciate what Matheson J has said about the direction on manslaughter but I would not be prepared to consider accepting that the learned trial judge misdirected the jury on the elements of manslaughter, until I had heard full argument on that point.

8. I agree that the appeal on conviction should be allowed and that there should be a new trial.